maxresdefaultAlthough the Republican National Convention is now behind us in Cleveland, we still have several months of campaigning to endure prior to the presidential election. During this time of year, the issue of expressing political beliefs in the workplace is especially poignant.

In the midst of all of this political activity, employers may ask—how much political activity must I allow or tolerate in the workplace? When regulating employees’ political speech and expression in the workplace, there are several laws that private-sector employers need to remember.

U.S. Constitution:  Contrary to popular belief, the First Amendment does not permit free speech everywhere. In fact, it protects only against attempts by the government to limit speech and expression. Although private-sector employers cannot violate the First Amendment by restricting political speech or expression in the workplace, they can run afoul of other laws.

National Labor Relations Act:  Under the NLRA, employees may engage in concerted, protected activity, which includes discussions related to employees’ mutual aid and protection, and terms and conditions of employment. Sometimes, discussions on these topics can spill over into political speech. For example, employers generally must permit employees to wear and display buttons or other insignia that may be political in nature but also include union messages. Also, employers cannot penalize employees for advocating for political issue campaigns (e.g., opposing right to work legislation), as long as the advocacy and any solicitation takes place in non-working areas during non-working time.

Equal Employment Opportunity Laws:  Some workplace political discussions will necessarily touch on sensitive subjects related to certain protected characteristics, such as gender, ethnicity, national origin, race, and religion. If employers permit political speech or expression in the workplace, then they must be careful that these activities do not imply that they condone or sponsor discrimination or harassment.

Given the numerous problems that political speech and expression can cause for employers, the most prudent course of action is to consider establishing reasonable restrictions on employees’ participation in these types of activities within the workplace.

In a future posting, we will address legal issues surrounding political activity in the workplace that is initiated by employers (as compared to employee-initiated activity, which is addressed here).

By now most employers are (hopefully) aware that the U.S. Department of Labor has significantly changed some of the rules governing exemptions from the overtime pay requirements of the Fair Labor Standards Act (“FLSA”). The revised regulations will go into effect on December 1, 2016, and they will principally do the following:

  • Immediately double the minimum salary threshold for the “white collar” exemptions to $913 per week ($47,476 annualized)
  • Adjust the minimum salary threshold for inflation every three years
  • Change the way the minimum salary threshold is calculated so that employers can count certain bonuses and commissions toward as much as 10% of the threshold
  • Set the total annual compensation requirement for the highly-compensated employee exemption to the annual equivalent of the 90th percentile of full-time salaried workers nationally (i.e., $134,004)

Needless to say, these unprecedented changes present significant challenges for employers. Given the potential consequences of noncompliance it is essential that employers act immediately to ensure they have taken all necessary steps to comply with the new regulations prior to December 1st. While each workplace will be different, some general suggestions that employers should consider include the following:

  • Immediately identify exempt positions that fall below the new minimum salary threshold and consider
    • Who will get a pay raise to maintain the exemption
    • Who will be reclassified as non-exempt
  • For reclassified employees, study the employees’ average hours worked for purposes of setting new pay rates
  • Given the likelihood of increased litigation and stepped up DOL enforcement, consider reclassifying other “vulnerable” positions
  • Ensure accurate timekeeping of all hours worked
    • Train reclassified employees, many of whom will be uncomfortable with or resistant to tracking their hours worked
    • Train managers
    • Address “bring your own device” issues (e.g., after-hours e-mails, texts, and phone calls)
  • Review and update policies and procedures
    • Policies related to overtime
    • Policies related to recording hours worked
  • Communicate the changes to your workforce
  • Plan for future inflation-driven adjustments to the minimum salary threshold to the extent possible

The new age of the smartphone has resurrected the Pokémon craze from the 1990s in a completely new version of the once popular handheld Gameboy Nintendo game. With the help of the smartphone’s GPS, Pokémon Go requires individuals to physically enter the real world to chase Pokémon located on the phone’s map. The game randomly places the miniature monsters around the world, and the user must physically track them down.

Positives: This new interactive platform encourages kids to move around in an effort to find the little alien monsters. People are walking miles to track them down. Since its release on July 6, Pokémon Go has quickly grown to become the biggest mobile game in U.S. history, according to SurveyMonkey. Nintendo added over $7 billion to its market value in a single week.

The Not So Good: The Pokémon are everywhere. As a result, individuals are traveling everywhere to catch them, including on to private property, into hospitals, and even in Simba’s den. We used to think texting and driving was dangerous; now you should be aware of individuals hunting and driving. Additionally, please refrain from the hunt while you are on the clock. Employers may now be less concerned about Candy Crush distractions, and more concerned about team hunts in the office.

Employers have to be concerned about the safety of potential hunting visitors and trespassers. For example, individuals have been known to catch critters in electrical substations. Hopefully Pikachu and Electrike (two electric harnessing Pokémon) can be found elsewhere.

In an effort to catch ‘em all, employees on the hunt lose attentiveness to their surroundings, which can lead to injuries. An obvious employer concern is lost productivity. One other issue is that Pokémon Go has access to the phone’s GPS and camera, creating a more than theoretical risk of security breaches.

