The Department of Labor Proposes Changes to Overtime Eligibility, Potentially Impacting Millions of Workers

By Kimberly Richardson

On August 30, 2023, the U.S. Department of Labor (“DOL”) published a notice of proposed rulemaking (NRPM), announcing its plans to significantly expand the number of executive, administrative, and professional employees eligible for overtime pay under the Fair Labor Standards Act (“FLSA”).

In its proposal, the DOL estimates that, in year 1, roughly 3.6 million workers, exempt from overtime pay under the current regulations, would become newly entitled to overtime protection absent some intervening action by their employers. The change would have the biggest impact on retail, food, hospitality, manufacturing, and other industries where many “white collar” salaried workers would lose exempt status. The DOL also estimates that the updated regulations would impose $1.2 billion of direct costs on employers.

Overview of the Executive, Administrative, and Professional Employees Overtime Exemption

Unless specifically exempted under the FLSA, U.S. hourly workers are entitled to be paid no less than time-and-half their regular hourly rates for all hours worked in excess of 40 hours a week.  The additional income is called “overtime pay.”

Executive, administrative, and professional workers are exempt from that overtime pay requirement provided they satisfy all three of the following tests: Continue reading

[Webinar] Managing Employee Privacy Rights: Everything You Need to Know

On Wednesday, September 20, 2023 at 1 p.m. EST, join Kara Maciel and Darius Rohani-Shukla for a webinar regarding Managing Employee Privacy Rights: Everything You Need to Know.

In the modern workplace, employers must proactively understand and comply with privacy laws that will affect their employees. Failing to do so could result in potentially costly civil litigation, government enforcement actions, and employee trust/ goodwill losses. At present, employee privacy rights are governed by a tricky combination of state and federal laws as well as commonly followed data protection best practices.

Participants in this webinar will learn: Continue reading

NLRB Returns to its Prior “Ambush” Election Rules

By Kara Maciel and Samuel Rose

The National Labor Relations Board (“NLRB”) has issued its 2023 Rule related to union representation elections. Representation petitions can be filed by employees, unions, or employers and ask the NLRB to conduct an election to determine whether employees wish to be represented by a union in collective bargaining.

The 2023 Rule reverses many of the provisions in the NLRB’s 2019 Rule which extended the timeline that the parties had to conduct an election.  The 2019 Rule gave rise to extensive litigation resulting in the U.S. Court of Appeals for D.C. striking down significant portions of the rule. The NLRB had already rescinded the struck down provisions of the 2019 Rule, but the 2023 Rule makes additional changes, essentially returning the election process to the 2014 Rule. The NLRB says that the 2023 Rule “will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation.”

The 2023 Rule includes numerous differences from the 2019 Rule, including: Continue reading

Join CMC’s Employer Coalition to Work on OSHA’s Inspection Walkaround Rulemaking (Expanding Union Access to Non-Union Workplaces)

By Eric J. Conn and Mark Trapp

We wanted to reach out to notify you about OSHA’s latest gift to organized labor.  Consistent with the Biden Administration’s promise to be “the most labor-friendly administration in history,” last week, OSHA revealed its Notice of Proposed Rulemaking about the “Worker Walkaround Representative Designation Process.”  Specifically, OSHA proposes to amend 29 CFR 1903.8(c), which is the regulation governing the rights of third parties to participate as employee representatives in OSHA inspections. The NPRM for OSHA’s Inspection Walkaround Rule would greatly expand when non-employees can accompany OSHA inspectors during physical inspections at your workplaces.  Specifically, the proposed rule would open the door to third parties, including specifically union representatives even at non-union workplaces, if the OSHA compliance officer determines the third party would positively impact the inspection.

History of Union Access to Workplaces During OSHA Inspections

As a reminder, The Obama/Biden Administration tried to contort the meaning of the Inspection Walkaround regulation by granting union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013.  The interpretation letter responded to this inquiry by a labor union: “May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

OSHA has an existing regulation at 29 C.F.R. § 1903.8(c) that speaks to this issue, and it sets a strong bias against third party participation in OSHA inspections, unless the third party has some special skill (such as industrial hygienist or a language translator) that OSHA is lacking.  Here is the existing regulatory text: Continue reading

Fifth Circuit Articulates New Employee-Friendly Test for Title VII Claims

Title VII plaintiffs in the Fifth Circuit are no longer required plead disparate treatment in an ultimate employment decision.

In Hamilton v. Dallas County, the en banc court overturned decades of precedent and articulated a new employee-friendly rule for Title VII disparate treatment claims—“a plaintiff plausibly alleges a disparate treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the ‘terms, conditions, or privileges’ of her employment.”

The Standard Articulated by the Hamilton Court

  • “To adequately plead an adverse employment action, plaintiffs need not allege discrimination with respect to an ‘ultimate employment decision.’ Instead, a plaintiff need only show that she was discriminated against, because of a protected characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions, or privileges of employment’—just as the statute says.”
  • “The days and hours that one works are quintessential ‘terms and conditions’ of one’s employment”
  • “We thus leave for another day the precise level of minimum workplace harm a plaintiff must allege on top of showing discrimination in one’s ‘terms, conditions, or privileges of employment.’”


The Dallas County Sheriff’s Department (“Department”) gives its detention officers two days off each week. Prior to 2019, detention officers’ days off were determined by seniority. In 2019, the Department eliminated the seniority system and days off were determined by sex—only men were allowed to take off Saturday and Sunday. Women could not elect to have both of their days off on the weekend.

