Top Legal News for Employers

Top Legal News for Employers

Jun 14, 2017

St. Louis City minimum wage law may be stopped in its tracks 

How to manage ‘Weed At Work?’ Listen here as Lowenbaum Law’s Michael Lowenbaum and Brian Bauer from H&H Health reveal everything employers need to know – on FM NewsTalk 97.1 

Top 5 pitfalls when administering the Family & Medical Leave Act

Upcoming Events

Lowenbaum Law was proud to sponsor the 4th Annual Golf FORE! Ellie fundraiser for the Rett Spectrum Clinic at St. Louis Children’s Hospital.  

Recognition

Lowenbaum Law was voted one of the “Best Law Firms 2017” in St. Louis by St. Louis Small Business Monthly. Thank you to our clients for all of your support!

Top Legal News for Employers

May 09, 2017

Here are the top legal updates for employers from last month:

7th Circuit Rules to Protect LGBT Employees Against Employment Discrimination

What Employers of High-Skilled Foreign Workers Need to Know about President Trump’s Buy American and Hire American Executive Order

St. Louis City’s $10/Hour Minimum Wage Law to Take Effect

Upcoming Events

Webinar: How to avoid the five most common pitfalls when administering the Family & Medical Leave Act. Register now for the May 17 webinar.

Marijuana in the workplace: seeing through the smoke in a changing landscape of legislation. Michael Lowenbaum to present at the May 12 event at 8 a.m. at the Drury Inn & Suites, Brentwood. RSVP to ChrisK@HHHealthAssociates.com.

Recognition

Leading immigration attorney Diane Metzger, of Lowenbaum Law, was named one of the ‘Top 100 People to Know in St. Louis to Succeed’.

To Avoid Stiff Penalties, Employers Must Use New Form I-9

Jan 23, 2017

As of Jan. 22, 2017, all employers must use a new version of the Form I-9, Employment Eligibility Verification form, for all new hires and Section 3 reverifications. The new version was published on Nov. 14. Failure to use the new version of the Form I-9 carries stiff monetary penalties, starting at $216 per I-9 violation.

The revised Form I-9 is more technology-friendly, as it includes new drop-down fields, system prompts, calendars for populating dates, and on-screen instructions to guide the user if completing the form on the computer (which is not mandatory). The new form also revised certain fields in order to clarify requests for information (such as “other last names used” as opposed to “other names used”), and now includes an addendum page for additional preparer/translator certifications if more than one preparer or translator assists with the completion of the form.

The most notable changes to the new Form I-9 can be seen in the new form’s instructions, which have ballooned from 9 pages to a whopping 15 pages. The expanded instructions provide a much more comprehensive explanation about how to properly complete each field of the form, the acceptable abbreviations for List A, B, and C documents, and the new instructions also provide additional information regarding potential citizenship and national origin discrimination claims.

Other notable changes include an “additional information” box where employers can write additional notes regarding the I-9 verification process. Previously, employers had no designated area in which to provide such notes, and were left to randomly scribble such notes in open areas in the margins of the form.

As with any new government form however, there are pitfalls which await the unwary practitioner. Therefore, it is imperative that employees and agents completing the new Form I-9 on behalf of your company are familiar with the Form I-9 requirements in order to avoid potential monetary and criminal liability. 

If you have any questions regarding the new Form I-9 or any other immigration matter, please do not hesitate to contact Diane E. Metzger.

Federal Judge Stuffs the DOL’s Turkey: New FLSA Regulations Enjoined

Nov 23, 2016

            Employers have been granted a surprise reprieve from the onerous overtime regulations promulgated by the federal Department of Labor (DOL) scheduled for implementation on Dec. 1, 2016.  Yesterday, a federal judge in Texas issued a nation-wide injunction against implementation of the new regulations.  This action represents an historic victory for employers but also creates a serious conundrum for many companies who have already taken steps to comply with the new regulations. 

            The final new regulations created a firestorm of controversy because they would have increased the “salary level” for the so-called “white collar” exemptions from the overtime requirements of the Fair Labor Standards Act (FLSA) to $47,476 annually.  This increase more than doubles the current salary level and has caused many employers to significantly raise the salaries of employees for whom an exemption was claimed.  The impact was particularly acute for employees falling under the executive (supervisory) exemption but also impacted employees classified as exempt “administrative” employees.  In addition to triggering a wholesale increase in pay for exempt employees, the new regulations prompted many employers to reassess, and in many cases, restructure their supervisory and administrative staffs. 

