Workplace Wise - Iowa Employment Law Attorneys

Tuesday, September 24, 2019

DOL's New Overtime Rule Released, Updating Earnings Thresholds

By Megan Erickson Moritz

Today, the U.S. Department of Labor released its final rule, updating earnings requirements for exempt treatment under the Executive, Administrative, and Professional (or "EAP") exemptions of the Fair Labor Standards Act ("FLSA").

Under the final rule:
  • The salary level requirement under the EAP exemptions will rise from $455 a week (or $23,660 annually), to $684 (or $35,568 annually). 
  • The total annual compensation for certain "highly compensated employees" also goes up, from $100,000 to $107,432 annually.  
  • Employers will be allowed to use certain non-discretionary bonuses, commissions, and incentive payments that are paid at least annually to satisfy up to 10 percent of the salary level requirement.
  • Certain special salary levels for workers in U.S. territories and in the motion picture industry are also being updated.
The final rule goes into effect on January 1, 2020. The DOL estimates that an additional 1.2 million workers will become eligible for minimum wage and overtime under the FLSA as a result of the changes under the new rule.

If you have questions about how the new rule may impact your business, please contact Megan Erickson Moritz or any of our Employment & Labor Law Practice Group members for more information.

Wednesday, August 28, 2019

I-9 Checkup: Everything Old is New... for Now

By Elizabeth Coonan

United States Citizenship and Immigration Services (USCIS) announced this week that until further notice, employers should continue using the Form I-9 currently bearing expiration date of 8/31/2019, even after the expiration date has passed.
The agency will provide updated information about the new version of the Form I-9 as it becomes available.
If you have questions about I-9 compliance or how your business should respond to an inspection notice, contact Elizabeth Coonan at coonan@brownwinick.com or the BrownWinick attorney with whom you work.

Friday, August 16, 2019

DEFINING HARASSMENT IN A NEW YORK STATE OF MIND

By Ann Holden Kendell

On August 12, 2019, the state of New York officially expanded its protections on unlawful harassment in the workplace. Some of the key changes include the following:
  • Elimination of the “severe” or “pervasive” standard. Employees only have to establish that they were subjected to “inferior terms, conditions or privileges of employment” as a result of their membership in a protected class. (Applies to alleged harassment based on an employee's membership in any protected class - not just sexual harassment.) 
  • Elimination of the “Faragher-Ellerth” affirmative defense. An employee’s unreasonable failure to follow the employer’s reporting procedures may still be used as evidence, but it will no longer end an employee’s claim.
  • No nondisclosure obligations. Settlement agreements on claims of unlawful discrimination cannot contain nondisclosure provisions unless the employee expressly wants such a provision to be included. (Previously only applied to settlement of sexual harassment claims.)
  • Non-employees are protected, too. “Non-employees” such as contractors, subcontractors, consultants, vendors or other parties engaged in a contractual relationship with the employer are protected under the anti-discrimination laws, too. 
  • More time to file claims. The time to file claims of sexual harassment is increased from one year to three years. (Implemented August 12, 2020.)

Should Midwest employers care what is happening in the Big Apple?
Under current federal laws, unlawful harassment is “unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information … where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” See https://www.eeoc.gov/laws/types/harassment.cfm. In short, unlawful harassment is a type of discrimination in employment that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and/or the Americans with Disabilities Act of 1990, (ADA).

Since the #MeToo movement, states other than New York have also made changes expanding protections beyond those provided by federal laws (California covered non-employees such as independent contractors, unpaid interns, and volunteers; Massachusetts passed a domestic workers bill of rights including protections against sexual harassment). Some states have also enacted mandatory harassment training laws (California, Connecticut, Delaware, Maine, and New York). While the legal standard for proving unlawful harassment in Iowa has not changed in reaction to the #MeToo movement, there have been several large verdicts awarded by Iowa juries on unlawful harassment and retaliation claims in the past few years.

