Wausau | Eau Claire ruderware.com MAHRA LEGAL UPDATE October 21, 2015 Sara J. Ackermann, Esq.

Wausau | Eau Claireruderware.com

MAHRA LEGAL UPDATEOctober 21, 2015

Sara J. Ackermann, Esq.

DOL-PROPOSED OVERTIME RULEWhat is the big deal about this proposal?While the proposed rule contains many provisions, its affect on overtime eligibility is the most controversial. Under current law, an employer need only pay certain white collar employees $455 per week ($23,660 annually) to avoid paying overtime. The new proposal calls for an increase in the current minimum salary threshold to $970 per week ($50,440 annually), with automatic threshold increases thereafter. The DOL estimates that this change will affect nearly 5 million workers who currently are not eligible for overtime.By way of example, in many industries (e.g, retail, fast food, gas stations) it is not uncommon for managers to earn annual salaries far below the proposed $50,440. If the rule becomes final, employers will need to either increase manager salaries or be prepared to pay overtime to those workers.

DOL-PROPOSED OVERTIME RULEWhere does the DOL get the authority to issue this proposal?The DOL cannot create new law. The Fair Labor Standards Act (FLSA) is the law that guarantees minimum wage and overtime for certain workers. However, the FLSA, passed by Congress and signed into law by President Franklin D. Roosevelt in 1938, specifically gives the DOL the authority to “define and delimit” the terms of the FLSA that exempt certain workers from overtime pay. Since 1938, the DOL has updated the exempt salary level requirements 7 times, most recently in 2004.

DOL-PROPOSED OVERTIME RULESo, the DOL can change the rules however it wants regarding overtime?Not quite. The DOL’s rulemaking authority is limited. After a rule becomes final, individuals and corporate entities may go to the courts to make a claim that a rule is unconstitutional, was made without following the notice and‐ ‐comment process, was arbitrary, or an abuse of discretion. In sum, the courts have the power to trump the DOL and invalidate a rule if the DOL goes beyond the authority delegated by the FLSA.

DOL-PROPOSED OVERTIME RULEWhat happens next?The DOL is currently sifting through over 200,000 comments it received from the public in response to the proposal. The DOL will review all the comments. If the comments include excessive questions and/or or criticisms, the DOL may decide to terminate the proposal or change aspects of the rule to reflect these new issues. If the changes are major, the DOL could publish a “supplemental” proposed rule. If the changes are minor the agency may proceed with publication of the final rule.

DOL-PROPOSED OVERTIME RULEHow long is all this going to take?It is difficult to predict how long it will take for the DOL to review submitted comments. In general, the process from proposed rule to final rule can take a year or longer.

DOL-PROPOSED OVERTIME RULEWhat should employers do now? Now is a good time for employers to audit all positions to make sure employees are properly classified as exempt/non-exempt in accordance with current law. The widespread press about the proposed rule might cause employees to question whether they are currently eligible for overtime.

Employers may also want to identify those positions that will no longer meet the exemption salary minimum, and assess the cost of raising salary versus paying overtime. Although right now those employees are not punching a clock, management could start assessing how many hours they are generally working per week so as to calculate what the overtime could be for these positions.

TITLE VII UPDATE

YOUNG V. UPS (THE SUPREMES-March 2015)

Facts: Employer’s light duty policy was limited to individuals injured

on the job, those with disabilities, and those who lost DOT

certification to drive. Issue: Whether, and in what circumstances, an employer that

provides work accommodations to non-pregnant employees with

work limitations is required under the PDA to provide comparable

work accommodations to pregnant employees.


Held: A pregnant employee can sue under the PDA if she can show

she 1) sought accommodation; 2) he employer refused

accommodation and 3) employer allowed other non-pregnant

employees “similar in their ability to work” an accommodation.

The employer can defend the suit if it can articulate a legitimate

reason as to Why it treated pregnancy differently.


What should employers learn from this case? Overbroad light duty policies should not discriminate against

pregnant women; UPS policy too broad (allowed many different classes to work in

light duty but excepted pregnancy); Can employer limited light-duty to ONLY work-related injuries?

Maybe! When considering any request from a pregnant woman, seek

counsel! EEOC is watching!

EEOC V. ABERCROMBIE & FITCH(THE SUPREMES-June 2015)

Religious Accommodation case. Employer must make exception to policies that conflict with

employees’ “known sincerely held religious beliefs or practices”

unless undue hardship. (Accommodation burden lower than ADA). Employee’s Practice must be Religious and Sincerely Held.

Note: Not the activity, but the motivation (beard for fashion or

for religious reasons?) Note: The activity might not be widespread (not working on

Sunday) but can still qualify if sincerely held.


Facts: Employee practicing Muslim who wears headscarf pursuant to

religious beliefs. Applied for position in A&F store, was interviewed

by Asst. Mgr that found she is qualified, HOWEVER, sought guidance

from upper management because she was concerned about scarf

violating the “Look” policy. Look policy prohibits caps because it is too informal for A&F image. Dist. Mgr said could not hire. Employee brought claim with EEOC—EEOC filed suit.


Held: An employer cannot make an applicant’s religious practice,

confirmed or otherwise, a factor in employment decisions. If an applicant proves that one of the employer’s motives for not

hiring her was that it knew or suspected she might need a religious

accommodation, she can prevail even if she never asked for

accommodation during the hiring process. To win, employer would have to prove no accommodation could

have been provided so to hire would have been futile.


Tips and Traps based on A&F: Don’t ask for information to that “documents” sincerely held

belief unless objective reason to question the sincerity of the

practice; Excessive and unreasonable documentation can be deemed as

retaliatory/harassment; Employee’s verbal explanation can be sufficient.


Example: Diane asks to be scheduled for “fewer hours” so she can attend

church more frequently. Employer denies the request because it is not clear what

schedule Diane is requesting or whether it is sought for a

religious belief. Diane’s request was vague, however, employer should ask for

more information rather than simply denying the request. What schedule? What purpose? How is current schedule a

conflict?


Diane would then have to provide sufficient information so that

employer could establish: Sincerely held belief; Precise conflict that exists; Whether granting accommodation would pose more than de

minimis burden on employer’s business. What if her request was for three week unpaid bereavement

leave?


Accommodation v. Harassment of Others: Employer need not accommodate belief/practices that harm,

disparage others or disrupt workplace; Flyers, verbal abuse, postings in office space, recruiting, all

generally not reasonable accommodations.

EEOC NOTICE OF PROPOSED RULE MAKING-- ON ADA AND WELLNESS PROGRAMS

EEOCACCOMMODATING MENTAL DISABILITIES IN

THE WORKPLACE

NLRB UPDATE

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www.ruderware.com

©2015 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.

This document provides information of a general nature regarding legislative or other legal developments. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed.

Wausau | Eau Claire ruderware.com MAHRA LEGAL UPDATE October 21, 2015 Sara J. Ackermann, Esq.

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