Department of Labor Announces Final Rule on New Overtime Salary Minimum
As we previously reported, we have been awaiting the final rule from the Department of Labor (DOL), raising the salary threshold for those eligible for overtime. Today, the DOL announced the new rule, raising the standard salary level from $455 per week to $684 per week ($35,568 for a full-year worker), which will make approximately 1.2 million more workers eligible for overtime. This new rule, which goes into effect January 1, 2020, will also allow employers to use non-discretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level. Additional information about the new rule can be found here.
For questions regarding how the new overtime rule, job classifications, or wage and hour issues may impact your company, contact Mansour Gavin’s Labor and Employment Group.
The National Labor Relations Board (“NLRB”), in a 3-to-1 decision, dealt another setback for Unions and their efforts to improve membership by further eliminating the right of Unions to organize “mini-bargaining units” within a larger facility. This decision further enforces the NLRB’s decision in PCC Structurals, Inc. (2017) in which the Board re-enforced its rejection of the Obama Board’s decision in Specialty Healthcare (2011) which broadened the right of Unions and employees to organize smaller units within a larger facility. In the Court’s new decision, The Boeing Company, the Board clarified the “Community-of-Interest” standard enunciated in PCC Structurals by applying a three-step process for determining whether the proposed bargaining unit is appropriate. The Board determined that:
1. The proposed unit must share an internal Community-of-Interest. That is, the employees share similar functions, share common supervision, and work in common work areas.
2. The interests of those within the proposed unit and the shared and distinct interests of those excluded from the unit must be comparatively analyzed and weighed. In other words, instead of focusing on the smaller proposed unit, the focus now switches to whether the “excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.” Said another way, taken as a whole, are the differences between the proposed unit and the excluded unit significant enough to warrant approval of the proposed smaller unit?
3. Where applicable, there should also be consideration of guidelines that the Board has already established for specific industries with regard to appropriate Union configurations (such as defense contractors).
Under the Obama Board, Unions which did not enjoy the support of a majority of a larger facility would often seek to organize smaller distinct units within a particular facility. This, in turn, would not only lead to a possible situation where the facility was both unionized and non-unionized but often was used as a means of leveraging Union support in other parts of the facility. However, as the Board has made clear in The Boeing Company decision and its earlier decision in Specialty Healthcare, that strategy has been significantly undercut.
For further information on the impact of these proposed rules, please contact members Mansour Gavin’s Labor and Employment Group.
The National Labor Relations Board (“NLRB”) is continuing its effort to undo many of the changes made during the era of the Obama Board through the Board’s rule-changing authority. The latest initiative is the much anticipated proposed changes to the Union election process which was announced on August 12. The three most significant proposed changes include:
1. Eliminating “blocking charges” from postponing elections. For several years, employees and Unions petitioning for Union recognition often filed unfair labor practice charges shortly before Union elections in an effort to “block” the election until the charge had been completely resolved. The so-called blocking charge became a favorite weapon of Unions, particularly where Union support appeared to be shaky. Under the proposed rule, the NLRB will no longer postpone Union elections based merely on the filing of the charge. Instead, the new rule would permit the election to go forward and the results would be held in abeyance until the unfair labor practice was resolved. This would remove a potentially significant strategic advantage for Unions.
2. Modified “Voluntary Recognition Bar.” Under the current rules, employers are free to voluntarily recognize Unions in the absence of an NLRB election and employees have no say in the outcome. This is called the Voluntary Recognition Bar. Under the proposed rule, employees are to be given notice of the proposed Voluntary Recognition and offered a 45-day open period for filing an election petition seeking a vote on whether or not to recognize the Union.
3. “Pre-hire” Agreements in the Construction Industry. Under the current law, pre-hire collective bargaining agreements can be entered into without a showing of employee majority support for a Union and even before it has hired any employees. Under the proposed rule, the Board will now require actual evidence of employee majority support before it will approve a pre-hire agreement.
These proposed rules continue the NLRB’s effort to reconstruct itself into a more employer-friendly Board. This follows, for example, the Board’s decision in Cordúa Restaurants announced just last month permitting employers to require employees to sign mandatory arbitration agreements barring collective actions under the Fair Labor Standards Act even if in response to Section 7 (organizing) activity, which we discussed here.
