Tag Archives: employment law

EMPLOYMENT LAW UPDATE – Significant Changes to Overtime Regulations!

 

For loyal followers of these updates, this Department of Labor “update” may seem like déjà vu.  Indeed, three years ago I sent out an update notifying you that the Department of Labor (DOL) had released final changes to the overtime regulations under the Fair Labor Standards Act (FLSA) and that the changes were scheduled to go into effect on December 1, 2016.  Well, as it turned out, the new regulations never did go into effect, but the DOL recently decided to revisit the issue.

So what’s new?

In a nutshell, the proposed rule (which is expected to go into effect in January 2020) would require that all employees earning less than $35,308 per year (or $679/week) – regardless of their job duties – be paid overtime for working 40 hours in a work week.  Overtime is typically equal to one and one-half times the employee’s regular rate of pay.  This means that employees who are now exempt from receiving overtime will no longer remain exempt if they earn less than $35,308 per year.

Without sounding like the boy who cried wolf, now is the time for covered employers to start preparing.

What does this mean?

For exempt employees earning at least $679/week, nothing will change.  However, employees who are now classified as exempt but who are earning less than $679/week will lose their exempt status if and when the new rule goes into effect.

Becoming non-exempt means that these employees will be eligible for overtime pay when working over 40 hours in a work week, and it also means that these employees will be required to record their hours worked.  For exempt employees who never “punched a clock,” this may be demoralizing, although some may welcome the opportunity to earn overtime.

What should you do?

Step 1: EVALUATION

  • Determine which employees will be impacted by these new rules if anyone.
  • Assess the cost of reclassifying these employees as non-exempt or increasing their salaries in accordance with the new guidelines to keep these employees exempt.
  • For employees who will be reclassified as non-exempt, no additional costs will result:
    • if the newly non-exempt employees do not work overtime.  Remember that even if you have a policy that requires all overtime hours be approved in advance, non-exempt employees who work over 40 hours a week must be paid at the time and one-half rate.
    • if the hourly rate paid to the newly non-exempt employees is reduced to take into account the need for these employees to work some overtime hours each week.
  • Remember to train all newly-exempt employees on your time-keeping procedures.

Employers impacted by these new rules may need to consider covering increased overtime costs by reducing benefits, but this will certainly result in a drop in employee morale.

Step 2: COMMUNICATION

  • Notify impacted employees that changes are the result of new rules imposed by the DOL rather than a company decision
  • Assure reclassified employees that the changes do reflect the employer’s opinion of their work or the employees’ value to the company

As always, you should contact legal counsel for any specific questions you may have about the applicability of the FLSA to your business, these new rules and how to best implement same.

 

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

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eml@assoulineberlowe.com

www.assoulineberlowe.com

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Labor and Employment Law Annual Update

Department of Labor

Partner Ellen Leibovitch, Florida Board Certified in Labor and Employment Law, will be speaking at the 17th Labor and Employment Law Annual Update and Certification Review. The annual course, presented by the The Florida Bar Continuing Legal Education Committee and the Labor and Employment Law Section, is an advanced level course covering a wide array of labor an employment topic.  Ellen will be speaking on the Fair Labor Standards Act (FLSA) on January 26, 2017.  Given the recent law changes and case law surrounding the changes, this will be an informative panel about the FLSA.  Details about the event are below.

January 26 – 27, 2017
Gaylord Palms Resort & Convention Center
6000 W. Osceola Parkway
Kissimmee, FL 34746
(407) 586-0000

For those interested in attending, you can register for the event at the Florida Bar website.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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Employment Law Update: Time to Review Employee Handbooks

Ellen LeibovitchOn March 18, 2015, the General Counsel for National Labor Relations Board released a report summarizing recent cases where policies in employee handbooks were found to violate Section 7 of the National Labor Relations Act (NLRA).

Section 7 gives employees the right to form unions and engage in other protected types of concerted activity.  Specifically, among other things, Section 7 allows employees to engage in the following activities:

  • The right to discuss wages, hours and other terms and conditions of employment with other employees and non-employees, including union representatives
  • The right to criticize or protest employer’s labor policies or treatment of employees
  • The right to argue and debate with other employees about unions, management and terms and conditions of employment
  • The right to communicate with the news media, government agencies and other third parties about wages, benefits and other terms and conditions of employment
  • The right to use the employer’s name and logo on picket signs, leaflets and other protest material
  • The right to photograph and make recordings in furtherance of protected concerted activities, including the right to use personal devices to take such pictures and recordings
  • The right to go on strike
  • The right to engage in concerted activity to improve the terms and conditions of employment, even if that activity is in conflict with the employer’s interests

In recent cases, the General Counsel determined that policies in employee handbooks were unlawful if employees would not reasonably understand the policy to prohibit a Section 7 protected activity.  In other words, if the policy is seen as restricting an employee’s Section 7 rights, it would be deemed unlawful under the NLRA.  The General Counsel’s report was intended to summarize these holdings and clarify the government’s position.

For example, a policy which requires the employee to keep the employer’s business information confidential and not to disclose such information about the business, customers, vendors and the like is lawful; but a policy which prohibits discussing wages, hours, workplace complaints and may be unlawful.  Similarly, a policy which requires employees to be “respectful of the company” may be construed to ban protected criticism or protests regarding supervisors, management or the company in general.  However, policies prohibiting serious misconduct, such a insubordination, threats and assault, would still be lawful.  General Counsel also determined that a policy prohibiting employees from speaking to the media about company matters unless authorized by the company to do so or requiring all media inquiries be directed to a designated company official was unlawful because employees reasonably would read such policy to ban protected (Section 7) communications with the media.

These are only a few of the many examples of the kinds of policies which the General Counsel found problematic.  Still, the line between what is lawful and what may be deemed unlawful is blurry at best and has, by this report, been made less clear.  Smart employers would benefit from having skilled employment counsel review their employee handbooks to ensure compliance under the NLRB’s newly-issued guidelines.

For a thorough review of your employer/employee handbooks and their compliance with the NLRB guidelines, please contact Ellen M. Leibovitch below.

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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