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

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All Employers with LA, MS, and TX Employees

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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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All Employers with LA, MS, and TX Employees

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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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Fifth Circuit: Criminal Background Guidance by EEOC Struck Down

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State of Texas

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August 6, 2019

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In 2012, the Equal Employment Opportunity Commission (EEOC) issued a guidance document directed at employers, cautioning them that blanket hiring bans on job applicants with criminal convictions could lead to disparate impact Title VII liability. The rationale was that blanket bans could disproportionately impact ethnic and racial minorities. Employers using this kind of policy could invite further investigation by the EEOC and possible charges of discrimination. The guidance also instructed that an employer could potentially avoid liability by showing that the policy of not hiring applicants with criminal convictions was related to the job being filled, and consistent with the needs of the business.

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October Updates

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This Short List addresses the following topics:
  1. OFCCP Releases new FAQs on Independent Contractors, Compliance Evaluations, and AAP
  2. Ninth Circuit: ERISA Claims May be Arbitrated
  3. California: PAGA-only Claims May Not Seek Unpaid Wages
  4. Petaluma, CA: Minimum Wage Increases on January 1, 2020
  5. Colorado: Courts Are Not Required to Blue Pencil Noncompetition and Nonsolicitation Agreements
  6. Massachusetts: Counting 1099-MISC Workers for Paid Family Medical Leave
  7. New Jersey: Hairstyles are Protected under the Law Against Discrimination
  8. Bernalillo County, NM: Enacts Wellness Act
  9. New York: Hairstyles are Protected under the State Human Rights Law
  10. Toledo, Ohio: Salary History Inquiries Banned
  11. South Carolina: State Supreme Court Abolishes Common Law Marriage
  12. Dallas and San Antonio, TX: Paid Sick Leave Update

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Texas: Recent Employment Updates

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All Employers with TX Employees

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As Indicated

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Texas enacted several new laws before the close of this year’s legislative session; key provisions are summarized below.

Discrimination Update. As of September 1, 2019, age-based discrimination protections now apply to people 40 years old and over, which was expanded from the previous range of 40 to 56 years olds.

Electronic Payroll Cards. As of September 1, 2019, employers may use electronic payroll cards to pay employees, provided they give employees written notice of the plan and any fees associated with it at least 60 days before the first electronic funds are paid. Employees must be allowed to opt out of the program, and employers must pay wages using the selected alternative payment method as soon as practicable but no later than 30 days after the employee submits the request.

Jury Service Protections. As of September 1, 2019, employers are prohibited from threatening, intimidating, or discharging any permanent employee based on their jury service. Additionally, an employee’s job position is protected if an employee provides notice as soon as practicable that they intend to return to work after jury service. Further, jury duty protections have been expanded to include service on a grand jury.

Action Items

  1. Have employee handbooks and policies updated where applicable, and train managers on the recent updates.
  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

June Updates

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Varies

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This Short List addresses the following topics:
  1. U.S. Supreme Court: Title VII Claims to the EEOC are Merely Procedural and Not Jurisdictional to Courts
  2. U.S. Supreme Court: State Wage and Hour Rules Don’t Apply to Workers on the Outer Continental Shelf
  3. DOL Issued Updated Poster for Federal Contractors and Subcontractors
  4. California: July 1st REMINDERS for Employers
  5. Emeryville, CA: July 1st Minimum Wage Increase Paused for Small Independent Restaurants
  6. Colorado: Wage Garnishment Reform on the Horizon
  7. Connecticut: Minimum Wage Increasing to $15 an Hour
  8. Minneapolis, MN: Sick and Safe Time Rule Is Still Up in the Air
  9. Kansas City, MO: Bans Pre-Employment Salary History Inquiries
  10. Nevada: Mandatory Safety Training Expanded to Trade Show and Convention Workers
  11. New Jersey: Required Workplace Postings Receive an Update
  12. Texas: Dallas and San Antonio Paid Sick Leave Set to Go into Effect August 1st

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

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All Employers with Employees in LA, MS, and TX

EFFECTIVE

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

Dallas, TX: All Employers Are Required to Implement Paid Sick Leave

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All Employers with Dallas, TX Employees

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August 1, 2019

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(888) 378-2456

Beginning August 1, 2019, Dallas employers with six or more employees will be required to provide paid sick leave (PSL) to employees; employers’ with five or less employees will be required to comply with the new rules beginning August 1, 2021.

