Acosta Confirmed as Secretary of Labor

Department of LaborOn Thursday, April 27, 2017, Alexander Acosta was confirmed by the United States Senate to serve as the Secretary of Labor in the Trump Administration.  In this role, Acosta will oversee the federal department that develops and interprets labor regulations and investigates alleged violations of minimum wage, overtime, and workplace safety laws.  The Senate approved Acosta by a vote of 60-38, meaning there was some cross-party support, despite the party-line vote on Acosta’s nomination by the Senate Health, Education, Labor and Pensions Committee.  This marks the fourth time Acosta has been confirmed by the Senate, including his prior positions in the Bush Administration.

During the Bush Administration, Acosta served as a member of the National Labor Relations Board for approximately 8 months.  In 2003, President Bush appointed him to the head of the United States Department of Justice’s Civil Rights Division, a position which he maintained for about 2 years.  Thereafter, Acosta served as the United States Attorney for the Southern District of Florida.  Most recently, Acosta filled the role of Dean for Florida International University School of Law, a role from which Acosta has said he would resign if he was confirmed as Secretary of Labor.  Continue reading

Kara Maciel to Speak at HR in Hospitality Conference

main_hosp.jpgThe annual HR in Hospitality Conference, which is a leading conference that has content tailored to meet HR professionals’ needs to stay up to day on the latest legal issues facing the hospitality industry, will be held in Las Vegas on March 27 – 29, 2017.

Kara Maciel, Chair of the Labor & Employment Practice, is pleased to be speaking on a panel with other industry experts to discuss the top “50 Legal Tips in 50 Minutes.”  The panel will occur on March 28, 2017 from 4-5 pm, and will discuss the new Trump Administration, and what legislative and regulatory policies will change, what policies cannot change, what policies may change, and what to expect at the state law level.

All HR professionals in the hospitality industry will benefit from this conference, and as a friend of Conn Maciel Carey, you can register with a $100.00 discount off registration by clicking here.

We hope to see you in Vegas!

Trump Taps Alex Acosta for New Department of Labor Secretary

Department of LaborAs readers of this blog are aware, President Trump originally chose Andrew Puzder, the CEO of CKE Holdings, the parent company of Carl’s Jr. and Hardee’s, as his Secretary of Labor.  However, on February 15, 2017, one day prior to his confirmation hearing, Mr. Puzder withdrew his name from consideration amidst reports that he would not receive the required Senate votes necessary for confirmation based in part on allegations that he failed to pay workers overtime pay, condoned sexual harassment, and opposed legislative efforts to address those problems.  The next day, President Trump officially tapped former U.S. Attorney Alex Acosta for the position.  As Labor Secretary, Acosta will oversee the federal apparatus that investigates violations of minimum wage, overtime and workplace safety laws and regulations.

If confirmed, Acosta would be the first Hispanic member of President Trump’s cabinet.  Mr. Acosta has a strong background in public service.  After graduating from Harvard Law School, he clerked for Judge (now Supreme Court Justice) Samuel Alito on the Third Circuit Court of Appeals.  He has also served as a member of the National Labor Relations Board, head of the U.S. Department of Justice’s Civil Rights Division (both of which he was appointed to by President George W. Bush), and U.S. Attorney for the Southern District of Florida.  Most recently, Acosta served as Dean of the Florida International University School of Law.  Should he be confirmed, Acosta’s public and private experiences (he also practiced law at Kirkland & Ellis) should enable him to take into account numerous perspectives in his new role.

At this stage, Acosta’s views on various pressing issues at the Department of Labor — such as Continue reading

Exploring FLSA Section 7(i) — Can You Use it to Exempt Commissioned Employees from Overtime?

A common question we often get asked by our health and country club clients is whether their trainers, tennis and golf professionals, and other similar employees may be considered commissioned employees of “retail or service establishment,” and thus exempt from overtime pay pursuant tgolf-pro-shopo Section 7(i) of the Fair Labor Standards Act (“FLSA”).  The short answer is “probably yes,” but there are certain criteria that must be met to ensure compliance with the FLSA.

By way of background, the FLSA generally requires an employer to pay overtime to any non-exempt employee who works over 40 hours during a workweek.  However, as readers of this blog are likely already aware, certain “white collar” employees, such as executive, administrative, and professional employees, may be exempt from the FLSA’s overtime provisions.  The FLSA also exempts from overtime certain employees who are paid mostly on commissions rather than a salary basis.  Specifically, Section 7(i) of the FLSA creates an overtime exemption that applies when all three of the following conditions are met:

  1. The employee is employed by a retail or service establishment;
  2. The employee’s regular rate of pay exceeds one and one half times the minimum wage for every hour worked in a workweek in which any overtime hours are worked; and
  3. More than half of the employee’s total earnings in a “representative period” (of not less than one month) consists of commissions on goods or services.

