Virginia Employment Law Journal

Virginia Employment Law Journal

DOL Releases Proposed FLSA Overtime Regulation Amendments

Posted in Fair Labor Standards Act, Overtime

FLSA changes

 

The Department of Labor (DOL) has just released its long-awaited Notice of Proposed Rulemaking to the white collar exemption under the Fair Labor Standards Act (FLSA). The amendments, if passed, will significantly increase the minimum salary test (from $23,660 to $50,440) for hours worked over 40 in a work week. The amendments will have far-reaching impacts on many industries that will need to reclassify many currently exempt employees and corresponding wage and hour policies.

The DOL’s proposed amendments, made public yesterday, include:

  1. Establishing a mechanism for automatically updating the salary levels going forward;
  2. Increasing the standard salary level at the 40th percentile of earnings for full-time salaried workers which currently is equivalent to $47,892 and projected to be $50,440 in 2016;
  3. Increasing salary level for highly compensated employees to the equivalent of the 90th percentile of weekly earnings.

Noticeably missing from the proposed amendments are any proposed changes to the primary duties test. Many expected that the DOL would propose a change to the primary duties test and implement a quantitative primary duty test similar to California’s state law that would require an employee to spend more than 50% of his/her time on tasks deemed exempt. However, DOL indicates in the Notice of Proposed Rulemaking that it believes the proposed salary level increase and automatic updates may address most of the concerns so that a change in the primary duties test will not be necessary. However, DOL is seeking public comment on this issue and may change the proposed amendment to include this.

The proposed amendments were made public as of June 30, 2015. There will be a public comment period of 60 days after the amendments are published in the Federal Register and the DOL may modify them. While the proposed rules will likely not be effective until this fall or possibly early 2016, employers need to start preparing now by reviewing current classifications with a particular emphasis on an employee currently classified as exempt whose salary is less than $50,440.

Upcoming FLSA Changes & Shrinking of the White Collar Exemption: Now is the Time to Reassess Compliance and Update Your Policies

Posted in Fair Labor Standards Act

FLSA changes

In response to a directive from President Obama, the Department of Labor (DOL) has been working since Spring 2014 to revise the white collar exemption under the Fair Labor Standards Act (FLSA). The revisions are expected to significantly increase the minimum salary test and the primary duties test.

What does the FLSA provide for and what is the white collar exemption?

The FLSA is a federal statute that establishes minimum wage, overtime pay, recordkeeping and child labor standards. The statute requires that most employees be paid, at least, the federal minimum wage and overtime pay at one and one-half the regular rate of pay for all hours worked over 40.

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Legal Implications of Take Your Dog to Work Day for Your Business

Posted in Employee Benefits

Take your dog to work day image

Take Your Dog to Work Day (“TYDTWDay”), sponsored by Pet Sitters International, is Friday, June 26, 2015. Every year, more than 10,000 companies participate, to celebrate dogs and encourage adoptions from local shelters.  This event also presents a great opportunity to partner with a local animal rescue, such as Arlington Chamber members Homeward Trails Animal Rescue and theAnimal Welfare League of Arlington.

If your company is considering allowing pets for the day, there are some legal implications to consider.

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New Law Limits Virginia Employers’ Access to Social Media Accounts

Posted in Legislation, Social Media

Social Media Post Title Image

Effective July 1, 2015, employers in Virginia will be prohibited from requesting usernames and passwords for social media accounts of current employees or applicants.  Specifically, Va. Code 40.1-28.7:5 will prohibit employers from:

  1. Requiring a current or prospective employee to disclose the username and password to his social media account;
  2. Requiring a current or prospective employee to add an employee, supervisor, or administrator to his list of contacts;
  3. Using any login information inadvertently obtained to access an employee’s social media account;
  4. Disciplining an employee for exercising his rights under this section;
  5. Refusing to hire an applicant for exercising his rights under this section.

