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FLSA's Frenetic Frenzy


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NLRB Speaks on Employer Rules


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HR & the Law in the News
July 2015, Volume 14, Issue 7
Hello again and welcome to the latest edition of FiveL Company's monthly e-newsletter, bringing you some of the latest news related to employment policies, practices and programs. 

Check out the upcoming events including this month's webcast, "FLSA Update: Shaping Public Policy through Regulatory Advocacy" pre-approved by HRCI for 1.25 business credits! Click here for more info. 
FLSA's Frenetic Frenzy

Whew! The last 36 hours have filled the Twittersphere and so many other arenas with speculation about the U.S. Department of Labor's (DOL) long-awaited, FLSA "white-collar" regulations.  Here is my preliminary advice. Follow these instructions.
  1. Take a deep breath.
  2. Remember these are only PROPOSED regulations.
  3. Prepare to advocate; you'll have 60 days from the date of publication in the Federal Register to share YOUR business case for supporting or opposing, in whole or in part the regulatory proposal.
  4. Repeat Step 1; it could be many months before the final rule is published.
  5. Then there will likely be at least a 30-day period before the final rule becomes effective. 
  6. So we could be looking at late 2015 into 2016 before this rule goes into effect; depending upon the DOL's diligence and pressure it might be receiving from the White House. 
So what am I talking about?  Let me take a stab at the nutshell version. The rules that determine whether an employee can be properly classified as exempt e.g., not eligible for overtime are commonly known as the white-collar regulations.  They were last updated in 2004.  Since at least February 2015 the DOL has been announcing that proposed, revised regulations would again be issued.  Now it looks like we are nearly there.  

On June 30th, the DOL made the DRAFT, proposed regulations available. The actual regulatory changes comprise just nine (9) pages; the preamble is 286 pages (priceless!). The DOL's website reads (as of this writing), "Although the Office of Management and Budget (OMB) has reviewed and approved the Notice of Proposed Rulemaking (NPRM), the document has not yet been published in the Federal Register." So to keep an eye out and check for yourself, you may want to bookmark the DOL's new web page on this topic.  

So what's all the fuss?  Well, so far it appears that in some respects the news is better than we might have feared, for employers anyway and in some respects more ominous. Of course to be exempt an employee must meet three tests: (1) minimum salary; (2) salary basis; and (3) a duties test. The draft, proposed regulations more than double the minimum salary from what it is today: from $455/week to $921/week.  Why would I say that news is better than what we feared?  As recently as yesterday I was reading projections and speculation that this threshold might increase to $50,400 between now and the time the final rule is published.  

What might not have been anticipated was the proposal that the minimum salary test would be adjusted annually thereafter to a salary rate "published annually by the Secretary [of Labor] in the Federal Register at least 60 days earlier."  The proposal does not indicate however how that rate would be calculated, to what it would be tied, etc.

In the draft, proposed rule the DOL also indicates that despite lots of speculation and rumor they are not proposing any changes to the duties tests at this time.  They are, however inviting during the notice and comment period feedback as to whether changes should be made and, if so what they should be.

Is this really that much of a big deal?  The DOL estimates that 4.6 million workers who are currently classified today as exempt would become non-exempt and eligible for overtime under this proposed rule.  Think about your own staffing and compensation.  If you currently employee an employee who earns less than $921/week and you currently pay that employee a salary and not overtime you might not be able to do that moving forward.  You might have to convert that employee to non-exempt status and start paying overtime. What would that cost you?  

Next Steps:  Advocate, advocate, advocate.  Build YOUR business case.  The DOL is asking for your feedback.  Do not miss this opportunity to share how these proposals will impact your business, for better or worse.