Nine female detention officers sued the Department, alleging that the sex-based scheduling policy violated Title VII’s prohibition against sex discrimination. The trial court granted the County’s motion to dismiss, reasoning that the scheduling policy was not an “ultimate employment decision.” Under Fifth Circuit precedent, alleged conduct violated Title VII if it was an “ultimate employment decision” such as hiring, granting leave, discharging, promoting, and compensating. The Fifth Circuit panel affirmed the trial court’s dismissal, noting that this case was the “ideal vehicle” for an en banc court to align the Circuit’s precedent with the meaning of Title VII’s text. The Fifth Circuit panel explained that “[s]urely allowing men to have full weekends off, but not women, on the basis of sex rather than a neutral factor like merit or seniority, constitutes discrimination with respect to the terms or conditions of those women’s employment.”

En Banc Decision Continue reading

California Supreme Court Concludes Third Party Agents May Be Directly Liable for Discrimination under FEHA

By Megan Shaked

This week the California Supreme Court in Raines v. U.S. Healthworks Medical Group decided that an employer’s business entity agents can be held directly liable under the California Fair Employment and Housing Act (FEHA) for employment discrimination in “appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer.”

The Underlying Class Action For Unlawful Medical Inquiries

The FEHA prohibits employers from making any medical or psychological inquiry of an applicant, except under certain circumstances. The plaintiffs in the underlying class action alleged Continue reading

Cal/OSHA and California Employment Law Summit: The Latest Rulemaking, Legislative, and Enforcement Priorities

You are cordially invited to attend the Cal/OSHA and California Employment Law Summit presented by Conn Maciel Carey LLP.

Conn Maciel Carey LLP’s Inaugural Cal/OSHA and California Employment Law Summit is an in-person program presented by the California-based attorneys in CMC’s national OSHA • Workplace Safety and Labor • Employment Practice Groups, to update California employers on important developments involving workplace safety and health issues in California.​

Learn How to Navigate California Requirements

Continue reading

In withdrawal liability, a non-employer may always employ its defense that it was never an “employer”

When a multiemployer pension fund determines that an employer owes withdrawal liability, the fund must send the employer a notice and demand for payment. 29 U.S.C. § 1399(b)(1). To challenge the fund’s withdrawal-liability assessment, the employer must timely request a review by the fund, 29 U.S.C. § 1399(b)(2)(A), and if the employer disagrees with the results of the review, it must timely initiate arbitration.

An employer that fails to initiate arbitration waives any defenses to the assessed withdrawal liability and the amount demanded becomes due and owing. The Multiemployer Pension Plan Amendments Act (“MPPAA” or “the Act”) states:

If no arbitration proceeding has been initiated pursuant to subsection (a), the amounts demanded by the plan sponsor … shall be due and owing on the schedule set forth by the plan sponsor. The plan sponsor may bring an action in a State or Federal court of competent jurisdiction for collection. 29 U.S.C. § 1401(b)(1).

Thus, the failure to initiate arbitration has a simple result – the amount demanded by the plan sponsor becomes due and owing. Numerous court decisions have noted this harsh consequence of the failure to initiate arbitration, stating “In short, arbitration reigns supreme under the MPPAA.” Robbins v. Admiral Merchants Motor Freight, Inc., 846 F.2d 1054, 1057 (7th Cir. 1988).

But what if the entity claims not to have been an “employer” at all? Does the failure to initiate arbitration preclude such an entity from contesting the withdrawal liability assessment? The short answer is “no” – whether a company is an “employer” within the meaning of the MPPAA is a threshold question for the court. And since only an “employer” is required to arbitrate, a district court may address this threshold question before arbitration.

This exception was at issue in Central States, Southeast and Southwest Areas Pension Fund v. Event Productions, Inc., No. 21-cv-5695 (N.D. Ill. June 1, 2023). In that case, Continue reading

NLRB Puts the Microscope on Employee Handbooks

By: Samuel Rose

Recently, the National Labor Relations Board (NLRB) issued its decision in Stericycle Inc., which changes the analysis for evaluating work rules challenged under Section 8(a)(1) of the National Labor Relations Act (NLRA).

In order to fully understand the impact of this decision, we must go back to some prior decisions by the NLRB in order to analyze how the law in this area has evolved.

In 2004, the NLRB issued its decision in Lutheran Heritage Village-Livonia, which held that “employers violated the NLRA by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities if the rules would be ‘reasonably construed’ by an employee to prohibit the exercise of NLRA rights.” Continue reading

New California Bill Would Create Website Accessibility Obligations for Businesses Nationwide

By Jordan B. Schwartz

As our blog readers are aware, website accessibility claims have been on the rise for the past decade, with no end in sight.  To make matters worse, there is a new bill making its way through the California assembly that will exacerbate these types of claims.  And, although the bill is state-specific, it would have consequences throughout the country. Indeed, if passed, this bill would immediately create liability for businesses everywhere, so long as those businesses’ websites have California-based visitors.  In other words, virtually every business with a representative reading this blog would be affected.

By way of background, the U.S. Department of Justice has emphasized that businesses should make websites accessible to the disabled and has emphasized that businesses should do so by relying on a set of accessibility guidelines called the Web Content Accessibility Guidelines (“WCAG”). Last year, the DOJ issued what it termed “helpful guidance” on website accessibility, stating that businesses have “flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication.”

In contrast, this proposed new CA law takes a much stricter and more rigid approach.  Specifically, Continue reading