Presenters: Kathy Speaker MacNett, Esq. SkarlatosZonarich LLC. and. Janice Appleby Chief Human Resources Officer

Size: px

Start display at page:

Download "Presenters: Kathy Speaker MacNett, Esq. SkarlatosZonarich LLC. and. Janice Appleby Chief Human Resources Officer"

Oswald Johns
6 years ago
Views:

March 14, 2017 SkarlatosZonarich LLC 2017 Disclaimer: This presentation

legal advice applied to specific factual settings.

attorneyclient privilege. I. DOL FLSA Wage and Hour Regulations II.

1 Presenters: Kathy Speaker MacNett, Esq. SkarlatosZonarich LLC and Janice Appleby Chief Human Resources Officer March 14, 2017 SkarlatosZonarich LLC 2017 Disclaimer: This presentation contains only general information and does not take the place of specific legal advice applied to specific factual settings. Nothing in this communication should be construed to create an attorneyclient privilege. I. DOL FLSA Wage and Hour Regulations II. Defend Trade Secrets Act III. DOL Fiduciary Regulations IV. Affordable Care Act versus the Proposed American Health Care Act V. Transgender and Related Issues 2 1

2 The regulations would have raised the white collar salary exemptions from $23,660 to $47,476 or $913 weekly. 10% Bonus amount allowed. Stay Issued: State of Nevada v. U.S. Department of Labor, Civil Action No. 4:16-cv ALM (Mazzant). Federal court in Eastern District Texas stayed the implementation of the December 1, 2016 wage and hour regulations on a nationwide basis. 3 Merits of the litigation have not yet been addressed by the court. DOL reply brief now due on May 1, It is unclear whether the Trump administration will act to save the regulations in whole or in part. 4.2 million workers impacted. 4 2

3 Question: If the Employer implemented the proposed regulation, can the Employer change back? Answer: Legally, yes in conjunction with notice requirements in wage payment laws. Practically, more difficult to do. 5 Highly Compensated Employee Exemption ( HCE ) salary threshold may have increased. There is some belief that the HCE has been increased from $100,000 to the higher level of $134,004 because it was NOT addressed in the Court s opinion. This has a single component duties test rather than multiple tests. 6 3

4 White Collar exemptions apply to selected employees: Executive; Administrative; and Professional 7 Employees are exempt from payment of overtime if employees generally meet a: Duties Test AND Salary Test 8 4

5 Three Tests for Exemption Salary Level Salary Basis Job Duties U.S. Department of Labor Wage and Hour Division Starting point: State law can top FLSA Because you must then comply with the stricter requirements, e.g. California

6 Pennsylvania Legislature is expected to consider legislation to more closely align Pennsylvania and federal law. SB1360 (L. Baker) Session. Concept is to be reintroduced this year. 11 Minimum Wage Examples Federal $7.25 State Examples Delaware $8.25 New Jersey $8.44 New York Varies depending upon location on state; may be $9.70 Pennsylvania $7.25 Virginia $7.25, if an employer has 4 or more employees 12 6

7 Recent Executive Orders for Federal and State Contractors Federal: Minimum wage of $10.15 per hour for federal contractors. Pennsylvania: Minimum wage of $10.15 per hour for Pennsylvania contractors and limited number of state employees. 13 Selected Differences in Pennsylvania Pennsylvania law does not have a computer professional exemption or a highly paid exemption Salary level is $250 weekly Avoid compliance with PMWA and non-compliance with FLSA No computer exemption Fluctuating work week problematic Weighted average for overtime problematic 14 7

8 The hourly rate of pay does not equal the Regular Rate in all cases. Example: $9 hourly rate may be a $10 Regular Rate when bonuses and other payments are added. 15 Regular Rate Is determined by dividing total earnings in the workweek by the total number of hours worked in the workweek includes nonexempt salaried employees May not be less than the applicable minimum wage U.S. Department of Labor Wage and Hour Division 8

9 Example: Hourly Rate + Production Bonus Total Hours = 48 Hourly Rate = $9.00 Bonus = $10 48 hours x $9.00= $ Bonus $ $ / 48 hrs = $9.21 (Regular Rate) $9.21 x.5 = $4.61 $4.61 x 8 hrs = $36.88 (Overtime Due) U.S. Department of Labor Wage and Hour Division This is a relatively new federal law, which creates a federal, private cause of action for misappropriation of trade secrets. It applies to written documents for employees, but hurts employers if magic language is not included. 18 9

10 The magic language allows employers to recover attorney s fees or exemplary damages if there is a breach of confidential information. Without the language, the employer cannot recover those amounts. Credit Unions should include the magic language. Applies to employees and independent contractors, consultants and contractors. Notice or Consequences: The Defend Trade Secrets Act of EF23F30FEDED/C67FD2F38AC4859C/ 19 The Obama Administration had promulgated new regulations under ERISA, the Employment Retirement Income Security Act to expand the definition of investment advice fiduciary. The Trump Administration issued a memo delaying the implementation of that rule by 180 days, and requiring the DOL to carry out a legal and economic analysis of the rule

11 The regulation requires an adviser to act in the best interests of the client and place the client s interest above that of the adviser. A disclosure agreement has to be provided to clients by advisers who work on a commission basis. The rule applies to defined benefit and defined contribution plans, 401(k), SERPs, IRAs and certain other plans 21 Reportedly changes standard Suitability Standard (meets client investment objectives) Fiduciary Standard (legal obligation to put client first) 22 11

12 Five lawsuits pending. Three courts have refused to stay the regulation: Dallas, Texas Kansas Minnesota Merits of the regulation have yet to be considered. 23 Stay tuned for developments as the Proposed American Health Care Act is considered and travels through the congressional legislative process. Preliminary reports are that: Employer mandate will be removed; Preexisting conditions for individuals will remain covered; Mandatory coverage will be removed; Tax credits will be added; Medicaid expansions may be retrenched; Dependents coverage age until age 26; and Delays implementation of the Cadillac tax until

13 Right now the issue seems to be focused on bathrooms. Gloucester County School Board v. Gavin Grimm. He now identifies as male. School Board forbade use of the boy s bathroom relying on gender of birth. 25 Obama Administration allowed use of boy s restroom under its interpretation and issuance of Department of Education guidance. Trump Administration withdrew the guidance. Supreme Court remanded case back to the Fourth Circuit (Virginia) for consideration very recently

14 Federal v. State Reactions Vary: As a practical matter, be careful if not hiring or if firing an employee who may claim the cause was status as a transgendered person or sexual orientation/preference. EEOC is considering transgender as well as sexual orientation/preference as a protected class. Threshold: 15 employees. protections_lgbt_workers.cfm 27 Reactions continued: PHRC has not yet resolved the issue. Wolf Administration in Pennsylvania has been pushing legislation to cover sexual orientation/preference under PHRA. Other states and localities: Significant protections exist in 14 states plus the District of Columbia (mainly NE and West Coast, Minnesota, Colorado and Illinois)

16 Kathy Speaker MacNett, Esquire SkarlatosZonarich LLC 17 South Second St., 6th Floor Harrisburg, PA (717) Send Kathy an to sign up for our Alerts! 31 16

A Legal Update on Private Duty with Bill Dombi and Angelo Spinola. April 12, Agenda

A Legal Update on Private Duty with Bill Dombi and Angelo Spinola April 12, 2018 Agenda Welcome What is PDHCA and what do we do? Overview of series Bill Dombi: Companionship survey and changes in Medicare