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Federal DOL Proposes Changes/Clarifications to the Definition of "Regular Rate" under the FLSA

Tuesday, June 11, 2019

The determination of the regular rate of pay for employees who are non-exempt under the Fair Labor Standards Act (“FLSA”) and, therefore, eligible for time-and-one-half overtime pay for all hours worked over forty (40) in a week is a crucial and sometimes complicated one for employers under current law.

Employee Paid Time Off to Vote Law Changes in New York

Monday, May 06, 2019

As part of the New York fiscal year 2020 budget announced April 1, 2019, Election Law Section 3-110 was immediately amended to allow workers to take up to three hours off of work, without loss of pay, in order to vote in any election.  In a significant change from the prior law, the employee need not establish insufficient time to vote during off hours in order to take advantage of voting leave (previously, most employees were not able to show insufficient off hour time). However, nothing in the law entitles employees to more time than needed to vote.

Supreme Court to Review LGBTQ Discrimination

Monday, April 29, 2019

Last week the Supreme Court accepted three cases that ask whether federal anti-discrimination laws protect LGBT people from job discrimination.  There is disagreement in lower Federal Courts regarding whether sexual orientation and gender identity are included in Title VII’s prohibition of discrimination based on race, color, religion, sex and national origin. 

EEOC Discrimination Charges Fall

Tuesday, April 16, 2019

In 2018, fewer discrimination charges were filed with the Equal Employment Opportunity Commission than in any other year in the last decade. In fact, 8,000 fewer charges were filed last year than in 2017. This may seem surprising, given the #MeToo movement, but there are a myriad of reasons why the numbers may be falling.

New York Draws Closer to Legalizing Marijuana: How Employers Should Prepare

Thursday, April 04, 2019

The trend to legalize marijuana continues.  Governor Andrew Cuomo recently announced his intention for New York to be one of the next states to legalize marijuana.  While his initial timeline has met some resistance and will not coincide with the State’s annual budget, which was due April 1, it appears New York could legalize recreational marijuana in the very near future.  Governor Cuomo’s proposed legislation – Cannabis Regulation and Taxation Act - would create an office of Cannabis Management to oversee cultivation, processing, distribution, sale and adult use of marijuana for recreational purposes. 

United States Department of Labor Issues New Opinion Letters - Part 3

Monday, March 25, 2019

The third opinion letter issued by the US Department of Labor on March 14 addressed a New York law that contradicted federal overtime laws. The opinion addresses employees who work for a New York real estate company as live-in janitors (“supers”) to maintain their rental buildings.  New York law exempts these workers from minimum wage and overtime law, while the Fair Labor Standards Act does not. The DOL said these workers are not exempt from federal minimum wage and overtime requirements because the federal law does not contain those exemptions. 

United States Department of Labor Issues New Opinion Letters - Part 2

Wednesday, March 20, 2019

Another notable opinion from the U.S. Department of Labor letters issued on March 14 is that workers are not required to be paid for community service they perform through an employer program unless they are forced into volunteering. An employer submitted a question to the DOL asking if it had to compensate employees who are allowed to pick their own or employer sponsored volunteer activities.  The employer pays them for activities that occur during the work day or on the employer’s premises, but much of the volunteer time falls outside of working hours. 

United States Department of Labor Issues New Opinion Letters - Part 1

Friday, March 15, 2019

Yesterday, the U.S. Department of Labor (DOL) issued three opinion letters. This is the first of a series of blog posts addressing the letters.

Notably, the DOL clarified that employers cannot allow employees to take paid leave in lieu of FMLA leave.  As you know, the FMLA allows workers to take up to 12 weeks of unpaid time off to care for family members or receive treatment for their own illnesses.

That Free Lunch May be Taxable

Wednesday, March 06, 2019

The IRS recently released Technical Advice Memorandum 201903017 (the TAM) providing guidance to IRS personnel as to whether the value of meals and snacks provided without charge by an employer to its employees constitutes taxable wages. 

The employer in the TAM provided free meals to all employees, contractors and guests.  No distinction was made as to the employee’s position, job duties, responsibilities or other circumstances.  Unlimited drinks and snacks were also provided to all employees, contractors and visitors in unrestricted snack areas. 

BREAKING NEWS: NYS DOL Not Implementing Call-In Pay Regulations

Thursday, February 28, 2019

Good news!  Last night, the New York State Department of Labor issued a statement that it would not pursue implementing the proposed call-in pay regulations we wrote about previously (click here for that blog post). This issue is likely headed to the New York State Legislature.

Governmental Affairs
18

YOUR ASSISTANCE IS NEEDED!  The NLRB's imbalanced "quick election" rule is scheduled to take effect on April 30, 2012. The congressional resolution to nullify the rule may considered by the U.S. Senate this week!

Please e-mail your U.S. Senators and Representative and either:

  • thank them for co-sponsoring the Enzi/Gingrey Joint Resolution, or
  • encourage them to do so!

Former HR professional and SHRM member, Sen. Mike Enzi (R-WY), and Rep. Phil Gingrey (R-GA), have introduced Senate Joint Resolution 36 and House Joint Resolution 103 in the Senate and House, respectively. If adopted by Congress, these joint resolutions would nullify the National Labor Relations Board's (NLRB) new "quick election" rule, which will shorten the time employers have to respond to union petitions.

Please Take This Action:
Write your members of Congress using SHRM’s HRVoice program.  This advocacy campaign is automatically tied to your legislators' positions on each joint resolution.  The version of the message you see will be a "please support" communication or "thank you," based on the given legislator's current position at the time you send the message. Please write your legislators by following these steps:

1.    To write your member of the U.S. House, log onto the SHRM Advocacy Action Center by clicking HERE

2.    To write your member of the U.S. Senate, log onto the SHRM Advocacy Action Center by clicking HERE

3.    Personalize your message with your own story

4.    Include your home mailing address.


Issue

The NLRB's election case procedures rule, otherwise known as the "quick election" rule, was published on December 22, 2011. The rule intends to shorten the time employers have to respond to representation petitions to as few as 10 days. The quick election rule is scheduled to take effect on April 30, 2012.

Sen. Mike Enzi (R-WY), ranking member of the Senate Health, Education, Labor and Pensions (HELP) Committee, and Rep. Phil Gingrey (R-GA), introduced a joint resolution that, if passed, would nullify the NLRB's quick election rule.  The joint resolutions are based on the Congressional Review Act of 1996 (CRA), which allows the Senate and House to consider a joint resolution of disapproval that features the full force of law to stop a federal agency from implementing a rule or regulation.

Outlook

The joint resolution needs only a simple majority (51 votes) to pass the Senate, not the 60 votes it usually takes to defeat a Senate filibuster. If the resolution passes both the House and Senate and is not vetoed by President Obama, the quick election rule would be repealed.

SHRM Position

SHRM supports the Enzi/Gingrey joint resolution based on the belief that the quick election rule’s reduced timeframe is unnecessary. A recent NLRB annual report revealed that the median time from a representation petition to an election was 38 days in Fiscal Year 2011. This reasonable 38-day average period gives employees ample time to hear both the union and employer perspectives on collective bargaining prior to a representation election.

Should you have any questions regarding the Enzi/Gingrey joint resolution, please contact Michael Layman, SHRM's Government Relations Senior Associate, at michael.layman@shrm.org.

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