How?  I invite you to join this month's webcast on July 22nd at 10:00 EST when we will walk through:
  • the highlights of the proposed rule; 
  • the issues and questions for which the DOL is asking for more information;
  • methods for calculating the fiscal impact the proposed rule will have on your company and your employees; and
  • steps and resources for getting your message out. 
To register or for more information click here
Pre-approved by HRCI for 1.25 business credits.
Next Webcast
This month's webcast, 
"FLSA Update: Shaping Public Policy through Regulatory Advocacy
July 22, 2015 10:00 - 11:15 a.m. EST

Pre-approved by HRCI for 1.25 business credits.

Click here for a program description or to register.


$49 per person. Live and archived webcasts are pre-approved by HRCI and SHRM for 1.25 credits. 
Discounted group rates available. Click here for more information. 

Upcoming Events: Click here for a full listing of public and private speaking engagements, seminars and conferences.

Upcoming Public Speaking Events
Thursday, July 9th - "Performance Reviews" 1st of a 10-program webcast series hosted by NAMIC 2:00 - 3:00 EST.  
Tuesday, July 28th - "Compensation Trends" 2nd of a 10-program webcast series hosted by NAMIC 2:00 - 3:00 EST.

Upcoming Client Training Programs
  • Leadership Retreat: A facilitated event - VA
  • Tactical & Practical Employee Relations - MD
Click here for a sneak peek at other upcoming events.
NLRB Speaks on Employer Rules
If you had heart palpitations from the first article this will likely sit no better with you.  So I repeat, "Take a deep breath." Personally and professionally I find some (or much) of this saddening and heart-breaking.  I fear for the continuing spiral towards a near complete loss of any requirement for workplace civility, much less any ability to enforce it.  Let me explain.

On March 18th the Office of the General Counsel of the National Labor Relations Board (NLRB) issued a 30-page report (Memorandum GC 15-04) in a series of repeated attempts over the last several years to provide guidance to employers on how to draft and craft policies that will stand up to scrutiny under the National Labor Relations Act (NLRA).  You know this song.  You've heard me sing it before.  But here we go again (and again and again). 

The report is broken into two parts.  Part I addresses employers' rules, generally set forth in Employee Handbooks and gives examples of policy language that was found to violate the NLRA, language that did not violate the NLRA and some illustrative examples for each...well, in some cases at least. The topics covered include: 
  • Confidentiality
  • Employee Conduct toward the Company & Supervisors
  • Employee Conduct towards Fellow Employees
  • Employee Interaction with Third Parties
  • Restricting Photography and Recording
  • Restricting Employees from Leaving Work
  • Conflict of Interest 

The second part of the report analyzes one case against one employer that challenged roughly a dozen different policies, depending upon how you count them. Challenged topics not included in the list above were:

  • Handbook disclosure
  • Social media
  • No Distribution/No Solicitation
  • Telephones and cell phones


Time nor space nor patience permits me to address each of these here (emphasis most likely on the last).  But let me share with you what I find to be perhaps the most offensive and heart-wrenching language used by the Board in this report.  In addressing employee conduct towards supervisors the Board writes, "...a rule that requires employees to be respectful and professional to coworkers, clients, or competitors, but not the employer or management, will generally be found lawful...a rule that prohibits employees from engaging in 'disrespectful,' 'negative,' 'inappropriate,' or 'rude' conduct towards the employer or management, absent sufficient clarification or context, will usually be found unlawful."  


Really?!  A federal government agency is telling us that we need to provide context or clarification in a rule that expects ALL employees to treat all OTHER employees with respect, including managers and supervisors?  Come on, after all supervisors are employees too!  And don't we demand the reverse?  I get employees' Section 7 rights under the NLRA to act in concert regarding their wages, hours or other conditions of employment.  I believe employers are trying to regulate not what is said but how it's said.  It is a sad day when we cannot insist upon civil discourse in and about the workplace that we as employers maintain.


Well if that one knocks your socks off wait 'til you read some of the others! And if you don't feel like reading it then join us and listen. FiveL's August 26th webcast "Employee Handbooks: The Saga Continues" will consider the Board's comparative review of each of these topics and try to provide some method in this madness for reducing liability in developing and updating employment policies, programs, practices and Handbooks!  

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters. 


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