The Importance of Training
In June 2016, the Select Task Force for the U.S. Equal Employment Opportunity Commission (EEOC) issued a report on its Study of Harassment in the Workplace. See https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf. The report noted that employer harassment training has been ineffective over the last 30 years and needs to change. A summary of the proposed practices can be found here: https://www.eeoc.gov/eeoc/publications/promising-practices.cfm.

One of the recommendations includes workplace “civility training.” As described in the report, this type of training “does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally.” The report noted the following regarding the importance of this training:

According to researchers, incivility is often an antecedent to workplace harassment, as it creates a climate of “general derision and disrespect” in which harassing behaviors are tolerated. For example, in studies of attorneys and court employees, researchers found significant correlations between incivility and gender harassment. Researchers also have found that uncivil behaviors can often “spiral” into harassing behaviors.
In response, many employers and employment attorneys have responded accordingly, incorporating civility training into regular workplace trainings. This type of training can reduce the instances of harassment under the “severe” or “pervasive” standard, as well as under the newer expanded standards for unlawful harassment. In short, an ounce of (effective) prevention is worth a pound of cure.

Wednesday, July 17, 2019

EEO Pay Data Collection Update: It is Time to Comply

By Elizabeth Coonan, BrownWinick attorney, with assistance from BrownWinick 2019 Summer Associate, Mariah Kauder


In 2017, the federal government suspended collection of Component 2 data from employers subject to EEO-1 reporting requirements. Component 2 data includes employee hours worked and pay information categorized by job type, race, ethnicity, and sex.  Following a contentious legal battle in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.), the Equal Employment Opportunity Commission (EEOC) is requiring Component 2 data be submitted by September 30, 2019. This includes data from calendar years 2017 and 2018. 


The Component 2 reporting requirement applies to all private employers, including federal contractors, with at least 100 employees. In addition, companies affiliated through common ownership or centralized management with other entities that bring the total number of employees up to 100 or more are also required to participate. Federal contractors with at least 50 employees and a federal government contract of $50,000 or more continue to be required to complete Component 1 of the EEO-1 form. However, this distinction does not apply to Component 2 reporting. The EEOC requires that submissions come through either the Component 2 EEO-1 Online Filling System or as an electronically transmitted data file. The online filing system became available on July 15th. Instructions for submission can be found on the EEOC’s website.


According to the EEOC, the information is used to inform civil rights enforcement and track employment patterns. Certain advocates of the data collection exercise contend that it will enable the EEOC to better identify and correct pay discrimination, while others feel it is just another administrative burden. Either way, the time is now for employers to identify where this information is stored and begin collecting it in order to meet the September 30th reporting deadline.


If you have questions about any of the information discussed above, please contact Elizabeth Coonan or another of BrownWinick’s Employment and Labor attorneys.


Wednesday, May 8, 2019

EEO-1 Pay Data Collection for 2017 and 2018

By Elizabeth A. Coonan


 The Equal Employment Opportunity Commission (EEOC) announced that employers must report pay data for 2017 and 2018 by September 30, 2019.  Pay data must be collected and reported with respect to race, sex and ethnicity. While the details regarding how to upload the required data have not yet been released, employers with 100 or more employees or federal contractors and subcontractors with 50 or more employees and at least $50,000 in federal contracts should be taking steps to ensure they have this data available for analysis and submission no later than September 30, 2019.  There is pending litigation that may affect the September 30 deadline. Check back here for updates and contact me or the BrownWinick Employment Attorney with whom you work for additional information.

Tuesday, April 2, 2019

DOL Proposes Updates to “Regular Rate” Under FLSA

By Megan Erickson Moritz

On March 28, 2019, the U.S. Department of Labor (DOL) announced another proposed rule to update regulations under the Fair Labor Standards Act (FLSA). The proposed rule would amend 29 CFR part 778 to revise the “regular rate” requirements under section 7(e) of the FLSA, 29 U.S.C. § 207(e). 