In a win for organized labor, the National Labor Relations Board (“NLRB”) reinstated a union-friendly standard under which both temporary and permanent employees may collectively bargain as a single unit without employer consent. On July 11, 2016, the NLRB’s 3-1 decision in Miller & Anderson, Inc., 364 NLRB No. 39 (2016), made it easier to combine workers who are temporarily employed by a staffing agency’s client company with workers permanently employed by that client company to form a union.

Under the new standard, if a staffing agency and its client company are deemed to be joint employers of the temporary workers, the temporary workers may join forces with the client company’s permanent workers, provided that they satisfy the “community of interest” factors demonstrating that it is appropriate to treat them as a single unit. Some of the factors used to determine whether a proposed unit of workers share a community of interest are whether the employees are subject to the same working conditions, are subject to common supervision, and have similar wages and benefit packages.

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On July 13, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) released a proposed revised Employer Information Report (EEO-1) (“Proposed Revision”). This slightly changes the original EEOC proposal to add compensation and hours worked data to the EEO-1 Report. An example of the proposed EEO-1 report can be found here. The EEOC has always required employers with more than 100 employees (more than 50 employees for federal contractors) to file EEO-1 Reports yearly identifying employees into 15 categories of race/ethnicity and sex and 10 job categories. Employers will now have to include employee hours worked and employee compensation information by pay band, utilizing the same twelve bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey:

$19,239 and under;
$19,240 – $24,439;
$24,440 – $30,679;
$30,680 – $38,999;
$39,000 – $49,919;
$49,920 – $62,919;
$62,920 – $80,079;
$80,080 – $101,919;
$101,920 – $128,959;
$128,960 – $163,799;
$163,800 – $207,999; and
$208,000 and over.

Compared to the original proposal, the Proposed Revision changes the due date for the “new style” EEO-1 reports from September 30, 2017, to March 31, 2018, to allow employers to utilize calendar year W-2 pay reports. Hours for salaried employees will have to be reported, either by using actual hours worked, if tracked, or by assuming a 40-hour work week.

The Proposed Revision comes after an initial comment period from February 1, 2016, to April 1, 2016. In drafting the Proposed Revision, the EEOC considered oral and written comments from employers, individuals, trade groups, civil rights organizations, and labor unions. The Proposed Revision will only become final after another 30-day comment period. Individuals have until August 15, 2016, to submit written comments to the United States Office of Management and Budget for consideration. Written comments may be submitted to: Joseph B. Nye, Policy Analyst, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC, 20503, e-mail More information can be found in the Federal eRulemaking Portal here.

The Department of Labor (“DOL”) issued its Persuader Activity Advice Exemption Rule (“persuader rule”), which requires attorneys and consultants who communicate with employers regarding certain labor relation activities to file a report disclosing the terms of their arrangement, including payments. Since the persuader rule was issued in final form, multiple lawsuits have been filed by employers, attorney organizations, and states. On June 27, 2016, Judge Sam Cummings of the Northern District of Texas issued a preliminary injunction enjoining, on a national basis, the enforcement of the persuader rule. National Fed’n of Indep. Bus. v. Perez, Case No. 5:16-cv-00066-C (N.D. Tex. June 27, 2016).

The court made this decision based on five specific grounds: (1) the DOL lacks the statutory authority to enforce this version of the persuader rule; (2) the persuader rule is arbitrary, capricious, and an abuse of discretion; (3) the persuader rule violates the due process clause of the fifth amendment; (4) the persuader rule violates the Regulatory Flexibility Act (“RFA”); and (5) the persuader rule creates a substantial threat of irreparable harm. First, the DOL does not have the authority to enforce the terms of this persuader rule and, in fact, the rule conflicts with the plain language of the relevant statute, the Labor-Management Reporting and Disclosure Act of 1959. Second, the persuader rule does not explain the need to change the previous interpretation, it conflicts with state rules governing the practice of law, and it violates the first amendment by infringing on free speech, expression, and association rights. Third, the persuader rule is unconstitutionally vague and does not clearly define its prohibitions; instead it replaces a long-standing and bright-line rule with a rule that is ambiguous and impossible to apply. Fourth, the persuader rule violates the RFA. Although the DOL certified that the persuader rule would not have a significant economic impact on a substantial number of small entities so as to exempt it from the RFA, the DOL failed to provide a factual basis for the cost estimates. Finally, the persuader rule will conflict with attorney duties, reduce access to legal advice, reduce access to training sessions, and burden and chill the first amendment, all of which creates serious harm.

This decision came just in time to avoid the persuader rule from becoming effective, as it was issued just days before the persuader rule was set to go in force on July 1, 2016. In light of this ruling, attorneys and advisors who provide unionization related advice to employers will not be required to report to the DOL, at least for now. This injunction prevents the DOL from enforcing the persuader rule unless the injunction is vacated in some way. If the injunction is vacated, employers and their advisors may eventually have to file reports, but the effective date of that requirement may be altered.

Many employers have turned to employee wellness programs to curtail rising health care costs and improve productivity. These wellness programs typically involve health screenings and/or services to aid in reducing health risks (e.g. tobacco use, blood pressure), often coupled with financial incentives for the employee’s participation.

