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November 23, 2016

United States District Court Enjoins Enforcement of New Overtime Rule

As discussed in Babst Calland’s Employment Bulletin on May 20, 2016, the United States Department of Labor (DOL) published a Final Rule titled Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (the “Final Rule”). Among other things, the Final Rule more than doubled the salary threshold required for employees to qualify for the executive, professional, or administrative exemptions allowed by the Fair Labor Standards Act (FLSA) and contained automatic updates to the salary thresholds. The Final Rule was set to go into effect on December 1, 2016. On November 22, 2016, however, the United States District Court for the Eastern District of Texas granted an emergency injunction to enjoin the application of the Final Rule. The injunction was filed against the DOL by twenty-two states and requested that the DOL be enjoined from enforcing the Final Rule. In granting the injunction request, the district court reasoned that the DOL was without statutory authority to issue and implement the Final Rule. Accordingly, the court enjoined application of the Final Rule, on a nationwide basis. Specifically, the court ruled that the DOL is enjoined from implementing and enforcing the Final Rule. Accordingly, until further notice, employers do not have to change overtime practices to comply with the DOL’s Final Rule. Babst Calland’s Employment and Labor Group will continue to keep employers apprised of further developments related to this and other employment and labor topics.If you have any questions or need assistance in addressing the above-mentioned area of concern, please contact John A. McCreary, Jr. at (412) 394-6695 or jmccreary@babstcalland.com, Stephen A. Antonelli at (412) 394-5668 or santonelli@babstcalland.com, or Christopher M. Helms at (412) 394-6477 or chelms@babstcalland.com. Click here for PDF.

July 6, 2016

New OSHA Injury Reporting Rule Will Preclude Automatic Post-Incident Drug Screens

Employment Bulletin Many employers have implemented policies mandating employees involved in an accident at the workplace to undergo drug and alcohol screening. Effective August 10, 2016 such blanket, automatic policies will likely run afoul of the injury reporting requirements of the Occupational Safety and Health Act (Act). On May 12, 2016, the Occupational Safety and Health Administration (OSHA) issued its Final Rule amending employers’ obligations to report and record injuries, and clarifying its interpretation of the injury reporting requirements of the Act. 29 CFR §1904.35(b)(1)(i) requires the employer to establish a “reasonable procedure for employees to report work-related injuries and illnesses ….” OSHA “clarified” this requirement by adding the following: “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness …” In the comments accompanying the Final Rule, OSHA noted that many commenters to the proposed rule complained that employer policies requiring automatic post-injury drug and alcohol testing were a form of adverse action that discouraged reporting. The comments state that: Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting. OSHA concluded that “the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.” OSHA did not ban all post-incident reporting, but the comments set forth the agency’s view that it should be severely limited: his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses….

May 20, 2016

Department of Labor Issues Final Rule Doubling Salary Threshold

Employment Bulletin On May 18, 2016, the United States Department of Labor (DOL) published a longexpected final rule that more than doubles the salary threshold required for employees to qualify for the executive, professional, or administrative exemptions allowed by the Fair Labor Standards Act (FLSA). Under the current law, for an employee to be exempt from the FLSA’s overtime provisions, he or she must earn at least $23,660 per year ($455 per week) on a “salary basis” and perform the job duties described in the Executive, Administrative, Professional and other exemption categories recognized by DOL. Effective December 1, 2016, however, that salary threshold will rise to $47,476 ($913 per week). The job duties tests will not change. This salary increase will mark the first increase in the salary threshold since 2004. The updated final rule is expected to enable approximately 4.2 million additional employees to earn overtime pay. In addition to doubling the overtime salary threshold, the final rule also: • increases the total annual compensation requirement for highly compensated employees (HCE) from $100,000 to $134,004; • establishes a mechanism for automatically updating the salary and compensation levels every three years, beginning on January 1, 2020; and • amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level. The full text of the final rule can be accessed beginning May 23, 2016 at http://federalregister. gov/a/2016-11754. Babst Calland’s Employment and Labor Group will continue to keep employers apprised of further developments related to this and other employment and labor topics. If you have any questions or need assistance in addressing the above-mentioned area of concern, please contact John A. McCreary, Jr. at (412) 394-6695 or jmccreary@babstcalland.com, or Stephen A. Antonelli (412) 394-5668 or santonelli@babstcalland.com.

March 25, 2016

Decoding the DOL’s Paid Sick Leave Rule for Federal Contractors

Employment Bulletin February 25, 2016 the United States Department of Labor (DOL) published a notice of proposed rule making to implement Executive Order 13706 (found at: https://www.gpo. gov/fdsys/pkg/FR-2015-09-10/pdf/2015-22998.pdf), “Establishing Paid Sick Leave for Federal Contractors,” which requires certain federal contractors to provide their employees with up to seven days of paid sick leave annually, including paid leave allowing for family care (the “Proposed Rule”). The 80-page proposal (found at: https://www.gpo.gov/fdsys/pkg/FR-2016-02-25/ pdf/2016-03722.pdf) will only be open for public comment through March 28, 2016. Thus, contractors or other interested parties are encouraged to act quickly if they wish to provide the agency with comments before the rule is finalized. To aid in this process and to preview the requirements soon to be imposed on federal contractors, we are providing an overview of the proposal’s key provisions. Contracts Covered. The Proposed Rule lists four major contract categories to which the executive order applies: (1) procurement contracts for construction covered by the Davis-Bacon Act (the “DBA”), (2) services contracts covered by the McNamara-O’Hara Service Contract Act (the “SCA”), (3) concessions contracts, and (4) contracts in connection with federal property or lands and related to offering services for federal employees or the public. The Proposed Rule states the Order does not apply to contracts worth $3,000 or less, where wages are governed by the Fair Labor Standards Act (the “FLSA”) – nor will it apply to contracts for the manufacturing or furnishing of materials, supplies or equipment. The rule will apply to new contracts or replacements for expiring contracts with the federal government that result from solicitations issued on or after January 1, 2017. And the “contractors” covered by the rule include not only the prime contractor, but “all of its subcontractors of any tier on a contract with the Federal Government.” Employees Covered. The employees covered by the…

