Wednesday, November 23, 2016

New Overtime Rule Dead (for now)

Overtime Overheat....

Judge Amos L. Mazzant ruled the DOL’s new overtime rule "unlawful" and granted a temporary injunction preventing the new rule from going into effect on December 1, 2016.

As many of you may know, two lawsuits were filed in opposition to the new rule – one by 21 states, and the other by the US Chamber of Commerce (representing more than 50 business groups). Those two groups together asked for an emergency injunction earlier this month. Judge Mazzant of the U.S. District Court for the Eastern District of Texas granted that emergency injunction yesterday. The new rule would have required employers to pay overtime to anyone earning less than $913 per week (which amounts to $47,476 annually) beginning December 1.

While this is a temporary halt, it allows time for the lawsuits to be heard in full before having the rule go into effect. A big win for business.

For an in-depth and complete analysis of this news, please see Eric Meyer’s post on The Employer Handbook. You won’t find a better explanation of the move and what it might mean for HR pros and your companies.


Oh, and

Thursday, November 17, 2016

When is “Wrong” not Wrong?

So, the furor over Donald Trump’s election continues on a daily basis. Both sides really need to get a grip and move on to more productive efforts.

Having said that, I need to partially revisit a post I made last month. In Overtime Simmer I covered several issues of interest, including a recent appeals court case of a NLRB decision. The importance, as I mentioned in my earlier post, is in Judge Patricia Millett’s opinion, as it relates to numerous other NLRB rulings that allow and therefore condone behavior on the picket line or in other union or union organizing activities that would be strictly illegal in any other workplace setting.

What does this have to do with what’s going on now and the protests against President-Elect Trump? I’m so glad you asked…….

Many of those protesting, as well as the Obama administration, the Clinton campaign and too many other Democrats to count, continue to criticize and condemn Donald Trump for inappropriate things he has said in the past in reference to women, immigrants, and others. And they should condemn those comments. We all should. They say they are now afraid that these comments predict widespread discrimination and harassment. I guess they don’t understand that federally approved discrimination and harassment occur on an almost daily basis. Read on…

Shouldn’t our criticism and condemnation extend to all instances of such behavior? If you listen to some of these folks, maybe not. President Obama and many in his administration have been actively supporting and promoting unions. (Anyone remember the "worker voice summit"? And that’s just one example of the active support and promotion I’m referring to.) How can they actively support and promote a federal agency that allows, condones, and I submit, therefore encourages this same type of behavior – and worse?

It’s wrong to hurl racial slurs at people, it’s wrong to fling sexual or ethnic slurs at people. It’s wrong to sexually assault anyone. We all know this. Or, at least I thought we all knew this. It becomes painfully clear that when it comes to unions and their activities, that there are many, including President Obama and his administration, who do not think those things are wrong. That my friends, is not only the height of hypocrisy, but it is also Just. Plain. Wrong.

I would so love to hear an explanation from these folks concerning this stunning inconsistency.

Thursday, November 10, 2016

What Now, Mr. Trump?


A new sheriff is in town…..

I could almost hear crowds of HR pros jumping up and down on Tuesday night into Wednesday morning at the news of a Trump win. I can imagine many thinking a Trump presidency and a Republican controlled Congress will dismantle some of the more stifling laws and regulations that make HR folks crazy and make managing a successful business very difficult.

But, hold on! Not much is likely to happen in the near term. Remember, the new overtime regs take effect Dec. 1 – long before he takes office. And even if his administration takes aim at those new regs, they will have to go through the same process of proposed rule-making and comment period, before any changes take hold. So, unless either the bills before Congress move before the end of the year (unlikely) or the two pending lawsuits are successful in obtaining an injunction (probably also unlikely) before Dec. 1, we need to continue on course with plans and actions to implement the changes.

As for the future, it’s hard to know what he will be able to accomplish. We know some of what his plans are on issues that will affect the practice of HR, although even that information is a bit sketchy just now. In a continuous review of numerous sources and "experts" that began long before Tuesday’s vote, here’s some of what we might expect (and what we might hope):

Affordable Care Act: President-Elect Trump has often stated his intent to "repeal and replace" the ACA. His plan for replacement provisions include modifying existing laws to allow the sale of health insurance across state lines, and the ability to deduct health insurance premium payments from individuals' tax returns. He has also spoken about making Health Savings Account more available. 

Beyond that, it’s just not known what will happen. Businesses would certainly welcome relief from the onerous data collection and reporting requirements imposed on them by the ACA. And like it or not, or agree with or not, the premium increases and other costs that have been either caused by, or contributed to by the ACA are a burden on both businesses and individuals. It remains to be seen what can or will be done with a Trump-Republican controlled Congress world.

