As long-time readers of this blog may recall, since 2015, the U.S. Department of Labor has been trying to update its Fair Labor Standards Act regulations to qualify more employees for overtime pay. For basic exemptions, meaning those that are not industry-dependent such as the administrative, executive and professional exemptions, employers may generally classify as exempt from overtime pay only employees who meet both a duties test and a salary test. Since 2004, federal law allowed employers to designate salaried workers who earn at least $455/week (the equivalent of $23,660/year) and meet certain “white collar exemption” duties-test requirements as exempt from overtime. This month, the DOL issued a proposed rule to increase that salary exemption to $679/week (equivalent to $35,308/year). If adopted, salaried employees who meet an applicable duties test and earn more than $455/week but less than $679/week will no longer be exempt from overtime under the basic exemptions. Importantly, the DOL proposed rule will allow employers to use nondiscretionary bonuses (for example incentive bonuses tied to productivity or profitability) and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the salary test. The DOL is also proposing to increase the exemption that applies to highly compensated employees. Currently, salaried employees who earn at least $100,000/year in salary are exempt from overtime regardless of whether they satisfy the applicable duties test. Under the proposed rule, the highly compensated employee salary threshold will increase to $147,414/year, meaning employees paid less than that threshold amount will be subject to a duties test or other exemption. The proposed rule does not seek a change to any of the duties tests for the basic exemptions.
Savvy employer takeaways: Employers need to evaluate their payroll to identify salaried employees who meet the applicable duties test but may no longer be exempt and assess whether increasing the employee’s salary or making the employee overtime eligible makes more sense. Employers also need to consider applicable state law, which may be more restrictive than the exemptions permitted under the FLSA.
Questions? Let me know.
On October 29th, New Jersey’s new paid sick leave law goes into effect requiring nearly all private-sector businesses to provide employees with paid sick time, regardless of the size of the business or the number of hours an employee works. Are you in compliance? Most businesses are not and will need to adopt new policies.
Get a head start on this and join me and my colleague on Thursday, October 18th for a seminar analyzing and discussing the impact of the new sick leave law changes and what it means for NJ employers.
Other hot topics in employment law will include:
- Medical marijuana in the workplace
- New Jersey’s Equal Pay Act
- Update on disability and mental health in New Jersey
- Wage & hour laws and the pitfalls of an independent contractor
- Adam E. Gersh, Labor & Employment Shareholder, Flaster Greenberg PC
- Jeremy Cole, Labor & Employment Attorney, Flaster Greenberg PC
Date & Time:
Thursday, October 18, 2018
Registration and Networking: 8:00 – 8:30 a.m.
Seminar and Q&A: 8:30 – 9:30 a.m.
Flaster Greenberg PC’s Cherry Hill Office
1810 Chapel Ave West
Cherry Hill, NJ 08002
Attorneys: 1 substantive PA CLE credit (NJ reciprocal)
Accountants: 1 PA & NJ CPE credit
Human Resource Professionals: 1 HRCI credit
Not able to make it in person? You’ll still be able to attend the presentation via Facebook Live! Tune into FG’s Facebook Page on October 18th at 8:30 a.m. to hear from our panelists as they navigate through the new law and help you identify the strategy that best suits your business.
*Please note that attendees must be present in-person to be eligible for Pennsylvania and New Jersey CPE, HRCI and substantive Pennsylvania CLE credit.
Non-compete and other restrictive covenants are commonly used by employers in many industries to protect their trade secrets and legitimate business interests. While employees may be willing to sign them when they take a new position, they are often frustrated by them when it comes time to look for a new job. Some employees take to Google to see if their agreement is enforceable. What they find on Google often provides them with false confidence that their non-compete or other restrictive covenant is unenforceable, but relying on Google research in the complicated, fact-sensitive legal morass of non-compete agreements is risky business. True, a Google search can turn up numerous court opinions that express the view that non-competes are viewed unfavorably by courts as anti-competitive restraints on trade and, as such, are narrowly construed and enforced only to the extent that they protect a legitimate business interest of an employer. However, those cases may or may not be useful in deciding whether your restrictive covenant is likely to be enforced. First, the law governing non-competition agreements varies from state to state. Thus, an opinion by a court in California applying California law (which bars enforcement of restrictive covenants except under specific, narrow circumstances), for example, is of little help in assessing whether a court in New Jersey or Pennsylvania, where non-competes are routinely enforced, is likely to enforce a restrictive covenant under that state’s laws. Making the analysis even more complicated, courts decide whether to enforce restrictive covenants based upon a thorough review of the specific language used in the agreement; even slight variations in the language of the agreement can lead to vastly different results. In addition, because they are viewed as anti-competitive, a court will generally enforce one only if it is well drafted so that its restrictions narrowly target the business interests at issue and nothing more. The finer points of enforcing restrictive covenants, such as non-competes, are too detailed to address here, but employees with employment agreements that contain restrictive covenants and businesses that are hiring employees subject to them should not rely on Google to assess their enforceability or their liability for a breach.
