One of the biggest employment
law developments of 2016 will carry over into 2017 and a new
administration. Employers nationwide
spent much of the past year preparing for the December 1, 2016 implementation
of the Department of Labor’s (“DOL”) Final Rule, bumping the minimum salary
level for white collar exemptions under the Fair Labor Standards Act
("FLSA") from $23,660 annually ($455 per week) to $47,476 annually
($913 per week). However, just days
before this key initiative of the Obama administration was to go into effect, a
federal judge in Texas issued a nationwide
preliminary injunction, finding the DOL had likely exceeded its authority
under the FLSA. While breathing a sigh of relief, employers were left wondering
what would happen next.
Current Labor Secretary Thomas
Perez has since appealed the decision to the U.S. Court of Appeals for the
Fifth Circuit, seeking expedited review.
However, even under the expedited briefing
schedule set by the Fifth Circuit, oral argument would not take place until
at least February 2017, which would be after Donald Trump takes office. This would allow the DOL, under Trump’s
expected Labor Secretary Andy Puzder, to abandon the appeal. Puzder, who is the current CEO of the parent company
of Hardee’s and Carl’s Jr., has gone
on record as to his strong opposition
to the DOL’s overtime rule.
My first prediction of 2017 is the Final Rule and its increased minimum
salary requirement never goes into effect. Not surprisingly, Puzder also
opposes efforts to increase the minimum hourly wage to $15, claiming such a significant
increase would hasten the move to automation
in the fast food industry and cost jobs.
In these waning days of 2016, the Equal Employment Opportunity Commission (“EEOC”)
offered guidance to employers as to the rights of employees with mental
illnesses under the Americans with Disabilities Act, and issued updated
enforcement
guidelines on national origin discrimination, including question and
answer guidance and advice for small
businesses. Generally, national origin discrimination refers
to: (a) treating an individual less favorably because he or she is from a
certain place or has the physical, cultural, or linguistic characteristics of a
particular national origin (ethnic) group; or (b) using an employment policy or
practice that disproportionately impacts people on the basis of national origin
and is not shown to be job related and consistent with business necessity.
President Trump also will be
putting his stamp on the EEOC. As
previously reported,
over the last eight years, the EEOC has
taken a very aggressive posture toward employers, including lawsuits against
companies over criminal background checks and separation agreements. The EEOC’s actions and litigation conduct
earned it some harsh words and harsh rulings from a number of federal courts.
President Trump will select a
new EEOC Chairman and a new EEOC General Counsel in 2017, both of whom will set
the tone and agenda of the agency going forward. With the Trump administration’s focus on
reducing regulations faced by businesses, one target could be recent major
revisions to the Employer Information Report (EEO-1). With a focus on equal pay issues, the new
form will require employers to list employee pay and hours by categories of
sex, race and ethnicity. The regulations
are slated to go into effect in March 2018, but under a new administration,
could be revised or even abandoned.
