Monthly Archives: November 2016

BREAKING NEWS: Federal Judge Halts Implementation of the DOL’s New Overtime Regulations

On Tuesday evening, just days before the U.S. Department of Labor’s new overtime regulations were set to go into effect, a Texas federal judge blocked the December 1, 2016 implementation of the regulations, issuing a temporary injunction with nationwide applicability. The regulations blocked by this order not only provided for a substantial increase in the salary threshold required for the “white collar” exemptions, but also provided for automatic increases in the salary threshold every three years. The judge stated that, in drafting these rules, the DOL exceeded its authority and ignored congressional intent.

This order is not a final order, but merely a finding by the court that the plaintiffs have established they will likely succeed in their challenge to the rules. What happens next is yet to be determined. The DOL may appeal to the 5th Circuit Court of Appeals, Congress could pass one of the two pending bills drafted to alter the DOL’s regulations or draft a compromise bill, or the case is litigated absent a DOL appeal.  For now, the walk away for employers is that the rule will not take effect on December 1, 2016.

For employers that were not quite ready for the new rules, this decision will provide some additional time to evaluate and plan, just in case the temporary injunction is overturned. For employers that have already made changes to employees’ pay structures, there is no legal requirement or prohibition that such changes be maintained.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

“One-Stop” Online Portal for Workers to Submit Complaints about their Employers?

For years, employers have been required to post notices providing employees with information about their rights and the government agencies that can assist them if they believe that their rights have been violated. Now, the Department of Labor, along with the Department of Justice, Equal Employment Opportunity Commission, and the National Labor Relations Board, is developing a website, www.worker.gov, that will be a “one-stop” platform for employees to electronically submit complaints with the appropriate government agencies. The website will help workers understand and exercise their rights and will operate as a portal that predicts workers’ needs without forcing them to guess which federal agency or statute covers their situation.

The website is currently under development. At this time, the site merely provides guidance to specific types of employees (day laborers and office, nail salon, restaurant, and construction workers) regarding their rights and how to file complaints. Through a series of questions, the website directs employees to the appropriate government agency responsible for dealing with the specific complaint.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The Customer is Not Always Right…

Most employers understand Title VII’s requirement to provide a workplace free of unlawful harassment and discrimination. Some employers may not be aware that this obligation extends beyond co-workers’ harassment to include customers’ mistreatment of employees. Recently a situation arose on an Alaska Airlines flight that demonstrated how this obligation to provide a workplace free of unlawful harassment and discrimination extends to customers.  During a female flight attendant’s life-vest demonstration, a male passenger yelled, “ooh, sexy.” When asked by the flight attendant to be respectful, the passenger responded “C’mon, I’m just playing with you.” Shortly thereafter, Alaska Airlines required the passenger to leave the plane.

When an employer becomes aware of harassment on the basis of a legally protected characteristic (sex, disability, religion, race, color, etc.), the employer is required to take prompt remedial action to protect its employees – even if the harasser is a customer.

It should be noted that despite the offensive nature of the passenger’s conduct, that conduct alone would not constitute sexual harassment creating liability for the employer. However, when combined with other conduct the flight attendant might face (from anyone, that day or over time), failure to act in the employee’s defense could certainly give rise to a harassment claim and employer liability. The EEOC advises, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.”

For harassing and offensive conduct to rise to the level of unlawful harassment (sexual harassment, racial harassment, etc.), the conduct must relate to a protected characteristic or conduct, and enduring the conduct must become, expressly or impliedly, a condition of employment or be so severe or pervasive that a reasonable person would consider the work environment to be intimidating, hostile, or abusive. The law also protects employees from retaliation relating to complaints and investigations.

Defending these claims is expensive. More and more employers are stepping in earlier to prevent them altogether. In this case, Alaska Airlines made a strong statement in favor of protecting employees, dissuading future conduct of this type, and prevented future claims. When the situation is not as time-sensitive, a quick call to an employment lawyer may help employers frame a diplomatic approach that fully protects the employee and prevents harassment.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628