Continue reading

Announcing our 2017 Labor & Employment Webinar Series

5b0ac5ef-4c7d-4ae7-9d4a-2a1cffe3a587During the last few years, employers have become accustomed to increased scrutiny and enforcement from various federal agencies, including the Department of Labor, Department of Justice and the Equal Employment Opportunity Commission. While it is anyone’s guess as to how proactive these agencies will be during the Trump administration, the fact remains that various complex local, state, and federal laws currently are in place designed to protect employees under a wide variety of circumstances. With employers in all industries scrambling to prepare for a changing workplace in the coming months/years, it is as important as ever to be prepared for what’s ahead from an employment law perspective.

Conn Maciel Carey’s 2017 Labor & Employment Webinar Series, hosted by the firm’s Labor & Employment Practice Group, is designed to give you the practical solutions to ensure you are running your business in a way that does not run afoul of the most important labor and employment laws facing our workforce today.

Click here for the full schedule and program descriptions. To register for individual webinars, click on the program titles below.

Register me for the entire
2017 Labor & Employment Webinar series

March 22nd
The DOL’s Major 2016 Regulatory Initiatives and how (and/or whether) those will be implemented in the coming year

April 19th
Key Employment Law Issues for Start-ups and other Small Business, including relevant California laws

May 24th
Recurring Marijuana Issues in the Workplace

June 8th
The Changing Landscape of Anti-Discrimination Laws and Workplace Policies in Light of the NLRB

July 11th
Multi- and Joint-Employers, Contractors and Temps

September 19th
The Impact of Workplace Violence as it relates to Employment Laws and OSHA

October 17th
Addressing Employee Complaints: Whistleblower/Retaliation Claims and OSHA Notices of Alleged Hazards

November 15th
Employment Agreements,
Restrictive Covenants and Trade Secrets

District Court Judge Grants Injunction Putting DOL Overtime Rule on Hold

In late September 2016, twenty-one states led by Texas and Nevada, along with the U.S. Chamber of Commerce and other business groups, challenged the U.S. Department of Labor’s (“DOL”) new overtime exemption rule set to take effect on December 1, 2016, and sought a nationwide injunction preventing the rule from taking effect.  stop-sign-2

The states argued that the DOL unconstitutionally overstepped its authority by establishing a federal minimum salary level that more than doubled the minimum salary threshold required to qualify for the Fair Labor Standards Act’s (“FLSA”) white collar exemption, and that the rule would result in a substantial increase in employer operating costs. [1]  In particular, the states took issue with the policy behind the rule change, arguing that salary level alone does not reflect the type of work an employee performs, and that the DOL’s regulation disregarded the text of the FLSA by imposing a salary threshold without regard to whether an employee actually performs bona fide executive, administrative or professional duties.

On Tuesday November 22, 2016, U.S. District Judge Amos Mazzant of the Eastern District of Texas granted the states’ preliminary injunction, stopping (or at least delaying) the DOL from implementing the rule that would have expanded overtime protections to more than 4 million employees nationwide.

Continue reading

More New Laws for California Employers

By Andrew J. Sommer

Following a flurry of activity in the final days of California’s legislative session, this past month Governor Jerry Brown has signed into law various employment bills addressing everything from state employee pensions to expanding overtime eligibility and regulating employment agreements. This continues the tide of new employee-friendly laws in the Golden State. Below is a summary of the major new state laws impacting private sector employers.

In Monumental Shift, California Bars Employers from Selecting Out-of-State Forums for Resolving Employment Disputes

Historically, employers have had the option of writing into an employment agreement the requirement that disputes arising from that agreement be litigated in an out-of-state court provided that there is some connection to that state forum by, for example, the employer maintaining a corporate headquarters there. However, in enacting Senate Bill (SB) 1241, California has by legislative fiat barred employers from requiring that California employees litigate any resulting disputes out of state.

Specifically, SB 1241 prohibits any contract entered into, modified or extended on or after January 1, 2017 from requiring an employee who primarily resides and works in California to litigate or arbitrate outside of California “a claim arising in California.” Employers are also prohibited from using such contracts to deprive employees of any substantive protection under California law.

