Feds Have Been Busy in May

Feds Have Been Busy in May 

Let’s just say that the Federal Government has been very busy this month!  With new regulations to the FLSA’s Overtime Rule, Defend Trade Secrets Act, OSHA Filing Rule, EEOC’s various discrimination issues and possible ACA action–the Feds have been busy in May.  Here is an overview of the New Regulations and Information regarding the new additions in May 2016.

I. Overtime Regulations

  The Department of Labor has finally released the new overtime regulations. 

  • New salary level will be $47,476.  This is less than the salary level DOL previously proposed–$50,440.  It will be tied to the 40th percentile of the lowest Census region (currently the South).
  • New salary level for highly compensated employees will be $134,004.  This is consistent with the proposal, though the number is higher than previously identified ($122,148) because the level is tied to salary levels of full time salaried workers nationwide and that has increased since the proposed rule was issued in July 2015.
  • Employers will have until December 1, 2016 to comply.
  • Updates to the salary level will occur every three years, the first update to occur January 1, 2020. DOL will give 150 days’ notice prior to change-August 1, 2019.  DOL estimates the first update will result in the salary level being set at $51,168.
  • Employers will be permitted to use commissions and non-discretionary bonuses (up to 10%) to satisfy the new salary level, paid quarterly, and subject to a “catch up.”
  • No changes to the duties test.  DOL sought comments regarding whether the apply a requirement that exempt employees spend more than 50% of their time performing exempt work, as in California.   

II.  Defend Trade Secrets Act

Congress passed the Defend Trade Secrets Act.  For the first time, companies will have a federal private right of action to prevent or remedy theft of trade secrets. The DTSA provides allows for seizure orders and nationwide uniformity. Everyone should consider reviewing their non-compete and confidentiality agreements for needed revisions so that you can take advantage of the benefits of the DTSA. 

III.  Occupational Safety and Health Administration

OSHA finalized its electronic recordkeeping rule. The final rule requires electronic submission of Part 1904 recordkeeping records to OSHA depending on the employer’s size and industry:

  • Employers with 250 or more employees (including part-time, seasonal or temporary workers) in each establishment to electronically submit their 300, 300A and 301 forms to OSHA on an annual basis;
  • Employers with more than 20 but less than 250 employees in certain identified industries to electronically submit their 300A form on an annual basis; and
  • Employers who receive notification from OSHA to electronically submit their 300, 300A and 301 forms to OSHA.

Significantly, the final rule prohibits employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.  OSHA states that drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.  You must review existing drug testing policies for needed revisions.

IV. Equal Employment Opportunity Commission

The EEOC announced new procedures for position statements being submitted in response to a discrimination charge.  Under the new procedures, 

  • Charging parties will have the ability to review position statements after they are filed;
  • Respondents must identify and maintain confidential information provided as part of position statements;
  • Respondents must provide support for any requested extensions of time to submit position statements; and
  • Position statements must be “clear, concise, complete and responsive,” and, “at a minimum,” should “include specific, factual responses to every allegation of the charge, as well as any other facts” and documentary evidence that the employer deems relevant for consideration.”

Additionally, the EEOC finalized the wellness rules for compliance under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. Under the new rules, the ADA allows employers to make disability-related inquiries (for example, by asking employees to complete a health risk assessment) and require medical examinations that are part of a voluntary employee health program. The final rule retains the requirement in the proposed rule that an employee health program — including any disability-related inquiries or medical examinations that are part of such a program — must be “reasonably designed to promote health or prevent disease.” To meet this standard, a program cannot require an overly burdensome amount of time for participation, involve unreasonably intrusive procedures, be a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or require employees to incur significant costs for medical examinations.

As for GINA, a wellness program must be reasonably designed to promote health or prevent disease. This means that the service must have a reasonable chance of improving the health of, or preventing disease in, participating individuals. It also means that an employer-sponsored wellness program must not be overly burdensome to employees, a subterfuge for violating Title II of GINA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. 

A wellness program is not reasonably designed to promote health or prevent disease if it exists merely to shift costs from an employer to employees based on their health; is used by the employer only to predict its future health costs; or imposes unreasonably intrusive procedures, an overly burdensome amount of time for participation, or significant costs related to medical exams on employees. A wellness program will also not be considered reasonably designed to promote health or prevent disease if it consists of a measurement, test, screening, or collection of health-related information and that information is not used either to provide results, follow-up information, or advice to individual participants or to design a program that addresses at least some conditions identified (e.g., a program to help employees manage their diabetes if aggregate information from health risk assessments shows that a significant number of employees in an employer’s workforce have diabetes). 

Finally, the EEOC issued a new fact sheet focusing on bathroom access and reminds employers that discrimination based on transgender status is sex discrimination in violation of Title VII of the Civil Rights Act, and contrary state law (such as Mississippi’s HB 1523) is not a defense to transgender claims filed under Title VII. 

V. Affordable Care Act

The Supreme Court reviewed the question of whether the Affordable Care Act’s mandated contraceptive coverage could withstand a religious challenge from religiously affiliated non-profit groups.  It sent the case back to the courts for the parties “to work out a compromise.”  The Feds Have Been Busy in May 


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