Parker and Conway conveyed participants on a whirlwind tour of current and soon-to-be-enacted employment law. Here are a few of their key points, as well as sources of further information. Note that this is not a comprehensive summary of the law, and legal counsel should be consulted for specific questions on how these topics apply to each employer.
New FLSA regulations and exempt/non-exempt issues
- Remember: Exemption is the exception, not the rule; and proving that an employee is exempt is the employer’s burden.
- Best Practices: Review job descriptions and FLSA classifications at least annually; then communicate changes to employee classification and pay in writing.
- New overtime requirements were set to take effect December 1, 2016. However, in a surprise November 22, 2016, ruling, the Eastern District of Texas issued a nationwide injunction, blocking the DOL’s new rule from taking effect.
- Despite the injunction, to be treated as exempt, employees still must meet the FLSA’s salary-basis and duties tests.
Federal Court Enjoins DOL Overtime Rule
DOL Issues Final Overtime Rule
The Department of Labor’s New Overtime Rule—Are You Ready?
Employees vs. independent contractors
- The U.S. Dept. of Labor has signed agreements with states (35 at last count) to share information about misclassification.
- Analysis of whether a worker is an employee or independent contractor is very fact-specific and considers numerous criteria.
- Best Practice: Independent contractors have a written agreement with you that specifies the many ways they (not you) are in control of their business, e.g., can hire own helpers, no set hours, use own equipment, paid by the project (not hourly).
- Common Pitfalls: Independent contractors have company business cards or telephone numbers, use company equipment, enter into contracts on behalf of the company, or perform the same duties performed by employees.
- Three Types: Non-competition, non-solicitation (of customers or employees), and confidentiality/non-disclosure (most broadly used).
- Minnesota courts “disfavor” restrictive covenants like non-competes, but they are enforceable when they’re narrowly tailored and protect legitimate interests like confidential information and customer goodwill.
- Best Practices: Get a signed agreement prior to the start of employment. With current employees, provide a significant consideration (e.g., a bonus, raise or stock options) for signing the agreement.
Equal pay issues
- Equal Pay Requirement: Must provide equal pay “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”
- New Initiative: Equal pay workforce audits courtesy of the MN Dept. of Human Rights.
- Best Practices: Create written policies that explain how pay is determined; train those who decide pay on the legitimate factors that can affect pay; document decisions regarding pay for each employee.
EEOC fact sheets define “skill,” “effort,” “responsibility,” and other terms
Frequently asked questions of the Office of Federal Contract Compliance Programs (OFCCP)
Sick leave mandates
- New Minneapolis and St. Paul sick leave mandates cover all employees who work at least 80 hours per year within each city’s limits—which means some employees will be covered by both laws.
- Most employers will be required to provide paid leave; small or new employers may only be required to provide unpaid leave.
- Leave can be used not only for illness of employee or family member but also to care for a family member due to an unexpected closure of school or place of care.
St. Paul Joins Minneapolis in Passing Paid-Sick Ordinance
Remote work policies
- Working remotely is an enduring trend that needs to be managed thoughtfully.
- Special Considerations: ensuring security of confidential information; paying appropriately for time that can’t be monitored as easily.
- Best Practice: written agreement specifying expectations for hours available remotely and in the office as well as compliance with company policies.