Employment Law Update - Winter 2017

COURT BLOCKS OVERTIME RULE AT THE “11TH HOUR”

Less than three weeks before the anticipated December 1, 2016, effective date of the Department of Labor (DOL) Rule doubling the exemption salary requirement to $47,476 per year, a U.S. District Judge in Texas entered an order temporarily blocking the increase. This order was entered in a case filed by 21 states claiming that they would be irreparably harmed if the Rule went into effect and that the DOL would not be harmed by the delay. Texas U.S. District Judge Amos Mazzant sided with the 21 states and entered an order enjoining the Rule and preserving the “status quo” in order to allow the Court to determine exactly what authority the DOL had to make the Rule as well as decide whether the final increase is otherwise valid.

While the DOL initially strongly disagreed with the Court’s decision, this agency appears to be reassessing its position now that the new administration has taken over. In that regard, on January 20th, President Trump’s Chief of Staff, Reince Priebus, instructed the heads of the DOL and other agencies to freeze all pending regulations. Shortly thereafter, the DOL filed a motion in the Texas litigation to extend the deadline for its next submission in support of its appeal of the exemption salary increase injunction. Accordingly, it appears more and more unlikely that the proposed salary requirement increase will go into effect.

One thing is for sure, the required salary increase is not in effect. This has left a number of employers who adopted salary changes in anticipation of the change in the law in a quandary as to whether to roll those changes back or not. Such a move could create substantial morale issues and it is not certain that some salary change will not be put into effect in the relatively near future. Given all of the questions that remain with this and other wage-hour rules, the Former Regional Enforcement Coordinator for the DOL Wage Division, Patricia Slate, will be on hand at the April 20th Richmond showing of the 33rd Annual Employment Law Update to provide attendees with the latest developments and practical ways to handle all wage-hour compliance issues.

EEOC “Report Card” for Fiscal Year 2016

This past November, the Equal Employment Opportunity Commission (EEOC) released its annual “Performance and Accountability Report,” which details the agency’s record in receiving, resolving and litigating bias charges against private and government employers. The EEOC actually resolved more charges (97,443) than were filed (91,503) during fiscal year 2016. This led to a reduction in its backlog to 73,508 pending charges as of September 30, 2016. The EEOC also obtained more than 482.1 million dollars for victims of alleged discrimination during fiscal year 2016.

So the EEOC “Report Card” reveals that the EEOC is more than keeping up with new administrative charges filed. But when it comes to lawsuits filed, the EEOC actually filed fewer lawsuits during fiscal year 2016 than it filed during any of its last four fiscal years. This was a result of the EEOC’s focus on larger, systemic cases involving multiple workers in an effort to get the most “bang for its buck” in utilizing its resources.

FYI

Of course, the emphasis on systemic, larger cases and the EEOC’s 2017 “Report Card” may be dramatically different depending upon the impact of the Trump Administration on the composition and direction of the 5-member EEOC. The first harbinger of what employers can expect from the new Administration will be President Trump’s appointments to the five-member EEOC.

FORMER SECRETARY OF COMMERCE AND TRADE TO SPEAK AT K&C SEMINAR

The former Secretary of Commerce and Trade for Virginia, Maurice Jones, will be the featured luncheon speaker for the April 20, 2017 showing of the 33rd Annual Employment Law Update at the Greater Richmond Convention Center. Maurice is currently the President and CEO of Local Initiatives Support Corporation and has held top positions with a number of other private and public organizations over the course of his career, including the US Department of Housing and Urban Development (HUD) and The Virginian-Pilot newspaper in Norfolk. In keeping with the seminar’s theme, “Finding a Seat at the Table,” Mr. Jones will be providing valuable insight and advice to Human Resource professionals as to how they can convince upper management to listen to them as effective members of their management team.

The 33rd Annual Update will also feature members of the K&C Employment Team and speakers from several key federal and state employment law agencies. The Deputy Director for the Charlotte Region of the Equal Employment Opportunity Commission (EEOC), Thomas Colclough, will be on hand along with the Director of the Richmond EEOC Office, Daron Calhoun, to provide attendees with the latest information regarding the new EEOC Retaliation Guidance as well as practical tips for employers who must now use the new EEOC digital charge filing system. Attendees will have the opportunity to have any and all employment law questions answered by these and other expert speakers throughout the day and the speakers will also be available in the ever-popular K&C “Answer Booth.”

Seminar topics will include Effective Workplace Harassment Investigations, Hiring the Right People, Wage-Hour Requirements and Obamacare/Other Benefits Under the New Administration. Not only will attendees earn 6 HRCI credits and/or 5 SHRM PDCs, but one lucky attendee will win a $350 gift certificate. For more information or to register, visit www.kaufcan.com/events or contact Andrea King at (757) 624.3232.

W-2 SCAM CONTINUES TO PLAGUE EMPLOYERS

One of the easiest ways for criminals to obtain personal data is to have someone send it directly to them. Unfortunately criminals know this and are obtaining thousands of social security numbers from well-meaning employees through targeted phishing email scams.

The scammer’s email appears to be from someone in the company who may have a reason to review wages. At first glance the email address appears to be legitimate, but upon closer look some portion of the email address has a misspelling that is easily overlooked. For example, the number “1” may have been used in place of the letter “l.” The email is usually very short and may simply say “Please send me the 2016 W-2s in pdf format.” If the employee responds and sends the requested information, the employer becomes a victim of a data breach and needs to respond in an organized and expeditious manner.

After discovering the breach, there is usually a flurry of activity that must be coordinated with a true sense of urgency to notify the affected employees and former employees. Employers may also offer services designed to help protect and, if needed, repair their identities. The response to affected individuals must be accurate and timely, taking into consideration multiple state and federal laws that may be implicated.

For more information on this W-2 scam and appropriate responses, please contact Nicole Harrell by phone at (757) 624.3306 or email at njharrell@kaufcan.com.

NEW OSHA/VOSH INJURY REPORTING AND POSTER

On December 1, 2016 The Virginia Department of Labor and Industry, Division of Occupational Safety and Health (VOSH) promulgated a new administrative regulation regarding reporting of injuries and enhanced anti-retaliation procedures. VOSH was reacting to a change mandated by its federal counterpart, OSHA, which also required a new workplace poster effective January 1, 2017. For a copy of this new poster, employers may access the Federal OSHA website at https://www.osha.gov/Publications/poster.html, but keep in mind that to be compliant with applicable law, the poster must be at least 8.5 by 14 inches.

The strengthened protections against retaliation are emphasized on the new, required poster. Importantly, OSHA/VOSH previously would only respond to retaliation concerns if alleged in a formal complaint by an employee. Effective January 1, 2017, retaliation may also be cited just as other safety and health violations when uncovered during a routine inspection or even from an employee complaint regarding an unrelated matter.

The requirement to submit injury and illness reports electronically will be phased in over a period of two years. OSHA has determined that such electronic reporting will facilitate a more efficient use of its enforcement and compliance assistance resources. Also, since some of the data will also be posted to the OSHA website, OSHA feels that such public disclosure will encourage employers to improve safety and provide valuable information to workers, job seekers, customers and the general public.

Practical Pointer

With this enhanced focus on preventing retaliation, employers may want to consider changes to any policy or practice which would discourage injury reporting. For further information about the new reporting requirements and what impact they may have on a particular workplace, employers are invited to contact Robert J. Barry by phone at (757) 624.3268 or email at rjbarry@kaufcan.com.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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