November 1, 2015

Increased OSHA Penalties in 2016

Employment Bulletin A little-noticed provision in the recently-enacted federal budget permits the Occupational Safety and Health Administration (OSHA) to raise its monetary penalties – which have remained unchanged since 1990 – by nearly 80 percent. Read more.

October 1, 2015

Implementation of the Pittsburgh Paid Sick Days Act Delayed an Additional 60 Days

Employment Bulletin Pittsburgh recently joined the wave of localities across the nation to pass a new sick leave law. The Paid Sick Days Act (the Ordinance) (found at http://apps. pittsburghpa.gov/co/Paid_Sick_Time_Legislation_Text.pdf), approved by the Pittsburgh City Council and signed into law by Mayor Bill Peduto in August 2015, requires all employers within the city to create and implement paid sick time policies for their part-time and full-time employees. Although a pending lawsuit threatens to nullify the law, Pittsburgh employers should begin now to familiarize themselves with the basic requirements of the Ordinance, which is anticipated to take effect in March of 2016. Read more.

July 1, 2015

EEOC Rules Discrimination Based on Sexual Orientation is Sex Discrimination under Title VII

Employment Bulletin Less than one month after the United States Supreme Court issued its landmark decision legalizing gay marriage nationwide, the U.S. Equal Employment Opportunity Commission (EEOC) issued a controversial interpretation in Complainant v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration) in which it found that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an individual’s sexual orientation. The EEOC’s decision is a significant development in the law because it rejected several previous courts of appeals decisions holding that Title VII does not prohibit discrimination based upon sexual orientation. In this case, a supervisory air traffic control specialist with the Department of Transportation’s Federal Aviation Administration (FAA) filed an Equal Employment Opportunity (EEO) complaint alleging that the FAA subjected him to discrimination on the basis of sex. Specifically, the complainant alleged that he was discriminated against when he was denied a permanent position as a front line manager because he is gay. The EEO complaint was initially dismissed on timeliness grounds. The complainant appealed the dismissal to the EEOC, which reversed, concluding that the complainant’s allegations of discrimination on the basis of his sexual orientation stated a claim of discrimination on the basis of sex within the meaning of Title VII, and that such claim was timely. In light of its conclusion, the EEOC remanded the case for a decision on the merits. Read more.

June 1, 2015

Individual, Collective and Class Action Suits Alleging Misclassification of Oil and Gas Industry Workers Flood the Dockets

Employment Bulletin Individual, collective and class action lawsuits alleging misclassification of oil and gas industry employees under federal and state wage hour laws have flooded the Pennsylvania and Ohio dockets. This is occurring approximately two and a half years after the United States Department of Labor (DOL) prioritized an ongoing multi year enforcement initiative under the Fair Labor Standards Act (FLSA). By December 2014, this initiative resulted in more than 5,300 oil and gas industry employees recovering nearly $4.5 million in back wages for unpaid overtime and other wage violations. Read more.

May 1, 2015

The EEOC’s Resistance to ACA-Approved Employer Wellness Plans: Long Awaited Guidance May Be On Its Way

Employment Bulletin On April 20, 2015, the United States Equal Employment Opportunity Commission (EEOC) issued its long-awaited Proposed Amendment to Regulations under the Americans with Disabilities Act (the “Proposed Rule”), which provides guidance on the EEOC’s application of the Americans with Disabilities Act (ADA) to employer wellness programs. Specifically, the Proposed Rule addresses: (1) whether a wellness program is considered “voluntary”; (2) what notice must be provided to employees concerning a wellness program; and (3) the limits to incentives or disincentives that may be provided by employers. While the Proposed Rule offers some much needed clarity to the EEOC’s position on wellness programs, it also raises several questions and concerns in an already muddied area of law. The publication of the Proposed Rule triggered a 60-day public notice and comment period. Employers sponsoring wellness programs are encouraged to submit comments by June 19, 2015. Read more.

January 1, 2015

Department of Labor, Plaintiffs Target the Energy Industry for Alleged Wage Violations

Employment Bulletin Last month, the United States Department of Labor (DOL) announced in a press release that it has helped more than 5,300 oil and gas workers recover nearly $4.5 million in back wages for unpaid overtime and other wage violations as a result of an “ongoing multiyear enforcement initiative.” The DOL attributed the wage violations, in part, to the structure of the oil and gas industry in Pennsylvania and West Virginia. According to the DOL, job sites “that used to be run by a single company can now have dozens of smaller contractors performing work, which can create downward economic pressure on lower level subcontractors,” which can lead to noncompliance with wage and hour laws and regulations. Read more.