Labor & Employment Blog



Employers adapting to the new regulations under the Fair Labor Standards Act (FLSA), effective December 1, 2016, are increasingly turning to the Salaried, Nonexempt designation in order to save costs by paying half-time instead of time-and-a-half overtime.


We last posted about employees’ right to time off to vote.  It is also important to know what the laws are regarding employees’ political expression as this election becomes ever more contentious as it draws to a close.


With Election Day fast approaching, don’t forget that New York State Law requires employers to provide sufficient time for registered voters to vote. Employees who do not have four consecutive non-working hours between polls opening and closing, and who do not have "sufficient" non-working time to vote, are entitled to up to two hours paid leave to vote. According to New York State Election Law, employees must request the leave between 2 and 10 days before Election Day, and employers can specify whether it be taken at the beginning or end of shift.


Much is often written about employers' duty of reasonable accommodation under the federal Americans with Disabilities Act (ADA), and with good reason as ADA litigation continues to be a significant risk for employers.  Lesser known are the accommodation obligations of employers when faced with religion, transgender and caregiver issues.


All employers should now be aware of the big changes to the DOL’s salary threshold required for an employee to be exempt from overtime take effect in December 2016.  A group of states and business groups has now filed lawsuits challenging the new regulations.  The lawsuits challenge both the general increase itself, claiming the increase was raised too drastically, as well as the new provision for an automatic increase in the salary threshold every three (3) years.


We were recently interviewed by The Daily Record (Rochester, NY) regarding current lawsuits filed against employers in relation to their handling of their retirement plans. The suits revolve primarily around the fees charged by, and the performance of, plan administrators chosen by employers for the retirement plans.  While these theories are not new, the number of cases has increased due to the United States Supreme Court’s Decision in Tibble v.


As all HR professionals are aware, the Department of Labor has made dramatic changes to the FLSA that are due to take effect on December 1, 2016.  A part of these changes are rapid annual increases in the salary threshold required for an employee to be an exempt employee. 

Recently, a bill was introduced in the House of Representatives called H.R. 5813, the Overtime Reform and Enhancement Act.  The bill proposes a salary threshold of $35,984 beginning December 1, 2016, followed by more gradual annual increases. 


In an ironic twist, the United States Department of Labor (USDOL) has agreed to pay $7 million to settle claims that it failed to pay overtime to thousands of its own employees.  The employees filed a grievance in 2006 and the case was in arbitration when it settled.  The decade-old grievance accused the USDOL of failing to compensate misclassified employees overtime for hours worked in excess of 40.  During the pendency of the case, workers who were classified as exempt under the Fair Labor Standards Act (FLSA) were moved back to hourly employees who were eligible for overtime.  


In reversing a prior ruling, the National Labor Relations Board (NLRB) recently determined that regular employees and those employed at the same company through staffing agencies may join together to form a union without employer or staffing agency consent. This decision in the Miller case discards the prior Oakwood case that required consent from the employer and the staffing agency.


Pokémon Go is the latest craze in phone apps, as we all know. People of all ages and backgrounds play this game, and for the devout players, it can affect their jobs. Even a reporter at a State Department briefing was caught playing the game last week during a press conference.  While this game may or may not quickly lose its popularity, it does highlight some problems phone apps like this can cause for employers.