Legislative Update September 1st, 2017

Legislative Update September 1st, 2017

  • DOL Overtime Rule:  On 8/31/17, the district court in Texas issued an order granting summary judgment to the State and Business Plaintiffs,holding the overtime rule is invalid.  The Court previously granted the State Plaintiffs’ motion for preliminary injunction in November 2016, invalidating the rule.  So this ruling gives both parties what they wanted:  DOL wanted confirmation that it has the right to set a salary level, which the court confirmed; and the Plaintiffs wanted confirmation that the level was set too high, which the Court also confirmed (and which the DOL agrees).  So the decision actually satisfies both parties.  So where does that leave us?:  (1) the current salary level remains in place;  (2) the final rule has been held invalid; (3) the appeal will likely become moot; (4) neither the Plaintiffs nor the DOL will likely not appeal the order as both largely got what they wanted—DOL, confirmation of its right to set a salary level, and the Plaintiffs, an Order stating the Rule was invalid; (5) the AFL-CIO could appeal the denial of their motion to intervene, but that could take months; and (6) the DOL will likely be issuing a new rule next year with a lower salary level (possibly in the $30K range).


  • EEO-1 Report:  In a much anticipated move, the Office of Management and Budget’s Office of Information Regulatory Affairs (OIRA) has directed the Acting Chair of the EEOC to suspend implementation of the EEOC’s revised EEO-1 report, which included detailed pay reporting obligations.  Prior to this directive issued on 8/29/2017, employers were scheduled to make their first pay disclosures under the revised EEO-1 report by March 31, 2018.  Now, no pay disclosures will be required.  Employers will use the previous version of the EEO-1 form for Fiscal Year 2017 reporting.  You can read more and obtain details about the EEO-1 form here:  Link


  • Weather and Compensation:  In light of the Hurricane in south Texas, it may be a good opportunity to revisit an employer’s pay obligation when an employer must close its doors as a result of natural forces.  This may be a good refresher if you have operations outside of Nebraska and/or as we prepare for potential bad weather over the next couple of seasons.  You can revisit your obligations here:  Link


  • Wage and Hour:  A nice case from the Seventh Circuit was recently issued regarding employer liability for employee use of smart phones.  The Court affirmed a district court order finding, after trial, that the City of Chicago is not liable under the FLSA for the time spent by police officers using their blackberry after normal work hours because the City had no knowledge, either actual or constructive, that the work was being performed and not recorded because the employees did not report the time, despite the employer’s policies permitting them to do so.   And there was no evidence the employer prevented or discouraged them from reporting it.  So this is a good example demonstrating that it is not enough for a plaintiff to provide he or she did “work;” the FLSA also requires the employee to prove the employer had actual or constructive knowledge of the work.  And the inquiry is not whether the employer “could have” discovered the work was performed and not paid, but “should have” discovered it.  Policies requiring employees to report all hours worked, including work performed off site, are helpful in defending these cases, but not determinative, of course.  (Allen v City of Chicago (August 2017)) (Just an FYI, a Blackberry is the device that replaced the flip phone but before the iPhone J)


  • Recently introduced legislation in Congress:
    • S 1652  The Wage Theft Prevention and Wage Recovery Act (introduced 7/27/17)
    • S 1716 The Strong Families Act, Sen. Deb Fischer (R-NE) (introduced 8/2/17)
    • H.R. 3467 The Wage Theft Prevention and Wage Recovery Act (introduced 7/27/17)
    • H.R. 3629 A bill to amend the Fair Labor Standards Act of 1938 to ensure that employees are not misclassified as non-employees, and for other purposes  (introduced 7/28/17)