            In enjoining the implementation of the new regulations the federal judge concluded that the DOL was not privileged to impose a salary test at all for the exemptions, but instead was statutorily required to focus exclusively on the work performed by the putative exempt employee.  The judge’s decision is preliminary; and the injunction remains in effect only until a hearing on a permanent injunction can be conducted.  We cannot predict with confidence the ultimate outcome of this lawsuit; or how long this injunction may remain effective. 

            This surprise, but welcome decision, creates a dilemma for employers.  Those employers who have already made salary adjustments and/or operational changes to comport with the new regulations, must decide whether to announce they are rescinding the raises and unwinding the operational changes; or maintaining  the new status quo and await further developments.  Those that have not yet implemented changes have available an additional alternative to merely suspend implementation and wait to see what happens next. Clearly, any precipitous action to rescind salary increases or postpone planned restructuring could have a deleterious impact on morale.  However, rescinding scheduled raises could also ameliorate some of the more draconian aspects of the new regulations. 

            We urge all employers who have contemplated or already taken action to comply with the new regulations to immediately contact the experienced Wage and Hour attorneys at Lowenbaum Law so we can address these issues and work through the best solution for your business. 

Illinois Employers Beware of Employee Sick Leave Act and Child Bereavement Leave Act

Sep 01, 2016

Two laws recently enacted by the Illinois legislature affect most Illinois employers. These include:

The Child Bereavement Leave Act

This Act took effect July 29, 2016 and applies to all employers covered by the Family and Medical Leave Act (FMLA). This type of leave is only available to employees who fall under the definition of an “eligible employee” under the FMLA. An employee who does not meet FMLA eligibility requirements is not eligible for Child Bereavement leave.

If an eligible employee has not exhausted all available FMLA leave and has a child who dies, the employee may take off up to a maximum of two weeks (10 working days) to:

  • Attend the funeral, or an alternative to a funeral, of the employee’s child;
  • Make arrangements necessitated by the death of the child; and/or
  • Grieve the child’s death.

“Child” includes the employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. The bereavement leave need not be paid, and must be taken within 60 days of the date the employee receives notification of the child’s death. The employee must provide the employer with at least 48 hours’ advance notice of the employee’s intent to take bereavement leave, unless providing such notice is not reasonable and practicable.

In the event of the death of more than one child in a 12-month period, an employee is entitled to take up to a total of 6 weeks of bereavement leave during the 12-month period.

Please note that Child Bereavement leave is not available if the employee has already exhausted all of his or her FMLA leave. Further, the employer has the right to require the employee to provide reasonable documentation to verify the need for leave, such as a death certificate, a published obituary, or a note from the funeral home.

The Employee Sick Leave Act

The Illinois Employee Sick Leave Act takes effect on Jan. 1, 2017.

The Act provides that employees may use “personal sick leave benefits” provided by an employer for absences due to an illness, injury, or medical appointment of the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent for reasonable periods of time as the employee’s attendance is necessary, on the same terms and conditions upon which the employee is able to use sick leave benefits for the employee’s own illness or injury.

The Act defines “personal sick leave benefits” as “time accrued and available to an employee to be used as a result of absence from work due to personal illness, injury, or medical appointment.” The term does not include “absences from work for which compensation is provided through an employer’s plan” which, according to the legislative history, appears to mean the employer’s short-term or long-term disability plans.

The Act allows an employer to limit the employee’s use of sick leave for one of the relatives described above to an amount not less than the personal sick leave amount that would have accrued during a six-month period at the employee’s then-current rate of entitlement. If an employee has more than six months’ worth of sick leave benefits available, the employer may cap the amount the employee can use for a family member’s illness, injury, or medical appointments to the amount of sick leave the employee earned over a six-month period.

The Act does not increase any rights an employee has under the FMLA and contains a non-retaliation provision prohibiting an employer from denying personal sick leave benefits in accordance with the Act and prohibits any act of retaliation (such as discharge, demotion, suspension, or any other form of discrimination) against an employee for using personal sick leave benefits as provided for in the Act.

If you have any questions about these Acts or any other employment matter, please feel free to contact Karen Milner, Chris Sanders, Corey Franklin, Whitney Cooney, or Jamie M. Westbrook.

Take Action Now: Persuader Rule Update

Jun 16, 2016

With its new “persuader rules” scheduled to become effective July 1, 2016, the Department of Labor (DOL) is feeling the heat of withering criticism. In response to lawsuits challenging aspects of the new rule filed by a number of state attorney generals, employers, management-side labor law firms, employer associations (such as the U.S. Chamber of Commerce), and the American Bar Association), the DOL has been forced to define a significant “loophole” in enforcement of the new persuader rules. This significant loophole commands the immediate attention of all existing clients.

