Video: YouTubeVimeoMP4Instagram.

Extended podcast: Apple Podcasts, Google Play,
Overcast, Soundcloud, Spotify, Stitcher.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers heading into October 2019. The episode includes:

1. DOL Issues Final Overtime Rule

On September 24, the U.S. Department of Labor (“DOL”) issued a final rule increasing the annual salary threshold for white-collar exemptions to $684 per week. This is an increase of about 50 percent over the present levels. Up to 10 percent of that amount can be in the form of commissions, non-discretionary bonuses, or other incentive compensation. For highly compensated employees, the final rule increases the annual earnings threshold to $107,432. The new thresholds will take effect January 1, 2020.

“One of the big issues going into this rulemaking was whether there would be automatic increases of these salary and compensation levels. In the Obama administration’s proposed rule and final rule that ended up not going into effect, there was a provision calling for automatic updates without new rulemaking every three years. The Department considered that type of commitment in its Notice of Proposed Rulemaking that it issued in March of this year, but chose not to have automatic updating in the final rule.” – Paul DeCamp, Member of the Firm, Epstein Becker Green

Click here for more information.

2. California Codifies “ABC Test” for Classifying Workers

The “ABC test” becomes law in California. Last month, California passed legislation codifying the worker classification test established in the state supreme court’s Dynamexcase. The new law goes into effect on January 1, 2020, and will likely impact a number of industries. Under the new law, individuals hired to provide services will be considered employees unless the hiring entity proves that the individuals (A) are free from direction and control, (B) perform work that’s outside the usual course of the hiring entity’s business, and (C) are engaged in an independently established trade, occupation, or business. While versions of the “ABC test” are already used in several states in some circumstances, California has set a new high-water mark, with some other states already signaling that they might follow suit.

Click here for more information.

3. EEOC Reconsiders Pay Data Collection Beyond 2018

The pay data collection story took another turn in September. After much legal wrangling, the Equal Employment Opportunity Commission (“EEOC”) is still collecting the Component 2 pay data from 2018 and 2017, which was required to be submitted by employers by September 30. But for now, the agency has announced that it does not anticipate renewing the pay data collection requirement moving forward, including for 2019 data. The agency underestimated the compliance cost of yearly submissions for employers. The EEOC plans to assess the value of the data employers filed last month before deciding whether to renew the requirement in the future.

“The EEOC took a hard look at the data collection burden estimate that was done in 2016. In 2016, the EEOC decided that they were going to treat every employer the same. So, whether you have a single establishment, which requires one form to be filed, or 150 establishments, where you have 150 forms or more to file, they treated everyone the same way. That is not an accurate representation of what the filing is. Likewise, it’s a much more complex form that’s being required. So for the EEO-1, the standard EEO-1 is 140 data fields. The new component 2 data fields are 3,360 fields. So, it’s a much more complex report to file, and it’s a much more expensive report to file.” – Robert O’Hara, Member of the Firm, Epstein Becker Green

4. NLRB Wraps Up a Busy Summer 2019

It was a summer to remember for the National Labor Relations Board (“NLRB” or “Board”). With a Republican majority firmly in place, the Board took on a number of contested issues over the past few months. Its decisions continued the NLRB’s move away from the pro-union perspective of the Obama-era Board and, in some cases, reversed long-standing precedent.

“The general impact of the Republican-majority Board decisions is really to slant the case law in favor of employers, and the employer’s position. They had three main decisions just this summer that really gave the power to employers to control. One was a UPMC hospital decision. One other major precedent that the Republican majority impacted was the standard applied when looking at unilateral change to bargaining terms. So, historically, there’s always been the standard of ‘clear and unmistakable’ waiver. Now, the Board said, ‘Well, no, hold up; we’ll wait. You know, if there’s a management rights provision that really gave them the ability to do that, then we won’t really look at ‘clear and unmistakable’ waiver. We’ll really focus on whether there is language within the contract that really permitted the employer to do that.’ This fall, we will most likely continue to see limits placed on ability to organize and case law that favors unions.” – RyAnn McKay Hooper, Associate, Epstein Becker Green

Stay tuned for further developments that may affect your business.

We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series features three components: Trending News, Deep Dives, and Monthly Rundowns. Follow us on LinkedIn, Facebook, YouTube, Instagram, and Twitterand subscribe for email notifications.

Also, subscribe to the extended podcast edition on your preferred platform – Apple Podcasts, Google Play, Overcast, Soundcloud, Spotify, Stitcher.

Trouble accessing the show? Please contact thisweek@ebglaw.comand mention whether you were at home or working within a corporate network. We'd also love your suggestions for topics and guests!

EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C.

This Employment Law This Week® episode was also featured in “September’s Top Employment News: Overtime and California’s Classification Law,” on TLNT, a resource for news, analysis and opinion on the business of HR for human resource and talent management leaders and professionals.

WORKFORCE (re)imagined.TM

Employers are strategically preparing for business beyond the pandemic. Stay up to date as you reimagine your workforce.

Trouble viewing the video? Please contact and mention whether you were at home or working within a corporate network. We'd also love your suggestions for topics and guests!

EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C.

Prefer to Listen?

You can listen to Employment Law This Week episodes on your preferred platform, including new episodes of our special series, Employers and the New AdministrationApple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

Spread the Word


Would your colleagues, professional network, or friends benefit from Diagnosing Health Care? Please share the edition each week on LinkedInFacebookYouTubeInstagram, and Twitter, and your connections can subscribe for email notifications.

Back to Series
Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.