Over the past few years, the Equal Employment Opportunity Commission (EEOC) has taken aim at wellness programs and brought a number of lawsuits challenging their legality under discrimination laws such as the Americans with Disabilities Act of 1990 (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA), suffering a string of defeats (click here and here) in the process. Last month, the EEOC issued final rules addressing the interaction between wellness programs and the ADA and GINA, and explaining how employers can comply with these laws. The final rules have been met with criticism by many who believe that the rules are inconsistent with the provisions supporting broader use of wellness plans and incentives contained in the Affordable Care Act (ACA). Still, these rules, found here and here become effective in January 2017.

The final rules require, among other things, that employers provide an annual notice to employees, informing them “what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.” Employers with wellness programs must provide this notice to employees by the first day of the plan year beginning on or after January 1, 2017. It is important that employers either incorporate the required notice information into those already used (such as for HIPAA) or provide a separate notice with this information, otherwise their wellness programs will not be deemed voluntary. On June 16, 2016, the EEOC released a sample notice for employers to use in connection with wellness programs.

Earlier this spring, the Department of Labor issued final rules drastically changing more than fifty years of interpretation of the Labor Management Reporting and Disclosure Act of 1959, as amended. These new rules will require detailed disclosure of arrangements that employers have with attorneys and consultants for such things as advice on the content of communications with employees about unions; training of supervisors on how to talk to their employees about unions without violating the law; and even drafting handbooks and personnel manuals that contain statements that might cause employees to think they don’t need unions. The rules became effective officially at the end of April, but the date provided in the rules for enforcement is July 1.

Predictably, these rules have generated legal challenges, alleging that they violate fundamental First Amendment rights to communicate; impair the right to counsel; and exceed the authority of the DOL. In the meantime, the DOL has taken the position that the new rules will not apply to agreements entered into before July 1, or to activities after July 1 that result from agreements entered into before July 1. The following is from a filing by the DOL in one of the many pending cases:

On March 24, 2016, the Department of Labor’s (“the Department”) Office of Labor-Management Standards published a rule entitled “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act,” 81 Fed. Reg. 15924 (“the Rule”). While the effective date of the Rule is April 25, 2016, the rule is only applicable to arrangements and agreements made on or after July 1, 2016, and to payments made pursuant to arrangements and agreements entered into on or after July 1, 2016. 81 Fed Reg. 15924. The Rule revises the reporting requirements, and related record keeping requirements, for certain agreements and arrangements entered into between employers and labor relations consultants or other independent contractors, and payments made pursuant to those agreements and arrangements. The Department will not apply the Rule to arrangements or agreements entered into prior to July 1, 2016, or payments made pursuant to such arrangements or agreements. Consequently, under the Rule no employer, labor relations consultant, or other independent contractor will have to report or keep records on any activities engaged in prior to July 1 that are not presently subject to reporting, or file the new Forms LM-10 or LM-20 (revised pursuant to the Rule) for any purpose prior to July 1.

Accordingly, employers have a Limited Time Window of Opportunity to enter into agreements with their employment law advisors. If they enter into agreements on or before June 30, 2016, they will be spared the cost and trouble of these oppressive filing obligations, even if the services are performed far into the future. Most labor firms, including Frantz Ward, are prepared with drafts ready to turn around on short notice to protect clients in this way. Regardless of how the pending challenges to the new rules turn out, this opportunity to use the DOL’s own interpretation to avoid the worst effects of the rules should not be missed.

The Equal Employment Opportunity Commission (EEOC) is working to check off another initiative from its Strategic Enforcement Plan, having released for public comment an updated draft of its “Enforcement Guidance on National Origin Discrimination.” The enforcement guidance frames out the agency’s policy for addressing national origin claims under Title VII of the Civil Right Act of 1964, 49 U.S.C. §2000e et seq., which prohibits unfair treatment of employees and applicants based upon a number of defined characteristics including national origin.

The applicable law, according to the enforcement guidance, prohibits “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group” and “prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.” The enforcement guidance addresses a wide range of topics including intersectional discrimination, human trafficking, harassment, accent and fluency, national security requirements, and citizenship issues.

National origin discrimination is counted among several other high priority items identified in the EEOC’s Strategic Enforcement Plan, including LGBT and transgender protections, criminal background checks, equal pay and accommodations for religion and pregnancy. The draft guidance is available for review here. The EEOC has allowed a comment period of only 30 days, and that closes on July 1.

Rule Also Has Potential Ramifications for Employers’ Post-Accident Drug-Testing Policies

OSHA recently released its Final Rule on the electronic recording and submission of injury and illness records. The Rule has several important provisions of which employers need to be aware, as well as some potential ramifications to long-standing employer practices.

Here are the basic requirements under the new Rule:

  • Employers with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from their OSHA 300, 300A, and 301 forms to OSHA
  • Employers with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must electronically submit information from their OSHA 300A forms to OSHA
  • All employers required to do so must still otherwise maintain their OSHA 300, 300A, and 301 forms at their respective establishments

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