21 September 2023 • 4 minute read
Be Global: Employment law in 5 – focus on the US
5 developments to read for September in less than 5 minutes- The DOL’s proposed rule would increase minimum salary levels for overtime exemption
The Wage and Hour Division of the Department of Labor (DOL) announced its long-anticipated proposed rule increasing the minimum salary level for overtime exemption under the Fair Labor Standards Act from $684 per week ($35,568 per year) to $1,059 per week ($55,000 per year), which is expected to expand overtime protections to 3.4 million employees nationwide. Any final rule is likely to be challenged in court. Read more.
- The NLRB continues to change the law in favor of unions
Recent National Labor Relations Board (NLRB) decisions continue to significantly increase labor risk for unionized and non-unionized employers.
Under the NLRB’s decision in Cemex Construction Materials Pacific, LLC, employers who commit even a single unfair labor practice following a union’s demand for recognition may be ordered to bargain with the union. Employers are encouraged to proactively train managers and supervisors on compliance with the National Labor Relations Act and review all policies, handbooks, and other workplace rules to ensure that a potentially overbroad rule cannot be used as the basis for an unfair labor practice finding. Read more.
In Stericycle, Inc., the Board reverted to its previous employee-friendly standard for interpreting workplace rules, holding that, if an employee could “reasonably” interpret a work rule to restrict an employee’s rights under the NLRA, the rule will be deemed presumptively unlawful even if a non-coercive interpretation is also reasonable. Read more.
- New laws impacting terminations and reductions in force
In Puerto Rico, Proposed Senate Bill 1277 seeks to include various protections (eg, payment plans and180-day moratorium on home mortgage payments, rent payments, electric and water utility payments) for persons over the age of 60 who are laid off because of economic reasons attributable to their employer. Read more.
This summer, New York’s Department of Labor published updated regulations under the New York State Worker Adjustment and Retraining Notification Act. The updated regulations address the treatment of remote employees, differentiate between “temporary” and “permanent” layoffs, impose new requirements related to WARN notices, and clarify obligations for transfers as part of the sale of a business. As a reminder, New Jersey’s amended WARN Act, including new severance pay requirements, took effect in its entirety this spring.
- Illinois is the latest state to require pay transparency in job postings
Illinois became the latest state to enact a law requiring pay transparency in job postings (with bills in other US states and cities pending or awaiting signature). Illinois’ law will take effect in 2025 and require employers with 15 or more employees to disclose pay scales and benefits in job postings. It also requires employers to announce and post all promotion opportunities to current employees within 14 business days of posting the job externally.
Meanwhile, New York State’s law took effect on September 17, 2023, and the state labor department published proposed regulations that seek to clarify requirements under the new law.
See our Gender Pay Transparency guide for more information on laws around the world.
- Fifth Circuit jettisons “ultimate employment decision requirement” for Title VII discrimination claims
Expressly overruling its decades-long precedent that actionable adverse employment actions under Title VII are limited to “ultimate employment decisions,” the Fifth Circuit Court of Appeals recently held that a plaintiff plausibly alleges a disparate-treatment claim under Title VII if they plead discrimination in hiring, firing, compensation, or the “terms, conditions, or privileges” of their employment. The decision may lead to an increase in discrimination claims based on a broader array of employment actions not involving ultimate employment decisions. Read more.