For further information on the impact of these proposed rules, please contact members of the Mansour Gavin Labor and Employment Group.
In a 3 to 1 decision, the National Labor Relations Board (NLRB) has affirmed the right of employers to require its employees to sign mandatory arbitration agreements prohibiting employees from opting into a collective action in a Fair Labor Standards Act claim for overtime pay. It went even further to grant employers the right to terminate any employee who fails to or refuses to sign such a mandatory arbitration agreement.
In the decision of Cordúa Restaurants, Inc. and Steven Ramirez and Rogelio Morales and Shearone Lewis (August 2019), the employer-friendly board reversed a decision by the administrative law judge who found the employer violated the rights of certain employees who refused to sign mandatory arbitration agreements. In this particular case, the employer required its employees to sign mandatory arbitration agreements which waived the employee’s “right to file, participate or proceed in class or collective actions (including a Fair Labor Standards Act collective action in any civil court or arbitration proceeding).” After a number of employees opted in (joined) a collective action filed against the employer filed by another group of employees seeking damages for violations of the Fair Labor Standards Act, the employer then revised its arbitration agreement to include a prohibition against employees opting in or joining these types of collective actions. Several of the employees refused to sign the mandatory arbitration agreement with the new language and those employees were discharged.
In 2018, the U.S. Supreme Court issued its decision in an Epic Systems Corp. v. Lewis holding that arbitration agreements which contain class and collective action waivers and which further required employment disputes to be resolved by individual arbitration did not violate the National Labor Relations Act. Relying upon the Supreme Court’s decision in Epic Systems, the NLRB reasoned that the “promulgation of such an agreement, even in response to Section 7 activity,…does not violate the Act.” Despite a vigorous dissent by Member McFerran, the Board felt that requiring employees to execute a mandatory arbitration agreement waiving any right to even opt into a collective action did not “chill” the rights of employees from engaging in permitted activity under the NLRA. Moreover, the NLRB reasoned Epic Systems specifically permitted an employer to condition continued employment on employees signing such agreements and thus threatening employees with discharge for refusal to sign was not unlawful.
With the growing number of claims under the Fair Labor Standards Act for unpaid overtime and the prevalence of collective actions, this decision by the Labor Board will be welcomed by many employers and will be certain to cause employers to consider the need for mandatory arbitration agreements. While the decision of the Labor Board may be appealed to the Circuit Court, it is far from certain that the decision will be overturned.
Employers faced with overtime issues should consider the impact of Cordúa Restaurants, Inc. and consult with their professionals about the need for mandatory arbitration agreements.
Our attorneys are always ready, willing and able to meet and discuss any questions you may have. Learn more about Mansour Gavin’s Labor and Employment Group.
Dan McGuire will be presenting at the National Business Institute’s audio webinar “Estate Planning for Every Phase of Life.”
Wednesday, Sept 11, 2019
1pm – 415pm
Program Description
Advise Clients of All Ages with Confidence
Clients at each stage of life pose unique estate planning challenges that even the most skilled advisor may overlook. Are you prepared to address the concerns of individuals of all ages, from young parents considering a will for the first time, to retirees planning for long-term care? This program will provide you with practical guidance on how to apply fundamental planning techniques to your client’s specific circumstances. Address the estate planning concerns of individuals at all stages with certainty – register today!
- Provide your clients with peace of mind by establishing a plan for guardianship and custody of minor children.
- Understand what estate planning documents need to be updated after a divorce.
- Work with your clients to create a plan for charitable giving.
- Help your aging clients understand what their adult children need to know about their parents’ estate plan.
- Review the essential documents needed at each stage of life.
The program is designed for attorneys, accountants, and paralegals. CLE and CPE credit is available.
To learn more or to register, click here.
Edward Patton will be presenting on Friday, July 26 at the at the City of Mentor’s Seminar: How Will the USMCA Affect North American Trade? The USMCA (United States-Mexico-Canada Agreement) is slated to replace the 25-year-old North American Free Trade Agreement (NAFTA) once approved by legislatures of the three participating countries – Canada, Mexico and the United States. This program will address changes that may impact your business and will also provide an overview on principal documents required for export to Canada and Mexico. For more information or to register, click here.