In brief, the new persuader rules will require employers and law firms to publicly disclose through filings with the DOL any arrangements to even indirectly persuade employees concerning the right to organize and bargain collectively. Effectively, the rules require employers to report all monies expended for the purpose of resisting union organizing not only for actual direction of union avoidance campaigns, but also peripheral activities such as conducting union avoidance training for managers and supervisors. The rules also extend a concomitant reporting obligation to the attorneys who perform this work for the employer.

The broad definition of persuader activities fashioned by the DOL will create a monumental headache for employers and will provide the unions with fodder for their organizing campaigns. The rules have the potential to fundamentally alter the relationship between attorneys and their clients in the realm of union avoidance and seriously circumscribe the role attorneys can fill in orchestrating successful resistance to union organizing.

It is important for all employers to take immediate action to forestall the adverse consequences of the new rules. The DOL has now publicly affirmed the rules will only apply to attorney/client engagements entered into on or after July 1, 2016, even if the work contemplated by the engagement will be performed in the future (if at all). This means an employer that engages their lawyers prospectively to represent them in union avoidance matters may escape the obligation to publicly report persuader activities, even if these activities are undertaken after July 1.

We will be distributing supplemental engagement letters for clients impacted by these rules. We strongly urge all clients to act immediately upon receipt of the supplemental engagement letters to execute and return the letter to us. If your company is not presently a client, and are interested in engaging our firm to provide legal advice on labor relations and union avoidance matters, please contact R. Michael Lowenbaum, Corey L. Franklin, Robert S. Seigel, David P. Frenzia, D. Michael Linihan, or any other labor law attorney to discuss this matter more comprehensively. As always, we are happy to discuss any questions or concerns you may have concerning the purpose or content of the letters.

Final Rule Issued by DOL Raising the Minimum Required Salary for Exempt Status under FLSA

May 18, 2016

Today, the U.S. Department of Labor (DOL) formally issued the final regulations that will increase the required salary an employee must receive to qualify for exempt status under the professional, executive, administrative, and computer exemptions. The new regulations also increase the required salary to qualify for the highly compensated employee (HCE) exemption. The Final Rule has been issued and is scheduled to be published in the Federal Register on Monday, May 23, 2016.

The good news is that these increased salary requirements do not take effect until Dec. 1, 2016. Key Provisions of the Final Rule include:

  • The weekly salary required to qualify for the exemptions above (aside from the HCE exemption) will be $913.00 per week ($47,476.00 annually);
  • The annual salary required to qualify for the HCE exemption is $134,004.00;
  • There is no change to the “duties” tests. The current “duties” tests used to qualify for the professional, executive, administrative, computer, and HCE exemptions have not been revised in the final regulations;
  • The Final Rule allows employers to include non-discretionary bonuses and commissions to satisfy up to 10% of the standard salary level; however, for employers to credit nondiscretionary bonuses and incentive payments toward a portion of the salary, the Final Rule requires such payments to be made on a quarterly or more frequent basis and permits employers to make a “catch-up” payment; 
  • The Final Rule includes a mechanism to automatically update the required standard salary level every 3 years (therefore no further increases will take effect until Jan. 1, 2020). Specifically, the standard salary level for the professional, executive, administrative and computer exemptions will be updated to maintain a threshold equal to the 40th percentile of weekly earnings for full-time salaried workers in the lowest-wage Census Region, and the standard salary level to qualify for the HCE exemption will maintain a threshold equal to the 90th percentile for annual earnings of full-time salaried workers nationally. The DOL will publish updated rates in the Federal Register at least 150 days before their effective date and will post them on the DOL website.

If you have any questions about these changes or any other wage and hour matter, please do not hesitate to contact Karen E. Milner, R. Michael Lowenbaum, Robert S. Seigel, Corey L. Franklin, Christopher M. Sanders, David P. Frenzia, Whitney P. Cooney, or Jamie M. Westbrook.

Department of Labor Issues Controversial Union “Persuader” Rule

Mar 24, 2016

Yesterday, the Department of Labor issued its long-awaited and controversial “persuader” rule requiring companies to disclose when they seek advice about countering union campaigns. The rule requires the employer and the attorney to report any actions, conduct, or communications taken-whether directly or indirectly- to affect employees’ decisions regarding union representation and collective bargaining. The rule affects agreements for representation entered into after July 1, 2016, between employers and attorneys.