Under the default rule for calculating required overtime premium, employers must pay 1.5 times the “regular rate” of pay for all hours worked beyond 40 in a workweek -- by dividing total hours worked by total pay for each workweek. Under the FLSA, an employee’s regular rate pretty much includes all pay an employee earns (unless specifically excluded under the statute) – which can include much more than just his or her base hourly rate. For example, most bonuses, commissions, incentive pay, shift premiums, and other benefits generally need to be included in the regular rate.  This often complicates overtime calculations (especially quarterly or annual bonuses, which can require after-the-fact calculation of additional overtime), and can dissuade employers from offering perks to non-exempt employees.  According to the DOL, the new “proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the proposal would better define the regular rate for today’s workplace practices.”

The good news for employers:  the DOL says it intends to “encourage employers to provide additional and more creative benefits without fear of costly litigation.” The proposed rule aims to clarify when unused paid leave, bona fide meal periods, “call back” pay, reimbursements, benefit plans, and other ancillary benefits may be excluded from the overtime calculation. Specifically, the DOL proposes that the regulations confirm that employers may exclude the following kinds of benefits from an employee’s regular rate:
  • Wellness programs, such as onsite specialist treatment, gym access and fitness classes, 
  •  Employee discounts on retail goods and services;
  • Payments for unused paid leave, including paid sick leave;
  •  Benefit plans, such as accident, unemployment, and legal services,
  • Tuition reimbursement or student debt repayment; and
  •  Certain reimbursed expenses.
Most bonuses will still need to be included in the overtime rate calculation.  However, the DOL’s proposed rule attempts to elaborate on the types of bonuses that are and are not discretionary (and therefore, excludable) -- hopefully offering a little more clarity for employers. 

The Notice of Proposed Rulemaking was published on March 29, 2019, and the agency is accepting public comments through May 28, 2019.

If you have any questions about the DOL's proposal, or other wage and hour questions, please contact Megan Moritz (moritz@brownwinick.com) or another member of the BrownWinick Employment Practice Group.

Thursday, March 7, 2019

CLIENT ALERT: DOL Proposes New $35,308 Salary Threshold For Overtime Exemption

By Megan Erickson Moritz

Today, the U.S. Department of Labor announced a Notice of Proposed Rulemaking, (again) proposing a hike to the salary threshold requirement under certain exemptions from the Fair Labor Standards Act (FLSA). In short, the DOL says the change "would make more than a million more American workers eligible for overtime."  The proposal seeks to establish a new salary requirement of $679 a week ($35,308 a year). The proposal does not call for automated adjustments to the salary level -- a question that had been hotly contested.

The DOL set the current salary threshold of $455 a week ($23,660 a year) in 2004.  More information about the proposed rule is available here.  Once the rule is published in the Federal Register, the public has 60 days to submit comments for consideration by the Agency.

If you have any questions about the DOL's proposal, or other wage and hour questions, please contact Megan Moritz (moritz@brownwinick.com) or another member of the BrownWinick Employment Practice Group.


Friday, February 1, 2019

New Health Plan Option Designed for Groups of Small Employers

By Cynthia Lande, Alice Helle, Ellen Hames



Throughout 2018, the U.S. Department of Labor took steps to make it easier for small businesses to offer competitive health and retirement benefits to their employees. Association Health Plans (AHPs) will provide an innovative option for small firms to band together for health and retirement plan offerings.
BrownWinick has been monitoring these changes and has worked closely with the Iowa Insurance Division and expert insurance professionals in the state as the final rules and offerings for these plans were being finalized and adopted.  We will continue to monitor developments and provide updates as information is available. In the meantime, feel free to read "What You Need to Know - Association Health Plans" and if you have any question, please contact BrownWinick attorneys - Cynthia Lande / lande@brownwinick.com, Alice Helle / helle@brownwinick.com, or Ellen Hames / hames@brownwinick.com.