E-Verify: Trump has also stated that he is in favor of nationally required use of the E-verify system. Currently only federal contractors are required to use the system. Some state and local governments have required its use for businesses that contract with those entities. I think this is quite likely to occur, despite the continued deficiencies of the system. Maybe we can hope for more work to actually address those deficiencies if we’re going to be required to use it.

Paid Leave: Trump has proposed ensuring six weeks of paid maternity leave to mothers who do not already receive leave from their employer. His plan is to create a nation-wide plan similar to what is in place in California and administered through the Unemployment system. His proposal has already garnered criticism since it would apply only to mothers and would not be transferable to fathers.

Child Care: Currently, businesses with licensed onsite child care centers can receive a tax credit of up to 25 percent of facility expenditures, plus 10 percent of resource and referral costs, up to a limit of $150,000 per calendar year. Trump has called for increasing this cap. I think this is a great option for those businesses willing and able to offer this service to their employees.

"Blacklisting" rule and other Executive Orders: Another oft-repeated vow has been to cancel every "unconstitutional executive action" enacted by President Obama. This would presumably include this rule as well as others that mostly affect government contractors, but create a slippery slope for the rest of us. As we know, the Blacklisting rule has been at least temporarily stopped by an injunction.

NLRB: One of my more fervent hopes (as many of you know!) will be a reining-in of this activist board. Since there will be at least 2 new management-leaning appointments to the board in 2017, we can be fairly certain they will work toward reversing the many anti-business, anti-employer rulings. Maybe employers can go back to being able to control what happens in their businesses and not have to worry that their employee handbook being rule illegal.

EEOC and other regulatory bodies: The current EEOC chair’s term ends in 2017. It is presumed that President Trump would appoint someone more conservative. A hope would be that all the regulatory agencies would return to enforcing the law rather than attempting to make law and influence public policy.

Supreme Court: Again, it would be expected that a replacement for Justice Scalia will be appointed, and that will affect employment law cases brought before the Supreme Court. We can hope that an appointment will not be an "activist’ but will adhere more to the interpreter of the constitution role.

All in all, I really don’t think we know a whole lot more right now than we did before the election. Time will tell. I do know that if Hillary Clinton had won, we’d need to be gearing up for far more workplace law and regulation. In that regard at least, I guess we can be optimistic.

Thursday, November 3, 2016

Are your Wage Surveys Illegal?


Maybe, if you’re not careful….

Ogletree Deakins has a report on the Department of Justice and the Federal Trade Commission releasing "advice" to HR professionals concerning certain practices – one of which is wage surveys.

While most employers know (or should know) that wage fixing is illegal, many may not understand that "no-poaching" agreements will also be considered a violation of anti-trust laws; the other two practices the advice contains.

I think the most impactful piece of the offered advice concerns wage surveys, though. Many companies conduct both formal (through a paid vendor) and informal wage surveys. Oftentimes, these surveys are conducted for particular geographic areas and even specific to a particular industry. They are not done to price-fix, but to determine their competitive stance in terms of wages and benefits. 

Businesses make a decision (either formally or informally) on whether they want their wages to be below market, at market, or above market. This decision is based on many factors including the company’s budget and resources, the nature of their workforce and the nature and number of their competitors. 

However, the DOJ and the FTC list several provisions of a wage survey that would NOT violate anti-trust laws:

  • it is managed by a neutral third party,
  • it involves relatively old information,
  • it includes information that has been aggregated to protect the identity of underlying sources, and
  • it aggregates enough sources such that competitors will be prevented from linking particular data to an individual source.
    Yikes! Following this advice would make many wage surveys virtually useless. "Old" data is relatively worthless – if you’re trying to determine if you’re competitive how does old data help you today? On the other hand, many wage surveys done informally involve small samples that may in fact, allow someone who cared to dig a little to determine what company it came from, and possibly even which employees the wages pertain to. 

    None of this is helpful to many small businesses who have absolutely no intent to fix wages among themselves, but only hope to make their business as successful as possible and as a result to continue to employ people.

    Circling back to the "illegal agreements", how many times have you been aware of businesses having an informal policy of not poaching from their nearby competitors? Or, how many times have you been aware of an exec placing an irate call to an exec at another company complaining they have been poaching employees? Yeah, it happens. Better think twice about that now. To quote the advice:

    "Such agreements are illegal regardless of whether they are formal or informal, oral or written, and entered into directly or through a third party. Moreover, even in the absence of oral or written wage-fixing and no poaching agreements, "evidence of discussions and parallel behavior . . . may lead to an inference" of an agreement."
    Finally, the two agencies appear to be encouraging (requiring?) HR professionals to report such activity to federal antitrust agencies. Will this be yet another instance of HR liability for business practices over which they may have no control?