The new rule is not only broad and expansive in its reach, it also represents a major shift. Under the current rule’s “advice exemption”, employers who engage counsel for advice on union matters do not have a reporting obligation as long as counsel does not interact directly with employees and the employer is free to accept or reject any communications prepared by counsel. The new rule however, will require employers to report not only that they have sought legal advice regarding union organizing and collective bargaining issues, but also a host of other various employment issues.

In practical terms, the rule will require attorneys and their clients to report to the Department of Labor, as a matter of public record, the time spent on a variety of labor and employment issues and the cost to the employer of the attorney’s services. The changes set forth in the rule are substantial and there will likely be more in the future.

While the rule has been widely criticized as promoting a violation of the attorney/client privilege, the Department of Labor is not expected to delay enforcement of the rule unless forced to do so by a court. As such, we anticipate several business organizations will file lawsuits seeking court orders blocking implementation of the rule.

If litigation is initiated, we will continue to closely monitor developments to determine whether attorneys and clients are required to abide by the new reporting requirements while the litigation is pending. We are in the process of reviewing the 446-page rule in its entirety to determine its full impact our clients. In the event litigation fails, we will ensure our clients will be in compliance with the new rule’s requirements..

If you have any questions about the persuader rules or any other labor matter, please do not hesitate to contact Lowenbaum Law’s Labor Team

Big Changes Are Coming to Overtime Laws Very Soon

Mar 18, 2016

Earlier this week, the U.S. Department of Labor submitted its final overtime rule to the Office of Management and Budget (OMB) for review. While the final rule has not yet been released, we know that the primary focus of the DOL’s initial proposed rule, published last July, is to increase the salary required for an employee to qualify under the professional, executive, administrative, or computer exemptions. Under the initial proposed rule, the weekly salary amount required for exempt classification will increase from $455 per week to $970 per week, for an annual minimum salary of $50,440.00.

The OMB review could take several weeks to several months to be completed. After the review is complete, the final rule will be published in the Federal Register. After publication of the final rule in the Federal Register, employers will have sixty (60) days to begin complying with the new regulations.

We urge employers to plan ahead for the implementation of these regulations including how to best handle the changes in your workforce. We encourage employers to contact any of our attorneys to discuss the best way to make the transition to comply with the new regulations. Changes may involve reclassifying some currently exempt employees to non-exempt status, increasing weekly salaries of employees who are close to the threshold, and other alternatives.

If you have any questions about how you and your company can best prepare for the implementation of the final rules or any other wage and hour matter, please do not hesitate to contact Karen E. Milner, R. Michael Lowenbaum, Robert S. Seigel, Corey L. Franklin, Christopher M. Sanders, David P. Frenzia, Whitney P. Cooney, or Jamie M. Westbrook.

News from the EEOC: Charging Parties to Gain Access to Employer Responses

Mar 09, 2016

The Equal Employment Opportunity Commission (EEOC) recently announced that, for all charges filed with the EEOC as of Jan. 1, 2016 and later, Charging Parties and/or their attorneys will be able to request and receive a copy of the position statement as well as all non-confidential information submitted by the Respondent to the EEOC in connection with the charge.

The EEOC identified specific categories of information potentially qualifying as “confidential:”

  1. Sensitive medical information other than that of the Charging Party;
  2. Social Security numbers;
  3. Confidential commercial or financial information;
  4. Trade Secrets;
  5. Non-relevant personally identifiable information about a witness or non-parties and other third parties, such as Social Security numbers, dates of birth (non-age cases), home addresses, phone numbers, e-mail addresses, etc.;
  6. References to charges filed against the Respondent by other Charging Parties.

If the Respondent is submitting confidential information with its response, the Respondent should provide this information in separately labeled attachments clearly marked as “confidential.”

NOTE: While the EEOC will provide the Respondent’s position statement and non-confidential information to Charging Parties upon request, the EEOC will not provide the Charging Party’s response to the Respondent during the investigation. The Charging Party will be afforded 20 days from receipt of the position statement to submit a verbal or written response to the position statement and any supporting evidence. Additionally, under the new system, the Charging Party will be notified of his or her right to request a copy of the employer’s position statement at the time he or she files a charge.

The new procedures stress the importance of retaining experienced counsel to assist in the preparation of position statements filed with the EEOC. If you have any questions about the new EEOC procedures, please do not hesitate to contact Karen E. Milner or Whitney P. Cooney.