Employment Law This Week®: FLSA Overtime Rules, NYS Overtime Laws, National Origin Discrimination, Foreign Workers

Episode 51: Week of December 5, 2016

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) District Court Enjoins FLSA Overtime Rules

Our top story: A federal court in Texas has temporarily enjoined new exemption rules issued by the U.S. Department of Labor (DOL). The rules, which would have dramatically increased salary thresholds for overtime exemptions, were set to go into effect on December 1. The district court judge found that the 21 states that brought the suit established a prima facie case that the DOL overstepped its authority in establishing the new rules. Because the Fair Labor Standards Act makes no reference to salary thresholds, the court found that any new thresholds might have to be created by Congress and not the DOL.  If the injunction is made permanent, it could be the beginning of a lengthy appeals process, which would leave employers in limbo. Jeffrey Ruzal, from Epstein Becker Green, comments:

"The DOL specifically stated publicly that it will take an appeal, or at least seek a stay of the injunction. The DOL would have 60 days from the date of the decision, or until January 3rd, in order to file that appeal, and then there would likely be at least two months of time from oral argument to the actual decision. So there really is not going to be a decision in the short term. … Employers should carefully consider any additional changes they make. There are significant employer relations concerns in scaling back any changes they’ve already communicated to their employees. … It will certainly hurt morale, and it may even lead to questions from the employees as to whether they were misclassified incorrectly in the first place or whether they have some legal entitlement to that additional promised money."  For more information, click here: http://bit.ly/2gErAQW

(2) New York State Overtime Laws Likely to Proceed

While overtime expansion is stalled at the federal level, New York State’s plan to increase salary thresholds remains on track. The comment period for the proposed increase closed on December 3. Under the rule, thresholds for exempt employees would rise to $825.00 per week for large employers in New York City and $787.50 per week for employers in Nassau, Suffolk, and Westchester Counties. If the New York State Department of Labor proceeds with the new rule, it will go into effect on December 31 of this year.  Read a recent blog post on this topic: http://bit.ly/2gdhmqa

(3) EEOC Issues Updated Guidelines on National Origin Discrimination

The Equal Employment Opportunity Commission (EEOC) released updated guidance on national origin discrimination. The new guidelines address legal developments on issues like human trafficking and harassment in the workplace. The guidance includes over 30 examples of national origin discrimination, as well as best practices to reduce the risk of violation. The guidance also states that, if an employee’s accent “materially interferes” with his or her ability to communicate in spoken English and effective spoken communication in English is a job requirement, an employer can legally move that worker.  Click here for more: http://bit.ly/2h01yLj

(4) USCIS Increases Stability for Foreign Workers

The U.S. Citizenship and Immigration Services (USCIS) has issued a final rule that makes it easier for employers to sponsor and retain skilled foreign workers. The rule gives added job flexibility and protection to foreign workers in H-1B status or who are stuck in a long green card application process. USCIS’s rule also expands the eligibility of certain employers for H-1B cap exemptions and adds grace periods, so certain skilled workers can remain in the country for limited periods while in between jobs.  Click here for more information: http://bit.ly/2gLwiiN

(5) Tip of the Week

Last week, as part of the 21st Century Cures Act, the U.S. House of Representatives passed new mental health reform legislation intended to step up enforcement of rules requiring that insurers cover mental health care at the same level as they cover physical health care.  The legislation could impact employers’ health insurance plans. For this week’s Tip of the Week, James Gelfand, Senior Vice President of Health Policy for The ERISA Industry Committee (ERIC), has some advice on how employers should update their plans in 2017 in order to remain compliant:

"Put in place a robust process to respond quickly and authoritatively to questions about nonquantitative treatment limitations. Be aware that the regulatory agencies will be charged with significantly stepping up enforcement and auditing, issuing an expansive new compliance guide, and putting in writing examples that should help ensure your plan design is in compliance. And clarify the process for eligible individuals to obtain plan documents, parity and claims information, and answers to coverage and payment questions, both internally and externally. ... A provision of this law will clarify that eating disorders, if covered at all, are included in your plan's mental health parity requirements. This clarification will become effective immediately upon enactment of the bill. Employers should take steps to update their insurance plans in time."  Click here for more: http://bit.ly/2gZSjL5

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