Employment Law This Week®: Overtime Rule Lawsuits, Voluntary Wellness Program, Statements Protected Under NLRA

Episode 44: Week of October 3, 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) States, Businesses File Lawsuits Against Overtime Rule

Our top story: The U.S. Department of Labor (DOL) is facing a fight over its new overtime rule. Effective December 1, the new overtime rule will raise the minimum salary threshold required for white-collar exemptions under the Fair Labor Standards Act to $913 per week, more than doubling the current threshold. But Texas and Nevada are leading 21 states in a lawsuit challenging the DOL’s updated rule, and more than 50 business groups, including the National Retail Federation and the U.S. Chamber of Commerce, have brought a separate challenge. At the same time, the U.S. House of Representatives voted to delay the effective date of the new regulation by six months. These challenges are based on concerns that the new salary threshold would mean a big increase in costs for employers and oversteps the DOL’s authority. Kristopher Reichardt, from Epstein Becker Green, has more.

“This was obviously a coordinated effort to attack the new overtime regulations on multiple fronts. Both suits take slightly different paths to achieve the same objective. . . . The Eastern District of Texas, a conservative jurisdiction, is somewhat known for moving its docket along quickly, which is important to any challenge, since the new rules take effect in just two months, despite some congressional attempts to delay the rule until June 1 of next year. . . . Employers should absolutely continue to prepare for the overtime rule going into effect on December 1. It’s unlikely that these lawsuits would delay or stop these rules. Employers should expect that they will go into effect.”  For more on this story, click here: http://bit.ly/2dhtwhF

(2) Court Finds That Voluntary Wellness Program Does Not Violate the ADA

An employer’s voluntary wellness program survives an Equal Employment Opportunity Commission (EEOC) challenge. A lighting manufacturer in Wisconsin requires an anonymous health risk assessment in order to participate in its health plan. The EEOC filed suit against the company, claiming that the program violated restrictions in the Americans with Disabilities Act (ADA). The district court found that the program did not violate the ADA.  But perhaps more importantly, the court deferred to the EEOC’s regulation stating that wellness programs are not covered by the ADA’s “safe harbor” and can violate the ADA if the exams are not voluntary.  For more information, click here: http://bit.ly/2cEILDq

(3) Truthful Statements Protected Under NLRA, Even if Disparaging

Technically truthful statements are protected under the National Labor Relations Act (NLRA), even if they’re disparaging. A group of DirecTV technicians were fired after appearing on a local news station discussing a new company pay incentive. The incentive was tied to convincing customers to let DirecTV use landlines to track viewing habits. A split D.C. Circuit affirmed a National Labor Relations Board ruling in favor of the employees, finding that the technicians’ comments were based in truth and thus fell under the protection of the NLRA. Therefore, the company must reinstate the technicians.

(4) Tip of the Week

To celebrate Global Diversity Awareness Month, we’re bringing you a diversity-focused “Tip of the Week” each episode in October. With us this week is William A. Keyes, IV, President of the Institute for Responsible Citizenship, with some advice on growing a diverse culture by demanding excellence.

“One of the things I notice is that the brightest young African-American men are often ignored when it comes to great opportunities. Now, you probably find that surprising, but that’s been my observation. . . . So, my argument is that for a top-tier company that is saying that it’s committed to attracting top talent of color, if you're going to do that, you should really commit to it, state that commitment, and settle for nothing less. Having done that, you really take care of your retention problems, because you bring in people who are really talented. You set a high bar for them, high standards for achievement that you expect for them to meet, they do so. Not only do you retain them, but you create a culture that is attractive to other people who also want to pursue excellence.

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