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Overtime Rule Is Imminent, May Reduce Telecommuting Options

Posted on May 11, 2016 at 2:30 PM Comments comments (0)

The range of workplace changes brought on by the new overtime rule will be broad, including the possible demise of telecommuting at affected companies.


The new rule is expected to be finalized soon, say observers, and is likely to include an exempt salary threshold level of about $47,000—slightly less than the proposed rule’s $50,440. The result will be that many reclassified employees will have to change their working habits, which could particularly affect those who work from home, management attorneys say.


When an exempt employee telecommutes, the employer normally just needs to make sure the work gets done to its satisfaction, noted Paul DeCamp, an attorney with Jackson Lewis in Reston, Va. But for workers newly classified as nonexempt, thanks to the new rule, employers may not wish to shoulder the burden of monitoring and compensating for hours worked.


“Of particular concern for employers is the risk that employees will underreport hours worked and then later present claims for alleged off-the-clock work, likely at overtime rates,” he said. Processes for reporting time worked, such as software programs that monitor work activities, may help protect employers from claims that a supervisor knew a nonexempt employee was working unreported overtime. Nonetheless, the risk of such claims “may tip the balance for many employers against allowing telework” for reclassified workers, DeCamp said.


Precedent also is a key issue for companies trying to determine next steps regarding nonexempt telecommuters.


Employers will need to consider if they will allow some nonexempt employees to continue to work from home “because if they do, they can expect reclassified employees who lose the ability to telecommute to question why other nonexempts get to do it,” DeCamp added. “If the messaging is that the company needs to end telework in light of the reclassification, internal consistency, or at least well-thought-out reasons for any seeming inconsistency, will be critical.”


For example, an employer may permit a nonexempt worker with a disability to telecommute as a reasonable accommodation.


No Knee-Jerk Reaction Necessary?


Of course, some employers will be motivated to find solutions for their reclassified out-of-office staff.


“The final rule might lead to a slight decrease in telecommuting for exempt employees who are reclassified as nonexempt, especially for employees who work for employers who do not typically allow hourly employees to telecommute,” said Denise Drake, an attorney with Polsinelli in Kansas City, Mo.


She added, “I don’t think a knee-jerk reaction is necessary, however. The change from exempt to nonexempt does not require that an employer change its telecommuting arrangements. It does require a change in the employer’s policies, expectations and monitoring of the employee’s work.”


And it may require a change in a telecommuting employee’s work habits, she explained. “An employee who liked to work at varying hours of the day, whenever it suited his or her schedule, may need to be limited to certain core working hours,” Drake said. She noted that reclassified employees will need to carefully track and report all time worked.


Switching from telecommuting to working onsite is frequently easier said than done, observed Robert Boonin, an attorney with Dykema in Detroit and Ann Arbor, Mich., and immediate past chair of the Wage and Hour Defense Institute, a network of wage and hour lawyers.


“Some employees who have become accustomed to the arrangement, or were even hired pursuant to such an arrangement, may not live a reasonable daily commuting distance from the worksite,” Boonin said. “As a result, some phasing in of the conversion may be needed. If that’s done, the employee should have a clear understanding as to how work time is to be tracked, and if and when overtime may be worked.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

- See more at: https://www.shrm.org/legalissues/federalresources/pages/ot-telecommuting-reduction.aspx#sthash.QWnxaALs.dpuf


Anxiety over Transgender Women in Restrooms Persist

Posted on March 29, 2016 at 12:05 AM Comments comments (0)


The use of women’s restrooms by those transitioning from male to female remains tricky, and not just in North Carolina, where a new law prohibits localities from enacting nondiscrimination protections for lesbian, gay, bisexual and transgender (LGBT) individuals.


North Carolina’s General Assembly passed the law, which takes effect April 1, largely in response to a Charlotte, N.C., law that allowed transgender individuals to use restrooms that correspond with their consistent gender presentation.


“The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte,” North Carolina Republican Gov. Pat McCrory said. “The new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman’s bathroom, shower or locker room.”

- See more at: https://www.shrm.org/legalissues/stateandlocalresources/pages/north-carolina-transgender-lgbt.aspx?utm_source=Monday%20-%20HR%20Daily%20PublishThis%20Template%20(6)&utm_medium=email&utm_content=March%2028,%202016&MID=01139004&LN=Martin&spMailingID=25085748&spUserID=ODM1OTI1OTE3NzYS1&spJobID=764413536&spReportId=NzY0NDEzNTM2S0#sthash.02wmx4lK.dpuf

Bill to Block Overtime Rule Introduced

Posted on March 18, 2016 at 1:25 PM


As the Department of Labor’s (DOL’s) overtime rule hurtles toward finalization, advancing to the Office of Management and Budget (OMB) March 14, House and Senate Republicans stepped in and introduced legislation March 17 calling for the rule to be stopped in its tracks.


“This mandate on employers will hurt the lowest paid American workers the most, by reducing their opportunities for a promotion or a better job and making it all but impossible for workers to negotiate flexible schedules,” said Senate Health, Education, Labor and Pensions Chairman Lamar Alexander, R-Tenn., when introducing the bill. Alexander said small independent colleges in Tennessee estimate the rule would cost each of their schools a minimum of $1.3 million—“a giant figure that may cost the colleges’ students in tuition hikes and cost employees in job cuts.”


As proposed, the rule recommended setting the salary threshold for exempt employees at $50,440 annually, up 113 percent from the current $23,660 annually. It also called for annual automatic increases to the salary threshold and suggested that the duties tests might be made more stringent, requiring managers to spend at least half of their time on managerial functions.

- See more at: https://www.shrm.org/legalissues/federalresources/pages/overtime-rule-bill-introduced.aspx#sthash.o0criUwe.dpuf