HR Legal Updates

Special thanks this month to Audrey E. Mross, Labor and Employment Attorney for Munck Carter, LLP, for this month’s legal update. Mross provides free legal updates to her email group. To be added, contact her at [email protected].

School’s out, but your education never ends:

Speak Now or Forever Hold Your Peace

As mentioned in the last LB4HR, the U.S. Department of Labor (DOL) wants to know what you think about raising the minimum salary necessary to maintain certain white collar exemptions under the FLSA.  The existing number is $23,600/year.  The proposed number, which was nixed via injunction late last year, was $47,476.  DOL’s Secretary Acosta mused that a good number was “somewhere around $33,000.”  You have until September 25 to share your informed opinion on this matter.  See the RFI posted at

Never Mind, Part Two

Effective September 18, there is yet another new Form I-9 for you to add to your on-boarding process.  No huge changes here, but continued use of the old firm is not an option.  USCIS has also updated the very useful employer guidance on Form I-9, so be sure and check out the new M-274 at

EEO-1 Update

The good news is that your Standard Form 100 (aka EEO-1 Report) is not due next month.  The EEOC revised the form to include pay data and shifted the due date to March 31, 2018, to give us all time to gather our wits and our W-2 data.  See There is more good news in that both Congress and business interests have pushed to rescind the pay-gathering exercise.  It also doesn’t hurt that the Acting Chair of the EEOC, Victoria Lipnic, is on the record as being opposed to the wage analysis piece.  She asked the recently confirmed chair of OMB’s  Office of Information and Regulatory Affairs, Neomi Rao, to decide if the wage data portion will go forward or be scrapped, by the end of August, so that employers can prepare their HRIS for the task, if necessary.  How about that . . . no bad news!

NLRB Movement

Chairman Philip Miscimarra announced he will step down at the end of his five-year term, in December, and not seek reappointment.  The four-year term for the current General Counsel, Richard Griffin, ends in November.  The reported favorite for his replacement is Peter Robb, a management-side attorney who was an NLRB field attorney and worked as chief counsel to board member Robert Hunter, a Republican.

Fluctuating Workweek . . . Not!

Some employers rely on the FLSA’s “fluctuating workweek” method to pay nonexempt workers a salary while limiting costs tied to overtime wages.  A 1998 4th Circuit decision upheld use of that approach for EMTs who alternated between 24 and 72-hour workweeks.  More recently, a district court agreed with that approach for nuclear power plant shift supervisors who alternated between 36 and 48-hour workweeks. However, on appeal the 5th Circuit said “not so fast” and opined that a bi-weekly alternating, but fixed, schedule is not necessarily a fluctuating schedule as is necessary to use the FLSA’s fluctuating workweek method. Hills v. Entergy Operations, Inc. (5th Cir. 8-17).  This method has limited appeal, due to the onerous requirements tied to its use, and it just got trickier.

Millennial Benefit

Pain-producing amounts of student debt among our young folks have some employers offering a new employee benefit of student loan repayment.  Congress took notice and several bills are in the works, to offer those kindly employers a tax break.  One example is the Student Loan Repayment Act (H.R. 615) which, if passed, would allow employers to claim a work opportunity tax credit for “eligible students” and would provide a three-year tax credit equal to 50% of the start-up costs to create a student loan repayment program.

Fiduciary Rule Being Braked (Again)

On July 6, the DOL filed a Request for Information asking if affected parties needed more time to prepare for three fiduciary rule prohibited transaction exemptions slated to take effect on Jan. 1, 2018. The DOL then notified the District Court of MN (regarding the Thrivent v. Acosta litigation) that it submitted proposed amendments to the rule which would push that effective date out to July 1, 2019 and extend the transition relief to that date, too. The transition relief is explained in Field Assistance Bulletin No. 2017-2.  It says that during the transition period between June 9, 2017 and January 1, 2018, the agency would not pursue claims against fiduciaries who are making good faith efforts to comply with the law.  Depending on the response to the RFI, additional changes to the rule, beyond the extended effective date, are entirely possible.  Stay tuned!

Giving Pot Use a Pass

Per the National Conference of State Legislatures, 29 states plus D.C., Guam and Puerto Rico, allow use of medical marijuana.  These laws, coupled with passage of state laws decriminalizing recreational pot use, have employers wondering how far they can go in banning such use or the effects of recent use in their workplaces.  The earliest court cases tilted in favor of employers being allowed to continue their “no drugs” rules, finding no recourse for job applicants and employees who tested positive.  The tide is shifting, however, with a handful of states telling employers they cannot discriminate against lawful users, even when they test positive.  Those states include AZ, CT, DE, IL, ME, NV, NY, MN and RI.  On August 8, a CT U.S. District Court judge found in favor of a job candidate whose offer of employment was rescinded based on a positive test for marijuana.  The prospective employee used medical marijuana at night to treat her PTSD and produced evidence that she would not be “under the influence” during work hours. Her prospective employer, a nursing home, defended its actions by citing to a host of federal laws, including the Controlled Substances Act (which makes it a crime to use, possess, or distribute marijuana), the Americans With Disabilities Act (which excludes illegal drug use from its protections) and the Food, Drug and Cosmetic Act. The court pointed out that none of these laws make it illegal to employ a marijuana user.  It’s “federal contractor” defense also fell flat.  Noffsinger v. SSC Niantic Operating Company, LLC (D. Conn. 8-17).  In July, the Supreme Judicial Court of Massachusetts ruled that employers may be required to accommodate medical marijuana use by modifying their drug testing policies. This case was filed when a marketing rep was fired after one day on the job, due to a positive drug test.  She had warned her prospective employer that she would test positive since she used medical marijuana two or three evenings per week for her gastrointestinal disorder.  Barbuto v. Advantage Sales & Marketing, LLC (Mass. 7-17). In some states, employers’ ability to eliminate their employees’ off duty, state-sanctioned use of pot may be going up in smoke. This is a trend worth watching.

Waive On

A panel of the 5th Circuit found that a mandatory class or collective action waiver did not affect a “substantive right” of employees under section 7 of the NLRA. LogistiCare Solutions v. NLRB (5th Cir. 8-17).  With that, the court refused to enforce the NLRB’s order that the employer cease and desist use of the waiver with its new hires.


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