Insightful Discussions
Apr 24, 2017

Employment Law Issues

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What are your predictions regarding the overtime rule halted by a federal judge late last year?


While we don’t have a crystal ball, it seems likely the rule will be repealed, at least in part. The rule currently calls for an automatic increase in the overtime salary threshold every three years, and this undoubtedly violates the U.S. Department of Labor’s rulemaking procedures, so that provision will likely be repealed.

That being said, we do expect the salary threshold will be increased, but are hopeful we will see a more gradual phase-in approach, rather than doubling the salary threshold in one fell swoop.

Many employers are not equipped to absorb the costs of such a dramatic increase, and this would likely result in employers cutting hours and hiring more part-time employees to avoid overtime wages. This would likely end up working to the detriment of the employees it was designed to protect.


What advice do you have for companies that reclassified employees before the overtime rule was blocked?


While employers are not required to abide by their decision to reclassify employees in light of the federal injunction, employers are encouraged to consider the negative impact on morale that would likely result if changes are made.
Employees may have gotten accustomed to the additional wages overtime can provide and may resent being reclassified as exempt.

It is also possible that employees may be unhappy with the change from exempt to non-exempt, given the potentially new responsibility of keeping up with work hours and clocking in and out.

Employers are advised to pay attention to the general employee “rumblings” concerning the issue and weigh the potential benefits and drawbacks of reclassification.


What are the common misconceptions about workplace social media and internet policies?


The biggest mistake employers make regarding social media and internet policies is presuming that, simply because the business is not unionized, the National Labor Relations Act (NLRA) does not apply to them. In actuality, the NLRA applies to both unionized and non-unionized private employers. The NLRA prohibits employers from any action deemed reasonably likely to ban concerted activity - any activity by employees intended to better their working conditions and/or wages.

The National Labor Relations Board (NLRB) has determined that employer policies that prohibit employees from using the internet or social media to cast the employer in a negative light violate the NLRA, because such policies could reasonably be interpreted by employees to discourage concerted activity.


What steps should employers take in drafting a social media/internet policy?


The NLRB continuously changes what language it deems in violation of the NLRA, so employers are encouraged to consult with counsel before putting any policy into practice - especially pertaining to social media or the internet - to avoid running afoul of the NLRA.


How can companies protect against discrimination claims based on gender identity and orientation?


N.C. House Bill 2 was technically repealed by HB-142 on March 30.

HB-142 repealed the requirement that people in government-controlled buildings use bathrooms and locker rooms based on the gender identified on their birth certificates. So, we are now where we were before Charlotte enacted its bathroom ordinance. HB-142 ensures that the regulation of bathroom access rests with the legislature, not with local governments; that was the compromise, at least until 2020.

That being said, the EEOC has long-since argued that Title VII, which protects employees from discrimination on the basis of age, sex, race, religion or national origin, also protects against discrimination on the basis of sexual orientation and gender identity. On April 4, the Seventh Circuit Court of Appeals issued a ruling holding that Title VII prohibits discrimination on the basis of sexual orientation. This decision creates a split among the circuits, making a review by the U.S. Supreme Court highly likely in the near future.

In support of its position, the EEOC is filing suit against employers on the basis of sexual orientation/gender identity discrimination across the nation. While employers may or may not ultimately prevail in such a suit, the process of defending a lawsuit against the EEOC in federal court is extremely expensive and time-consuming. Employers should carefully consider whether they wish to “poke the bear” with a policy that allows discrimination on the basis of gender identity or sexual orientation. The more well-reasoned approach is to work with employment counsel to draft policies - including employee restroom policies - that foster inclusion and equality.


What are the most significant new developments that could impact employment law and worker’s compensation?


Most employers that have a policy providing for drug testing of employees include a provision for mandatory drug testing of all employees suffering on-the-job injuries.

However, in 2016, OSHA issued a new regulation designed to encourage the reporting of work-related accidents. OSHA clearly believes policies requiring mandatory testing of all employees suffering work-related injuries discourages employees from reporting on-the-job accidents and, as such, are unlawful.

Employers are still permitted to test employees who suffer work injuries, if they have a “reasonable suspicion” the employee was intoxicated at the time of the injury, and that the intoxication was a proximate cause of the injury.

Given this new development, the majority of current drug-testing policies need to be updated and reworded to provide employers with the leeway to investigate workplace injuries and maintain a safe environment, while ensuring the policy is lawful from an OSHA standpoint.
 

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