Employment Law This Week®: DOL's RFI on Overtime Rule, NLRA Doesn't Preempt NYSHRL, SF's Salary History Law, Pregnant Workers Fairness Act

(1) DOL Issues RFI on FLSA Overtime Exemption Regulations

Our top story: The Department of Labor (DOL) may be moving to formally roll back the Obama-era overtime exemption regulations. Regulations that more than doubled the salary thresholds for most white-collar exemptions were supposed to go into effect in December 2016, but the DOL was enjoined from enforcing them. The DOL has now issued a Request for Information (RFI) seeking public comment on topics including the amount of the salary threshold, how it should be determined, and whether there should be any minimum salary requirement at all. Adriana Kosovych, from Epstein Becker Green, has more:

“Until the Fifth Circuit and perhaps the Supreme Court resolves whether the DOL has the authority to establish a salary level test as a condition of satisfying the white-collar exemptions, uncertainty will continue about the DOL's rulemaking authority. The focus of the DOL's questions appears to signal a positive turn of events, so far as employers are concerned, in that the DOL seeks input from the employers and employees who would be most affected by any change in the regulations governing the white-collar exemptions. After receiving public comment, the DOL will likely propose some changes to its white-collar exemption regulations. They could still include an increase to the salary level, but such increase would most probably not be as dramatic as the one initially proposed.”

Watch the extended interview here.

(2) Second Circuit: NLRA Does Not Preempt NYSHRL

The U.S. Court of Appeals for the Second Circuit finds that the National Labor Relations Act (NLRA) does not preempt the New York State Human Rights Law (NYSHRL) for discrimination claims filed against a union by its members. Members of a New York local accused the union of discriminatory activity in violation of the NYSHRL. The union sued for declaratory judgment, arguing that the state law was preempted by the NLRA's duty of fair representation. Reversing the lower court's ruling, the Second Circuit found that the duty of fair representation in the NLRA presents no conflict with the New York law and was not designed or intended to preempt state laws focused on combatting discrimination.

(3) San Francisco Bans Salary History Inquiries

San Francisco has joined New York City and Philadelphia and the states of Delaware, Massachusetts, and Oregon in passing legislation banning salary history inquiries. The San Francisco law will prohibit employers from asking applicants about current or past wages. The Parity in Pay Ordinance also bars employers from releasing salary information to a prospective employer without written consent. This legislation is based on the theory that relying on compensation history to determine starting pay contributes to gender wage inequities. The law will go into effect on July 1, 2018. A similar law is currently pending in the California Senate.

(4) Pregnant Workers Fairness Act Signed Into Law

Starting April 1, 2018, employers in Massachusetts must make reasonable accommodations for pregnant workers and workers with pregnancy-related conditions. The Pregnant Workers Fairness Act also protects these workers from related discrimination and retaliation. Massachusetts joins 21 other states and the District of Columbia in explicitly granting these protections.

(5) Tip of the Week

Jennifer Fournier, General Counsel and VP of the HR and Compliance Group at The Schuster Group, provides some advice on utilizing job descriptions to minimize risk and improve communication:

“Clear and concise communication written through the job description is a wonderful way for employers and employees to work together to understand exactly what the goals are for the position. When they're able to do that, you're going to find that your employees have greater productivity over time and increased job satisfaction, which will do nothing but benefit your organization. When we have a good job description on paper, we're able to look at that in a risk management way. We can refer back to that when we're dealing with discipline and other corrective actions that may need to occur along the way as someone is employed with you. And that can really help to minimize your litigation risks and, unfortunately, if you go to that place, have great documentation for your attorneys and legal team to move forward with whatever action might be out there.”