  • Who is Eligible? Employees who perform at least 80 hours of work within the City of Dallas in a year, including work performed through a temporary or employment agency. Independent contractors are not eligible.
  • How is PSL earned? Employees must receive one hour of PSL for every 30 hours worked, accruing in one hour unit increments (unless an employer’s written policy states that accrual is in increments of a fraction of an hour). PSL begins accruing at the commencement of employment.
  • How much PSL must be provided? Employers with more than 15 employees at any time in the preceding 12 months must provide employees with at least 64 hours of PSL per year, and employers with 15 or less employees must provide employees with at least 48 hours of PSL per year.
  • How can PSL be used? Employers may restrict employees from using PSL during the employee’s first 60 days of employment if the employer establishes that the term of the employment is at least one year. PSL can be used for the employee’s health care, for a family member’s health care, or in connection with the employee or family member being a victim domestic abuse, sexual assault, or stalking.
  • What documentation can be requested? An employer can adopt reasonable verification procedures for the reason for taking PSL for absences of more than three consecutive work days. However, employers may not require an employee to explain the nature of the reason for taking PSL.
  • Must PSL be carried over? Accrued, unused PSL must carry over to the following year, except where the total PSL is frontloaded at the beginning of each year.
  • What are the notice and documentation requirements? Employees must make a “timely request” for PSL before their scheduled work time, unless PSL is needed for an unforeseen qualified absence. Employers must provide a statement of employees’ available PSL at least monthly. If the employer maintains an employee handbook, a notice of employee’s rights and remedies must be included. Employers are required to post PSL requirements in a conspicuous place where notices to employees are customarily posted.
  • Must PSL be reinstated on rehire? Employees rehired within six months of termination must have their earned PSL available at the time of termination reinstated upon rehire.

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San Antonio, TX: Paid Sick Leave is On the Way – Maybe

APPLIES TO

All Employers of 5 or more San Antonio Employees

EFFECTIVE

August 1, 2019

QUESTIONS?

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(888) 378-2456

On August 16, 2018, a citizen-driven petition pushed the San Antonio City Council to vote and approve mandatory paid sick leave.  Like Austin, San Antonio’s paid sick leave ordinance will require employers of five or more employees to begin providing paid time off next year, with a staggered effective date for smaller size employers. However, also like Austin, the San Antonio paid sick leave (PSL) ordinance may not go into effect if the Texas legislature passes a state preemption law prohibiting localities from issuing their own PSL laws. Look for updates in 2019. In the meantime, key provisions from the San Antonio paid sick leave (PSL) ordinance include:

September Updates

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This Short List addresses the following topics:
  1. The DOL Created a New Department to Support Employer Compliance
  2. OFCCP Staff Must Account for Federal Contractors’ Religious Freedoms
  3. Federal Contractor Minimum Wage Increase for 2019
  4. Sixth Circuit: FLSA Does Not Invalidate Arbitration Agreements
  5. Eighth Circuit: USERRA Still Protects Employees Who Don’t Have Guaranteed Working Hours
  6. Ninth Circuit: Employers Can Prohibit Future Employment With Their Company
  7. California: Update to EDD Workplace Posting DE 1857A
  8. Massachusetts: Railway Unemployment Insurance Act Preempts Statewide Sick Leave
  9. New Jersey: New Bill Expands Ability to Claim Unemployment Insurance Benefits
  10. New Jersey: State and Federal Authorities Pledge Stronger Enforcement Against Misclassification
  11. New York City, NY: Anti-Sexual Harassment Poster and Fact Sheet Now Available
  12. South Carolina: Pregnancy Accommodations Poster Now Available
  13. Austin, Texas: The City’s Paid Sick Leave is On Hold – For Now
  14. Seattle, WA: New Employer Obligations for Domestic Workers

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