On March 7, 2019, the Department of Labor announced its Notice of Proposed Rule Making to increase the “white collar” overtime exemption threshold from $23,660/year to $35,308/year (or $679/week). https://www.dol.gov/newsroom/releases/osec/osec20190307
This increase is projected to impact more than one million Americans, making them eligible for overtime compensation for all hours worked over 40 in a workweek. Once the rule is published in the Federal Register, there will be a 60-day public comment period.
Communication: “Who gets the china?” (OK, but who actually wants the china?)
By: Dan McGuire
This is part 2 of a series breaking down the process of helping clients set up their Wills by breaking the issues down into smaller, individual topics, enabling the adviser and client to take the necessary steps, and get the plan moving.
People generally think that their family will not fight over anything after they die. That may be the case in a lot of situations, but in others, long dormant rivalries and issues suddenly surface. Perceived slights become the basis for litigation. A thoughtful approach to the estate plan can minimize that risk. The key, of course, is communication, both with the client, and the client with his/her family.
Simply asking family members what each would like to receive, or expects to receive upon the client’s death, can mitigate many issues. Without those conversations, the client may be wrestling with deciding who should get the painting in the dining room when no one really wants it in the first place. That may be heartbreaking to the client but knowing in advance may allow the client to find someone who really would appreciate getting it. In fact, family members may want things the client never even considered such as holiday decorations, old gifts from the child that the client may still have but forgotten the source, or other items that may hold sentimental value to a particular family member. It is also better for the client to find out in advance that more than one person has set their sights on one specific object!
Often, part of the initial discussion with a client who wants to start defining the estate plan involves giving the client homework: “Talk to your family and find out what THEY want from you.”
Our next topic will be a discussion of how to address the distribution of the personal property the client has discussed with the family.
Our attorneys are always ready, willing and able to meet and discuss all of those questions, help you articulate your plan and goals, determine the best plan to accomplish them, and then implement it. You will find that, by taking those small bites, the problem that used to lead to procrastination and uncertainty has been addressed and resolved. Learn more about Mansour Gavin’s Estate Planning & Probate group.
By: Brendon Friesen
Copyright law immediately protects a creator’s original work once reduced from a mere idea to a “medium of expression” such as artwork, novels, photography and video. Among other rights, the creator has the exclusive right to copy it. While copyright exists at common law, if you want the full protection and remedies offered by the U.S. Copyright Act you must deposit your work with the Copyright Office and pay a fee. Many do not take that extra step to protect their original work.
The Supreme Court shook the copyright world on March 4, 2019 with its decision in Fourth Estate Public Benefit Corporation v Wall-Street.com. Justice Ruth Ginsberg issued the decision, finding that copyright owners must register their copyright with the U.S. Copyright Office before bringing a lawsuit to stop infringement. Prior to the Fourth Estate decision, Circuit Courts were split on the issue – some of which allowed copyright owners to apply for registration at the time of filing the lawsuit. The wait-and-see approach became common practice and, according to Justice Ginsberg, defeated the purpose of the Copyright Act and intent of Congress. The Court believed that forgiving the failure to register de-incentivized copyright owners to take the required steps to register their copyright at, or before, the time of publication. The decision, while perhaps consistent with the language of the Copyright Act, is problematic if you have not already taken steps to register your copyright. The current review period of the Copyright Office from submission to registration, assuming there are no problems faced in the process, can be months, not days or weeks. That is, the copyright owner must wait months to bring a lawsuit to stop an infringement.
What does this mean for you? That original work you created is always at risk of infringement. If you have not taken steps to register the copyright, given the Fourth Estate decision, you’ll be sitting on the sidelines before you can get in the game to defend your turf. All the while, the bad guys are cashing in on your hard work and just might get away with it for not more than a slap on the wrist. Also keep in mind that certain statutory damages, up to $150,000 for each violation plus attorney’s fees, are not available if the infringement occurred after publication and before your effective date of registration. So take that extra step and get your copyright registered with the U.S. Copyright Office.
Charles Brown (former chief magistrate of the Cuyahoga County Probate Court) will be the guest speaker at the upcoming Cleveland Association of Paralegals, Inc. Student Workshop.
Saturday, April 13, 2019
Stautzenberger College
Brecksville, OH
9am-noon (registration will open at 8:30am)
For more information, visit https://www.capohio.org/home-page or RSVP by April 6th, 2019 to secretary@capohio.org.