Summer Reading: Some New Employment Law Developments to Know
Happy (almost) summer. Before you head to the beach for a well-deserved vacation, we post this short article to update you on several substantive developments in the employment law world.
New Overtime Regulations Effective December 1. As you know, the DOL has published its new overtime regulations that will take effect December 1,2016. The key provision is that an employee needs to earn at least $47,476 per year to be exempt from the federal overtime requirements. Gentry Locke recently hosted a webinar on the new regulations. Please contact us if we can assist your organization in any way.
EEOC Publication on Leave as ADA Accommodation. What should you do if you have an employee who is not eligible for FMLA leave, or has exhausted his FMLA leave, and seeks additional leave for a purported medical impairment or condition? On May 9, 2016, the EEOC published a resource document articulating its position as to the “prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation” under the ADA. This issue continues to be a priority for the EEOC. Generally stated, the EEOC’s position is that an employer is obligated to engage in an “interactive process” with the employee and will likely be required to provide additional leave unless the employer can prove that doing so would create an “undue hardship.”
New FMLA Compliance Guide. On April 25, 2016, the DOL published “The Employer’s Guide to the Family Medical Leave Act” to provide employers with a fresh and reader friendly outlook of the FMLA process. While it does not address some of the more complicated questions facing employers, it is a useful document that we commend to you.
EEOC Initiative to Expand Title VII to Cover LGBT Individuals. In March, the EEOC filed lawsuits against private sector employers in federal court contending that discrimination against individuals based on their sexual orientation or gender identity is unlawful “gender” discrimination under Title VII of the Civil Rights Act of 1964. (I wrote about this trend 3 years ago.) It is my judgment that the courts are increasingly likely to adopt the EEOC’s position. Are your managers trained sufficiently as to issues that might arise in the workplace as to employees who are gay, lesbian or transgender?
Federal “Defend Trade Secrets Acts of 2016.” On May 11, 2016, the “Defend Trade Secrets Act” (DTSA) became law. The law creates a new federal civil cause of action for trade secret misappropriation. The DTSA also includes, however, affirmative protection to whistleblowers who may rely upon trade secrets to disclose purported misconduct to government officials and/or legal counsel. Does your company require employees to sign confidentiality or non-disclosure agreements? If so, for any such agreements or amendments presented to employees after May 11, 2016, you need to add language to inform the employee about the whistleblower protections in the law. If you do not include the new notice language, the company’s ability to recover attorney’s fees or exemplary damages will be forfeited. Let us know if we can help you with the necessary notice language or if you have other questions about your non-competition or non-disclosure agreements. (In the near term, we will also be posting a series of more comprehensive articles on protecting a company’s assets under Federal and Virginia law.)
NLRB Enforcement of Protected Concerted Activity (PCA) by Employee(s). The NLRB continues its aggressive pursuit of unfair labor practice claims in which employers take disciplinary action against employees for allegedly engaging in “protected concerted activity” (PCA) as to their terms and conditions of employment. I recently wrote an article regarding a recent case in Virginia that illustrates the NLRB’s overreach.
2016 Election. I have heard that there is some sort of election in November. Seriously, the Presidential election will once again be critical for many reasons. Given the landscape to date, it is almost certain that there will be strong and conflicting opinions by your employees as to the candidates and their positions. You should generally be aware of the conduct of your employees, and ensure that there are no violations of your EEO policies (e.g., no discrimination or harassment against employees on basis of national origin, religion, gender).
Employment Law Training for Supervisors. While we have your attention, we remind you that we regularly provide employment law training to company managers with an overview of the pertinent employment laws and risks, and practical recommendations to minimize your company’s legal risks. Please contact us if your company has any interest in such training.