Savvy employer takeaways: Employers should have an experienced employment lawyer evaluate the enforceability of their employees’ post-employment restrictions and the enforceability of post-employment restrictions by which prospective employees may be bound. Employers should also require candidates to disclose whether they are subject to any restrictive covenants before offering them employment.
Questions? Let me know.
When Chipotle Mexican Grill Inc. fired store manager Jeanette Ortiz, accusing her of stealing $626 in cash from the safe, it could never have expected its minimal theft loss to balloon into a nearly $8 million jury verdict against if for wrongful termination of Ortiz. Even worse, an assessment of potential punitive damages against Chipotle in that case is still pending. Nevertheless, according to an article in the Fresno Bee, jurors awarded Ortiz nearly $8 million after finding that Chipotle had wrongfully terminated her. According to Ortiz, she was innocent of theft and was set up in retaliation for filing a claim for workers’ compensation benefits due to a work-related wrist injury. The article reported Chipotle had video of the theft but refused to show it to Ortiz and eventually taped over the evidence. Apparently, Chipotle failed to preserve text messages and other written notes about the firing as well. Although the article does not elaborate, it is quite likely the jury reached an adverse inference that the missing evidence would have been helpful to Ortiz in proving her case.
Savvy employer takeaways: While it is impossible to know for sure how much weight the missing evidence had on the jury’s decision, employers are wise to preserve all evidence relating to employee misconduct to avoid even an appearance of wrongdoing. As in politics, although the original offense is bad enough, the ensuing cover-up is always worse.
Questions? Let me know.
The U.S. Court of Appeals for the Sixth Circuit sided with a church operating the Lord’s Buffet and against the Department of Labor (“DOL”) in a case testing the reach of the Fair Labor Standards Act (“FLSA”). In Acosta v. Cathedral Buffet, Inc., the appellate court reversed a trial court ruling and held that volunteers who staffed a church-operated buffet are not employees and the Grace Cathedral Church did not run afoul of the FLSA by failing to pay the volunteers minimum wage. The DOL claimed the church and its televangelist pastor illegally used unpaid labor by staffing its buffet with volunteers from the congregation. In this case, the church operated the buffet restaurant for a religious purpose: to allow church members to proselytize to patrons. Its operations relied heavily on church volunteers who worked alongside paid employees performing the same work. While the work performed was comparable to that of an employee, the Sixth Circuit held the DOL overstepped the bounds of the FLSA by applying it to the volunteer workforce. In part, the Court’s decision relied on a determination that the volunteers had no expectation of payment and were not economically reliant on the work of the church.
Savvy employer takeaways: Employers with charitable missions and those who support charities must be careful to delineate work from volunteer activities to avoid claims that the volunteers should have been paid for their activities.
Questions? Let me know.
In Malee v. Anthony & Frank Ditomaso, Inc., the Court served a surprise to a shareholder of a corporation that owned a restaurant, who sought to be dismissed from a FLSA case brought by employees of the restaurant. The shareholder alleged he did not participate in the business on a day-to-day basis and, therefore, was not an “employer” within the meaning of the FLSA. The Court refused to dismiss the claims, finding that the shareholder’s attendance at staff meetings, and advice on operating the business created a triable issue of fact as to whether the shareholder was, in fact, an employer within the meaning of the FLSA.
Savvy employer takeaways: The FLSA and overlapping state wage and hour laws often impose individual liability on officers, owners, and others involved in decisions to deprive employees of wages owed.
Questions? Let me know.