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Fifth Circuit: Clarity on Highly Compensated Employee Exception to FLSA Overtime Requirements

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August 21, 2019

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In Faludi v. U.S. Shale Solutions, the Fifth Circuit Court of Appeal confirmed that an employee’s guaranteed day rate satisfied the Fair Labor Standard Act’s (FLSA) highly compensated employee (HCE) exemption, even though the employee was only paid twice monthly.  The HCE threshold—which currently requires the employee to be paid more than $100,000 per year and at least $455 a week on a salary or fee basis—only requires that the employee “regularly receive[s]” the predetermined amount on a weekly or less frequent basis.  There is no requirement that the cash amount be calculated on weekly or less basis.

In addition, the Fifth Circuit also stated that the amount the HCE is paid is not required to bear a “reasonable relationship” to the amount actually earned. Employers should take care when setting highly compensated exempt employee pay to ensure compliance with FLSA requirements.

Action Items

  1. Have highly compensated exempt employee pay reviewed for consistency with this ruling.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

Fifth Circuit: Day Rate Can Meet Salary Requirements Under FLSA White Collar Overtime Exemption

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August 21, 2019

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In Faludi v. U.S. Shale Solutions, L.L.C., the U.S. Court of Appeal for the 5th Circuit stated that a guaranteed day rate providing compensation over $455 can meet the Fair Labor Standard Act (FLSA) salary requirements for the white collar overtime exemption. Further, the FLSA’s reasonable relationship test does not apply to the highly compensated exemption.

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September Updates

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This Short List addresses the following topics:
  1. REMINDER! EEO-1 Component 2 Reporting is Due September 30th
  2. DOL Says DOT Drivers Sleeping in Berths While Off-Duty is Unpaid Time
  3. 2nd Circuit: Collectively Bargained Arbitration is Governed by the Scope of the Agreement
  4. 9th Circuit: The Dynamex Independent Contractor Test Does Not Apply Retroactively – For Now
  5. New Noncompete Restrictions in Maine, New Hampshire, and Rhode Island
  6. Arizona: Mini-COBRA and Bona Fide Associations Updates
  7. California: Hairstyles Soon to Be Protected From Discrimination
  8. Emeryville, CA: Small Independent Restaurant Minimum Wage Hold Repealed
  9. Florida: Unemployment Compensation Protections for Domestic Violence Victims
  10. Indiana: Direct Sellers are Exempt from Minimum Wage Rules
  11. Iowa: Enacts Negligent Hiring Protections for Employers
  12. Louisiana: Electronic Notice to Employees Permitted for Group Health Insurance Plans
  13. Kansas City, MO: Enacts Salary History Inquiry Ban
  14. New Hampshire: Child Labor Hours Restricted
  15. New York: Paid Family Leave Benefit Schedule Update
  16. New York: Whistleblower’s Immigration Status is Protected
  17. Ohio: Motor Carrier Drivers Excluded from Definition of “Employee”
  18. Pittsburgh, PA: Paid Sick Leave is Revived by State Supreme Court
  19. Vermont: Expunged Records Make Criminal Convictions Vanish
  20. Virginia: Updates to Minimum Wage Exemptions and Nondisclosure Agreements
  21. West Virginia: Effect of Expunged Criminal Convictions

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5th Circuit: Title VII Does Not Protect Sexual Orientation, Which Includes Heterosexual Orientation

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April 19, 2019

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In O’Daniel v. Industrial Service Solutions, the 5th Circuit Court of Appeal reaffirmed its position that sexual orientation is not a protected class under Title VII of the Civil Rights Act, including heterosexual orientation. Specifically, “’[s]ex’ discrimination has been held to encompass discrimination based on sexual harassment or sexual stereotyping,” but does not include sexual orientation.

There, an HR manager posted to her personal Facebook account a picture of a man in a dress shopping at Target and objecting to his ability to use female facilities with the employee’s daughters. When her supervisors, one of whom is a member of the LGBTQ community, became aware of the post, they attempted to terminate her employment, but ultimately disciplined her. Subsequently, the employee claimed, in part, she was subject to discrimination and retaliation by her supervisor following the Facebook post, because she was heterosexual and she opposed discrimination on the basis of her heterosexual orientation.

The court stated that because sexual orientation is not protected under Title VII, opposing her alleged discriminatory treatment as a heterosexual was not a protected activity.

Action Items

  1. Have discrimination policies reviewed for consistency with this ruling.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

Fifth Circuit: Clarification on Small Vehicle Exception to the Motor Carrier Act Overtime Exemption

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May 16, 2018

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In Carley v. Crest Pumping Technologies, LLC, the Fifth Circuit recently clarified ambiguities in the small vehicle exception to the Motor Carrier Act (MCA) overtime exemption. Generally, the overtime requirements under the Fair Labor Standards Act (FLSA) do not apply to employees covered by the MCA, except for employees who operate vehicles weighing 10,000 lbs. or less under certain conditions (“small vehicle exception”).

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Louisiana: Pregnancy Disability Has Different Meanings Under the State’s Employment Discrimination Laws

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March 15, 2018

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In Brown v. The Blood Center, the Louisiana Court of Appeal recently stated that the standard for pregnancy disability under the state’s Pregnancy Discrimination Act (PDA) does not apply to the definition of disability under the Employment Discrimination Law (EDL), because of limiting language in the PDA. The EDL states that a disability includes a physical impairment that limits one or more major life activities, while the PDA states that pregnancy or related conditions are treated as any other temporary disability.

There, a pregnant employee became ill and abandoned her post without first notifying her supervisor. Two hours later, she called her supervisor to tell him what happened.  The employer had a policy of termination for post abandonment and terminated the employee.  She claimed that she was discriminated against for a pregnancy disability, but only claimed she was having a difficult pregnancy. Because the pregnancy disability definition did not apply to the EDL, the court stated, in part, the employee did not demonstrate that she suffered from an applicable disability.

Action Items

  1. Review policies and procedures related to attendance and notification, as well as disability claims, for changes consistent with this ruling.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase