New FMLA poster issued by DOL: But do you have to use it?

The DOL just issued a new General FMLA Notice for employers to hang in their workplaces. 

The notice can be found here.

Now on to the big question: Do employers have to use it?

The answer: Employers covered by the FMLA must hang the new poster or stick with a pre-existing poster that outlines the same info.

In other words, you’re not required to swap out your current poster for the new one. But there are some reasons you may want to.

For starters, the new poster is organized in a much more reader-friendly way than the DOL’s last poster.

So if you’re not a fan of your current poster’s layout, this may be a more attractive option.

The requirements

Just to be safe, let’s recap the DOL’s regulations regarding the poster.

Employers covered by the FMLA must display in a conspicuous place — and keep displaying — a General FMLA Notice explaining the law’s protections and requirements, as well as how employees can file complaints of violations of the FMLA with the DOL’s Wage and Hour Division.

The notice — i.e., poster — must be:

  • prominently displayed where it can be easily seen by employees and job applicants
  • displayed even if no employees are FMLA eligible, and
  • provided to each employee. This can be done via an employee handbook distributed to all employees, guidance distributed to employees explaining benefits or leave rights, or a general notice to all new employees upon hire.

Electronic posting is permitted as long as it meets all the posting requirements otherwise.

If a significant portion of workers are not English-literate, the employer must provide the notice in a language in which those employees are literate.

Violations of the regulations can result in a civil penalty of up to $110 per offense.

New FMLA guidance

In conjunction with the new General FMLA Notice poster, the DOL also issued a brand new 76-page guide on administering the FMLA.

While the guide doesn’t impose any new requirements on employers, the guide’s purpose — much like the new poster — is to explain things in a more reader-friendly manner. It’s intended for employers.

Some of the highlights:

  • It includes flowcharts outlining the course of a typical leave request from beginning to end.
  • There’s a “Did You Know?” section that outlines some of the law’s lesser-known provisions.
  • Charts are included to help explain the medical certification process — i.e. What’s required.
  • It includes an overview of Military Family Leave.

You can grab the guide here.

DOL’s final overtime rule moves forward: What’s next?

Get ready: The DOL’s final rule revising the white-collar overtime exemption regulations has advanced. So employers now have a pretty good idea of when it’ll go into effect. 

The DOL just sent the final rule to the White House’s Office of Management and Budget (OMB). This is the final step before the rule is published and made public for all to see.

If the OMB follows its normal review timeline, it should be approved in four to six weeks (although, it could take months).

So if it sticks to its normal schedule — and there’s no reason to think it won’t — employers should be able to get eyes on the final rule by early- to mid-May.

Avoid Congressional roadblocks

The fact that the rule is already in the OMB’s hands means it’s most likely to avoid an entanglement with the Congressional Review Act. In fact, the act may very well be the reason the rule was submitted for review much earlier than originally anticipated.

In a nutshell, the act allows Congress to disapprove “major” final rules promulgated by federal agencies — like the DOL. But the disapproval can be shot down by a presidential veto — meaning the FLSA changes were highly unlikely to be challenged during President Obama’s tenure.

However, the act states that if a major rule is is submitted to Congress with fewer than 60 session days remaining on the legislative calendar, then the next Congress will have a similar 60-day period to consider the rule. And according to recent calculations by the Congressional Research Service, if the DOL’s overtime rule isn’t released by the OMB by May 16, the rule will be at the mercy of the next Congress and president.

Bottom line: The best chance the Obama administration — and the current DOL regime — have of making the FLSA-altering overtime rule stick was to get it on the books before May 16, a deadline they’re now well on their way to beating.

When will it take effect?

Despite some back-and-forth about when it was going to submit the rule to the OMB, the DOL has remained steadfast about one thing: The rules were likely to take effect 60 days after being published, and that still appears to be the plan.

As a result, employers can expect to have to be in compliance with the rule this summer — most likely by the end of July (but possibly sooner).

Still, there’s no way to know exactly what’s in the rule until it is approved by the OMB. But chances are the rule won’t be too far off from what employers saw in the proposed rule.

Here’s a rundown of what was proposed:

  • Drastically increasing the FLSA’s salary threshold. As you know, the current minimum salary a worker has to be paid to be exempt from overtime is $455 per week or $23,660 per year. Well, under the proposed rule, it would jump to $970 a week or $50,440 per year. The DOL calculated that $50,440 would equal the 40% percentile of weekly earnings for full-time salaried workers.
  • The highly compensated employee threshold will also climb. The total annual compensation requirement needed to exempt highly compensated employees would climb to $122,148 from 100,000 — or the 90th percentile of salaried workers’ weekly earnings.
  • The salary thresholds will automatically increase. For the first time ever, the salary thresholds would be tied to an automatic-escalator. The DOL is proposed using one of two different methodologies to do this — either keeping the levels chained to the 40th and 90th percentiles of earnings, or adjusting the amounts based on changes in inflation by tying them to the Consumer Price Index.
  • No changes to the duties tests have been proposed. The DOL didn’t suggest changing the executive, administrative, professional, computer or outside sales duties tests as of yet. However, the agency sought comments on whether they should be changed and whether they’re working to screen out employees who are not bona fide white-collar exempt employees. Early indicators were that the DOL would look to adopt a California-style rule in which employees would be required to spend more than 50% of their time performing exempt duties to be classified as exempt.
  • Discretionary bonuses wouldn’t count toward salary threshold. In the proposed rule, discretionary weren’t part of a person’s salary calculation — but that could change depending on the comments the agency received. Currently, such bonuses are only included in calculating total compensation under the highly compensated employee test. But the DOL said some stakeholders are asking for broader inclusion of bonuses in salary calculations.

The DOL received more than 250,000 comments on the proposed rule.

Stay tuned. HR Morning will have a full breakdown of the final rule once it’s published — along with rundown of what you’ll need to do to get in compliance.

Favoring one minority over another will still get you sued for discrimination

A Texas company will pay over $1 million to learn a lesson in the dynamics of hiring discrimination: You can’t avoid a bias lawsuit from one minority group by favoring another.  

Lawler Foods, Inc. and Lawler Foods, Ltd.  will pay $1,042,000 as part of the settlement of a class race and national origin discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission.

The EEOC claimed that Lawler, a baked goods company, discriminated against three applicants and a class of African-American and non-Hispanic applicants by failing to hire them into entry-level jobs at Lawler’s Humble, TX-area facility because of their race.

In its lawsuit, EEOC alleged that Lawler had violated Title VII by intentionally failing to hire black and other non-Hispanic applicants for jobs — and by using hiring practices, including word-of-mouth recruiting and advertising a Spanish-language preference that had an adverse disparate impact on black and other non-Hispanic applicants.

The EEOC filed the lawsuit in December, 2014 in U.S. District Court for the Southern District of Texas after first attempting to reach a pre-litigation settlement.

In addition to the monetary claims fund, the four-year consent decree resolving the lawsuit requires Lawler to:

  • seek to recruit and hire black and other non-Hispanic job applicants for its production jobs;
  • conduct an extensive self-assessment of its hiring to ensure non-discrimination and compliance with the terms of the consent decree;
  • conduct employee training to further its non-discrimination commitment; and
  • designate an internal leader to prioritize compliance with the requirements of the consent decree.

The case is the latest example of the EEOC following a priority identified in its Strategic Enforcement Plan: eliminating barriers in recruitment and hiring, particularly class-based intentional recruitment and hiring practices that discriminate against disabilities. The case was handled by EEOC’s Houston District Office, which oversees Southeast Texas, and the New Orleans Field Office, which covers the State of Louisiana.