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Virginia May Soon Join Maryland in Prohibiting Employers from Asking for Social Media Passwords

Posted in Legislation, Social Media

Social Media IconsVirginia appears poised to join Maryland and a handful of other states that ban employers from asking current employees and applicants for access to their social media accounts, like Facebook. Earlier this month, the Virginia legislature passed a bill that precludes an employer from requesting or compelling an employee to: 1) divulge passwords or usernames for the employee’s social media accounts; or 2) add the employer to the contacts associated with the employee’s social media accounts. The restrictions also apply to applicants for employment. It is still permissible under the law for an employer to seek access information to an employee’s social media accounts, but only if the information is reasonably needed to investigate allegations of unlawful employee activity or necessary to comply with other laws. Unless vetoed, the law will become effective by the end of March 2015, or sooner.

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All Legally Married Same-Sex Couples Now Covered Under FMLA

Posted in Employee Benefits, HR Policies

Rainbow LGBT pride flag in front of courthouseEffective March 27, 2015, the Family and Medical Leave Act, or FMLA, will extend coverage to all legally married same-sex couples to take FMLA leave to provide care for their spouse. FMLA leave entitles eligible employees, as defined by the statute, to take unpaid leave for a “qualifying event” for a period of up to 12 weeks. In addition to serious health conditions of the employee, qualifying events include the care of a spouse or child with a serious health condition and leave due to a spouse’s covered military service.

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March Madness & Employee Morale: A Winning Combination

Posted in HR Policies

Basketball hoopSelection Sunday has passed, the brackets are set and employers across the US find themselves once again on the eve of March Madness. Businesses are faced with the issue of whether to embrace the “madness” or to strictly enforce office policies, which likely prohibit distractions such as streaming basketball games and participating in bracket pools. While numerous studies indicate that employee productivity is at record lows this Thursday & Friday, there are great benefits to be had if handled correctly.

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Cunningham v. Feinberg: Virginia Employers May be Answerable in Maryland Courts for Unpaid Wages

Posted in Legislation

In a case with potential significance for many Virginia employers, the Court of Appeals of Maryland recently decided in Cunningham v. Feinberg that the Maryland Wage Payment and Collection Law (“MWPCL”) may be applicable to unpaid wage claims arising from employment agreements entered into in Virginia. Thus, a Virginia employer that does not exercise care in the payment of wages under a contract entered into with an employee who will be performing work in Maryland may find itself embroiled in a claim for unpaid wages, statutory treble damages, attorney’s fees and costs of litigation.

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Does the Pregnancy Discrimination Act Require Employers to Provide Light Duty Accommodations to Pregnant Employees?

Posted in Employee Benefits, HR Policies, Pregnancy Discrimination

Thirty-five years ago, the Pregnancy Discrimination Act (“PDA”) established that it is unlawful for employers with fifteen or more employees to discriminate against pregnant workers “because of or on the basis of pregnancy, childbirth or related medical conditions.” That remains the basic law of the land today. What has remained unclear, however, is whether Congress, in passing the PDA, meant to compel employers to provide pregnant employees who are not able to work for medical reasons with accommodations, such as a light duty job, to the same extent as similarly situated, non-pregnant employees.

The Supreme Court recently heard oral argument in a case brought by Peggy Young against United Parcel Service (“UPS”) that is expected to provide some guidance as to whether and under what circumstances an employer may be required to accommodate pregnant employees under the PDA. Irrespective of what the court decides, however, covered employers should continue to ask whether such accommodations may still be necessary under recently implemented amendments to the Americans with Disabilities Act (“ADA”).

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Data Security in a Technological World

Posted in HR Policies

The Uniform Trade Secrets Act, adopted by 47 states including Virginia, Maryland, and the District of Columbia, generally defines protectable trade secrets as information that derives independent economic value from not being generally known or readily ascertainable and that is subject to reasonable efforts to maintain its secrecy.  In an age of electronic information storage and immediate communication, and in a world where flash drives, SnapChat and portable electronic devices are common, the business world’s increasing dependence on technology is challenged by the ease of downloading and absconding with essential business information. The Trade Secrets Acts provides a critical tool for avoiding this risk, but security requires careful and proactive monitoring and planning as well as hard-headed practical judgment.

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