In a challenge to the Department of Labor’s (DOL) 2019 overtime rule, the U.S. Court of Appeals for the Fifth Circuit affirmed the DOL’s authority to use a salary threshold requirement to define the executive, administrative, and professional (EAP) exemptions under the Fair Labor Standards Act (FLSA). See Mayfield, et al. v. U.S. Department of Labor, et al., No. 23-50724 (5th Cir. Sept. 11, 2024). This decision is a victory for the DOL as it currently defends challenges to its 2024 overtime rule that raised the minimum salary thresholds for the EAP exemptions.Continue Reading Fifth Circuit upholds DOL’s 2019 salary threshold amid ongoing 2024 threshold challenges
Federal court challenges to DOL overtime rule yield mixed results while foretelling a merits ruling before end of year
On July 1, 2024, the first phase of the U.S. Department of Labor (DOL)’s updated overtime rule went into effect, raising the minimum salary threshold for employees who are classified as “exempt” under the white-collar exemptions to the Fair Labor Standards Act (FLSA). The rule is subject to legal challenges but, as detailed below, remains in effect for now (other than for the State of Texas as a government employer).
A full summary of the rule is available here. In short, as of July 1, 2024, employees must be paid $844 per week ($43,888 annualized) to satisfy the salary threshold for the executive, administrative and professional exemptions. To satisfy the highly compensated” exemption salary threshold, employees must be compensated at least $132,964 per year (and a minimum of $844 per week). Effective January 1, 2025, the minimum salary threshold is set to increase to $1,128 per week ($58,656 annualized) for the executive, administrative, and professional exemptions, and to $151,164 per year for the highly compensated employee exemption. From there, the rule provides for updates to the minimum salary threshold every three years, starting July 1, 2027.Continue Reading Federal court challenges to DOL overtime rule yield mixed results while foretelling a merits ruling before end of year
Senate Working Group and Biden administration guidance on the use of AI in the workplace
Shortly after the DOL’s release of guidance on the use of AI in the workplace, a bipartisan working group from the U.S. Senate and the Biden administration have released additional guidance regarding the use of AI in the workplace.
Bipartisan Senate AI Working Group’s “road map” for establishing federal AI policies
On May 15, 2024, the Bipartisan Senate AI Working Group released a “road map” for establishing federal AI policies. The road map is titled “Driving U.S. Innovation in Artificial Intelligence: A Roadmap for Artificial Intelligence Policy in the United States Senate,” and outlines the opportunities and risks involved with AI development and implementation. Most notably, the road map highlights key policy priorities for AI, such as: promoting AI innovation, investing in research and development for AI, establishing training programs for AI in the workplace, developing and clarifying AI laws and guidelines, addressing intellectual property and privacy issues raised by AI and creating related protections for those affected, and integrating AI into already-existing laws.
The working group acknowledged that the increased use of AI in the workplace poses the risk of “hurting labor and the workforce” but also emphasized that AI has great potential for positive application. This dichotomy necessitates the advancement of additional “innovation” that will create “ways to minimize those liabilities.”Continue Reading Senate Working Group and Biden administration guidance on the use of AI in the workplace
DOL’s guidance on use of AI in hiring and employment
On April 24, 2024, the U.S. Department of Labor (DOL) issued guidance on how employers should navigate the use of Artificial Intelligence (AI) in hiring and employment practices. The DOL emphasized that eliminating humans from the processes entirely could result in violation of federal employment laws. Although the guidance was addressed to federal contractors and is not binding, all private employers stand to benefit from pursuing compliance with the evolving expectations concerning use of AI in employment practices.
The guidance was issued by the DOL’s Office of Federal Contract Compliance Programs (OFCCP) in compliance with President Biden’s October 30, 2023 Executive Order 14110, which required the DOL to issue guidance for federal contractors on “nondiscrimination in hiring involving AI and other technology-based hiring systems.”
The guidance was issued in two parts: (1) FAQs regarding the use of AI in the Equal Employment Opportunity (EEO) context, and (2) a list of “Promising Practices” that serve as examples of best practices for mitigating the risks involved with implementing AI in employment practices. In short, the FAQs communicate that established non-discrimination principles apply to the use of AI, and the “Promising Practices” provide specific instruction on how to avoid violations when using AI in employment practices.Continue Reading DOL’s guidance on use of AI in hiring and employment
Texas federal court blocks enforcement of Pregnant Workers Fairness Act
On February 27, 2024, U.S. District Judge James Wesley Hendrix of the Northern District of Texas, Lubbock Division blocked enforcement of the Pregnant Workers Fairness Act (PWFA) against the state of Texas and its divisions and agencies, finding passage of the PWFA violated the U.S. Constitution’s quorum requirement. Below we discuss the terms of the PWFA, its enactment, and the subsequent legal challenge.Continue Reading Texas federal court blocks enforcement of Pregnant Workers Fairness Act
Government shutdown looming: How government agencies that enforce labor and employment laws could be impacted
Governmental entities play a vital role in upholding federal labor and employment regulations and would face significant disruption in the event of a government shutdown. In September, we provided a brief review on how a shutdown would affect the government agencies that enforce federal labor and employment laws — the U.S. Equal Employment Opportunity Commission
Supreme Court eases employees’ burden to establish SOX retaliation claims and possibly other whistleblower claims
On February 8, 2024, the U.S. Supreme Court issued Murray v. UBS Securities LLC, No. 22-660, which addressed the proper framework for establishing a whistleblower claim under the Sarbanes-Oxley Act of 2002 (SOX). Under SOX, an employee who works for a covered company is protected from retaliation if they disclose information that the employee reasonably believes shows a violation of federal securities law, SEC rules, or any federal law related to fraud against shareholders. In Murray, the Court held that an employee is not required to prove that their employer acted with animus when it engaged in an adverse action against the employee.
In Murray, a research strategist at a securities firm voiced concerns to his supervisor about leaders of the firm’s trading desk purportedly engaging in unethical and illegal efforts to skew his independent reporting on commercial mortgage-backed securities. Despite receiving a strong performance review, the employee was subsequently terminated, which the employer alleged was a result of reduction in force. The employee then filed a SOX complaint with the Department of Labor (DOL) and, after the 180-day waiting period passed without a final decision from the DOL, subsequently filed suit in federal district court.Continue Reading Supreme Court eases employees’ burden to establish SOX retaliation claims and possibly other whistleblower claims
SEC implements new level of scrutiny for employment agreements and separation agreements under whistleblower protection rule
In a series of press releases throughout September 2023, the Securities and Exchange Commission (SEC) announced enforcement orders against three separate companies for using employment agreements and separation agreements that violated the SEC’s whistleblower protection rule. The orders reflect the SEC’s increased scrutiny of employment agreements and separation agreements under the whistleblower protection rule.
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The potential shutdown will significantly impact government agencies that enforce labor and employment laws
Government agencies are integral to the enforcement of federal labor and employment laws and will be dramatically impacted by a government shutdown. Below is a synopsis of the impact on the main government agencies responsible for enforcing federal labor and employment laws—the U.S. Equal Employment Opportunity Commission (EEOC); the Department of Labor (DOL); and the
Real Time Video Chat: The nitty, gritty details of the OSHA ETS (Part 2)
Next up in the series, Reed Smith lawyers continue the discussion regarding the OSHA ETS that requires companies in the U.S. with 100 or more employees to implement either a mandatory vaccination policy or a policy that allows employees to choose between vaccination or COVID-19 testing. Specifically, the chat focuses on the current status of