A significant concern is that SB 1241 authorizes employees to bring lawsuits to bar enforcement of voidable agreements due to forum selection and choice of law provisions, and in doing so may recover attorney’s fees. Accordingly, it is imperative that employers ensure that, as of the first of the year, any such agreements entered into with employees, including confidentiality, executive and severance agreements, not require litigation or arbitration of disputes outside of the state, or the waiver of California employment law protections. Just as significant, an employer’s attempt to enforce such an unlawful contract may place it in the defensive position of battling a lawsuit by a plaintiff’s attorney whose motivation is the recovery of attorney’s fees.

There is one notable exception, however. SB 1241 exempts from its provisions any contract with an employee who is individually represented by legal counsel in negotiating the terms of the agreement. Consequently, if employers are negotiating a severance or settlement with a current or former employee represented by counsel, it is important that this representation be memorialized in the agreement should the employer consider selecting another state’s forum or laws for any resulting dispute. It should be noted here that this law does not impact existing California law that requires the application of California substantive law to employment disputes where there is an important public policy interest at issue.

Limitation on Criminal Background Inquiries Now Includes Juvenile Court Proceedings

California Labor Code section 432.7 prohibits an employer from asking an applicant for employment to disclose, or from using as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, a referral or participation in any pre-trial or post-trial diversion program, and a conviction that has been judicially dismissed or ordered seal. AB 1843 amends this law to prohibit as well any inquiry into “an arrest, detention, processing, diversion, supervision, adjudication or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.”

Expanded Overtime Eligibility to Certain Classes of Employees

Governor Brown just signed into law several bills that expand overtime eligibility for certain categories of employees. Under existing law, California’s agricultural workers are entitled to overtime wages when they work more than 10 hours in a work day or more than 60 hours in a work week. Assembly Bill (AB) 1066 incrementally lowers the threshold hours for qualifying for overtime wages so that they are consistent with California’s standard overtime rule.

Beginning January 1, 2019, agricultural workers will be eligible for overtime after nine and a half hours worked in a work day, or work in excess of 55 hours in a work week. Beginning January 1, 2020, that overtime threshold will be reduced to nine hours in a workday or 50 hours in a work week. The following year, that number will be reduced to eight and a half hours in a work day or 45 hours in a work week. Eventually, effective January 1, 2022, the overtime basis will be in line with state law, i.e., eight hours in work day or 40 hours in a work week.

To address the concerns of small, independent farms, for businesses with 25 or fewer employees the multi-year phase in is deferred until 2022. The new law also vests with the Governor authority to temporarily suspend the scheduled implementation of the overtime requirements provided that implementation of the scheduled state minimum wage increase is suspended as well.

Similarly, California has expanded overtime protections for teachers employed by private elementary and secondary schools. Existing law exempts from overtime those private school teachers earning at least twice the state minimum wage for full-time employment and meeting other criteria. AB 2230 revises the earning standard for this exemption effective July 1, 2017. On or after that date, the law provides that the overtime exemption applies to private school teachers earning: 1) no less than 100 percent of the lowest salary offered by any school district; or (2) no less than 70 percent of the lowest salary offered by the school district or county in which the private elemental or secondary academic institution is located. In either instance, the comparable position must require a valid California teaching credential and not be pursuant to an emergency permit, intern permit or waiver.

Another new employment law impacts domestic workers. Specifically, SB 1015, removes the sunset provision to the Domestic Worker Bill of Rights, which granted overtime protections to California’s privately hired domestic workers. Thus, this bill has made the law’s provisions permanent.

New Disclosures Required Regarding Protected Leave

AB 2337 requires that California employers provide specific written disclosures to employees upon hire concerning the existing entitlement to leave due to domestic violence, sexual assault or stalking under Labor Code section 220.1. The bill tasks the California Labor Commissioner with developing a form that employers may elect to use to comply with this provision.

Takeaways for Employers

As a result of these developments, we recommend that California employers update their template employment agreements to ensure that the forum selection and choice of law provisions are compliant. It is also important that any existing employment agreements modified or extended on or after January 1, 2017 be similarly updated.

California employer should modify their job applications to make clear that any inquiry into an applicant’s criminal background excludes juvenile court proceedings, among other categories of prohibited inquiry under existing law. In addition, employers are advised in light of AB 2337 to update their employee handbooks to ensure that employees are notified of their right to leave due to domestic violence, sexual assault or stalking, as well as protection from retaliation for exercising those rights.