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In an article published by The Corporate Counselor, published by ALM’s Law Journal Newsletters, Tim Garrett discussed the latest developments and next steps surrounding the Department of Labor’s (DOL) overtime rule. The November 22, 2016, injunction of the rule and subsequent appeal by the DOL have created uncertainty for employers, with some having prepared for the rule to go into effect in December 2016 only to have the rule challenged and stalled. President-elect Trump’s appointment of Andrew Puzder as labor secretary, a known advocate of deregulation, has caused speculation that the salary level rule will be changed before implementation. “The ruling does provide the new administration with an opportunity to stop, or modify, the new salary level,” Tim said. “The legal landscape has provided significant opportunity for change through the political landscape.”

The full article, “Injunction of the DOL’s Overtime Rule and its Appeal,” was published in the January 2017 issue of The Corporate Counselor and is available online or the PDF below.

Download Document – The Corporate Counselor (January 2017)

Bass, Berry & Sims attorney Tim Garrett provided insight on the impact that hospitals may encounter as a result of the Department of Labor’s (DOL) new overtime pay rule, set to take effect December 1, 2016. The new rule will more than double the salary level for those employees classified as exempt from overtime pay from the current level of $23,660 to the new level of $47,476, or $913 per week. As Tim points out, “[a] major challenge for hospitals will be cost containment.” The new rule could make it difficult for hospitals to anticipate the new labor costs.

The full article, “New Overtime Rules Could Upend Pay Structures,” was published by Hospitals & Health Networks on October 25, 2016, and is available online.

Bass, Berry & Sims attorney Tim Garrett authored an article for Workforce magazine outlining how the workplace can be considered the unintended battleground for cultural wars. In the article, Tim identifies the causes of this reality and the tension it creates; highlights certain “false” solutions; and provides a more effective, practical solution for working toward a coherent, team-oriented, positive work environment.

Continue Reading Arming for the Workplace Cultural Dynamics

The Ninth Circuit recently held in Morris v. Ernst & Young, LLP that employees have a substantive right to pursue work-related claims collectively, and employers may not force employees to waive this right as a condition of employment.  As a result, class action waivers in arbitration agreements signed as a condition of employment are no longer enforceable in California.

Like many employers throughout the country, Ernst & Young required that all its employees sign arbitration agreements as a condition of employment, and each agreement required that the employees promise not to join with other employees in bringing legal claims against the company.  Specifically, the agreements required that the employees pursue legal claims (1) exclusively through arbitration, and (2) only as individuals and in “separate proceedings.”  As a result, employees could not initiate concerted legal claims against the company in any forum, whether court, arbitration proceedings or elsewhere.

Continue Reading Class Action Waivers in Arbitration Agreements Signed as a Condition of Employment No Longer Enforceable in California

Recent developments show that employers face both incentives and threats from the Obama Administration designed to ensure that employees know of their right to engage in “whistleblowing” (i.e., sharing possible unlawful activity with government agencies). Two recent examples are the federal Defend Trade Secrets Act (DTSA) and recent enforcement actions by the Securities and Exchange Commission (SEC).

Continue Reading Increasing Pressure Toward Employer Transparency

The U.S. Department of Labor (DOL) has updated their mandatory posters, which notify employees of their rights under the Fair Labor Standards Act (FLSA) and Employee Polygraph Protection Act (EPPA), to no longer list the civil monetary penalties that may be assessed for violations of the aforementioned Acts.  Additionally, the FSLA poster has also been updated to list material regarding the rights of nursing mothers under the FLSA, which includes information regarding lactation breaks.  The revised posters should be posted, effective August 1, 2016.  Employers should review their employment law postings and ensure that their postings reflect the information above.  Copies of the revised FLSA and EPPA posters may be downloaded directly from the DOL’s website.

On August 3, 2016, the mayor of San Diego signed a new Implementing Ordinance that will provide for several changes to the city’s new paid sick leave law.  As noted in our previous post, the San Diego City Council had considered changing the law shortly after it was passed because the ordinance seemed to create conflicting obligations with the statewide mandate.  For example, while the California Healthy Workplaces, Healthy Families Act of 2014 permits capping annual sick leave accrual and allows employers to avoid carrying over sick leave from one year to the next (under the practice of providing all required hours at the beginning of each calendar year, i.e., the “upfront method”), the San Diego Ordinance did not.  The new amendments, however, address these issues and provide additional clarity for employers seeking to comply with both laws.

Continue Reading San Diego Amends Recent Paid Sick Leave Law

The Securities and Exchange Commission (SEC) recently fined BlueLinx Holdings and Health Net, Inc. for including within severance agreements a provision designed to eliminate a former employee’s right to recover whistleblower incentives. In what is generally considered a standard provision in severance agreements, the companies’ agreements allowed for the former employees’ participation in any government investigation but required a waiver of the right to recover any incentive payments that the law provides for whistleblowers. The SEC issued substantial fines to these companies for this waiver requirement. The SEC explained that the whistleblower incentive is a key part of the SEC’s enforcement efforts and that any public company’s attempt to eliminate or limit that incentive violates the law.

Continue Reading SEC Fines Public Companies for Attempting to Limit Whistleblower Incentives in Severance Agreements

Bass, Berry & Sims attorney Tim Garrett provided insight on the Department of Labor’s (DOL) overtime pay policy, slated to take effect on December 1, 2016 (for additional background on the DOL policy, read the firm’s blog post, “DOL Announces New Salary Level in Overtime Regulations“). As Tim points out for the article, “‘I’m not saying overtime pay shouldn’t be increased, but this should be done in more responsible manner… The regulations currently don’t recognize some unintended consequences.'” According to Tim, these consequences may include the following:

Continue Reading 3 Overtime Pay Policy Repercussions