Houston is one of the few major cities in the country without a law prohibiting discrimination on the basis of sexual orientation. Neither federal nor Texas law includes such a protected category, however, other Texas cities such as Austin and Dallas have city ordinances with such protections.
This week, Houston Mayor Anise Parker proposed a city ordinance which would outlaw discrimination on the basis numerous protected categories, including race, sex, religion, age etc. The difference between the proposed ordinance and existing laws is that sexual orientation and gender identity are also included as protected classifications. For more background on the proposed ordinance, please see the write up from the Houston Chronicle.
This ordinance will be put to a vote by city council next month and would not apply to employers with less than 50 employees. It would apply to all private businesses, however, religious institutions would be exempt. If passed, there will be a lot of Houston employers who will need to update their employee handbook…
On April 8, President Obama issued two executive orders which will impact employers who do business with the federal government. First, the President made it unlawful for contractors to retaliate against employees who discuss their pay. Second, the President ordered the Department of Labor to issue new regulations requiring contractors to provide pay data (by gender) to the federal government. Cozen O’Connor’s Labor & Employment Alert on the development can be found here.
My take on the first order is that it is irrelevant, and largely a publicity stunt. The National Labor Relations Board has long taken the position that federal law protects from retaliation those employees who discuss their pay (both union and non-union). The second order, although only affecting contractors, is more significant because it illustrates the complete disconnect between what this Administration says and the reality in the workplace. Statistics are inherently misleading because employees in the same job may be paid different wages for any number of legitimate reasons, including experience, skill, work schedule, etc. Indeed, the latest statistics on the White House, hardly a bastion of male chauvinism, show women earn significantly less than their male counterparts. These types of statistics are virtually worthless and will only provide ammunition to plaintiffs’ lawyers looking to file lawsuits.
There is not a lot that Democrats and Republicans can agree on with respect to Obamacare, but on April 1, 2014 the President signed into law a Medicare bill which had a provision tucked inside that will bring some important changes to the small employer insurance market. The problem that needed fixing was that Obamacare originally capped deductibles to $2,000 for individuals and $4,000 for families. Any plan in the small group or individual market with higher deductibles would be illegal.
The Department of Health and Human Services issued a waiver for 2014, because a whopping 96% of the plans in the bronze tier (the lowest tier) exceeded those caps. This fix will do away with those caps permanently.
As a follow up to the previous blog post, my firm Cozen O’Connor has issued a Labor Alert on the recent news story involving the NLRB allowing college football players to unionize. The full alert can be found here.
Under the Obama administration, the National Labor Relations Board (NLRB) has taken some radical positions, but its newest decision makes clear that all bets are off in the second term. The Regional Director of the NLRB office in Chicago ruled this week that college football players at Northwestern University are actually “employees” under federal law, and therefore are entitled to form a union and bargain for employment terms (i.e. compensation.). An article from ESPN on the news story can be found here. First, it is important to not over-react to this decision. It will be appealed, and will likely be reversed once the case makes its way out of the NLRB and into the courts. In the meantime, it is reasonable to expect that other university athletes will file similar election petitions and seek to join the effort. There are a lot of college athletes and to unionize the entirety of college athletics would mean big money for organized labor. Simply, there is a financial incentive for organized labor bankrolling this fight all the way to the Supreme Court, if necessary.
For now, we can only wonder about what the world would look like if the Obama NLRB got its way. Can you imagine a player’s strike in the middle of the Final Four? If athletes are employees, does that mean they can be fired? If a coach yells at an athlete or sits them out of a game, can the athlete file a grievance? These questions sound far-fetched, but won’t be so silly if athletes really are employees protected under federal law.
With all of the recent news surrounding the President’s efforts to overhaul the nation’s overtime laws, it is more important than ever to ensure that your business is complying with all state and federal wage and hour laws. I will be speaking at a seminar in Houston entitled “Defending Against Wage and Hour Claims: Legal Strategies and Practical Compliance” on Friday, March 28, 2014. The full text of the invite and the seminar description can be found here. For visitors to the blog, please note that if you register one attendee from your organization, you can bring as many other attendees as you like. Just email me, including the other names of the attendees so we can add them to the registration list.
Cozen O’Connor has issued an alert regarding the recently announced plan to overhaul the overtime rules, including the salary exemption threshold. This is an important development that will affect all employers, and the full text can be found here.
This week, the Obama administration announced that it will revise the regulations governing the white collar overtime exemptions. The Department of Labor has not announced all of the changes it is looking to make, but one area up for review is going to be the minimum salary threshold for exempt status. Currently, that amount is $455 per week, which amounts to $23,660 annually. The last time the threshold was raised was in 2004 during the Bush administration, and the President has signaled that this amount is likely to be increased substantially under the new regulatory effort. A news article regarding the proposed changes can be found here.
Realistically, it will take months if not years for the Department of Labor to craft regulations and complete the required notice and comment periods before such sweeping changes could take place. That said, there is no meaningful legal argument that the administration does not have the authority to make this change as similar increases have been made through regulation in the past. The takeaway from this announcement is that change is coming to industries where entry level manager salaries are close to the exemption threshold (like restaurants, retail, and hospitality). This will mean higher costs for these industries as many of these management positions become converted to overtime eligible positions to avoid the sharp salary increases which will be required to maintain the exemption.
Virtually every settlement agreement in an employment case includes a strict confidentiality clause warning the plaintiff of the requirement to keep the settlement amount secret. In a recent case which made national news, a daughter cost her father an $80,000 settlement by posting “mama and Papa Snay won the case against Gulliver … Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT!” An article with more details on the story can be found here.
This case is a good reminder of the importance of drafting airtight confidentiality clauses in the era of social media and instant publication to the world. It is also important to note that the employer lost the first round of litigation on whether the daughter’s conduct violated the father’s settlement agreement, and this recent story relates to the appellate court’s decision to overturn the lower decision and void the settlement. Obviously, the employer spent a lot of money in legal fees to prove a point.
One of the hot issues under the Fair Labor Standards Act (FLSA) is whether employers should be required to pay employees for time spent waiting in security lines to access their job site. Employees argue that such time is required as part of their jobs, and thus should be paid. Employers argue that such time is not “work” and is not compensable. A case involving contract employees at one of Amazon.com’s warehouses in Nevada was accepted by the Supreme Court this week, setting up a significant decision which could impact wage and hour practices around the country.
In the Amazon case, workers alleged they had to spend nearly 30 unpaid minutes each day waiting in line to clear security checks before and after their shifts. The Ninth Circuit Court of Appeals ruled that the case could move forward, which set up a conflict with other court decisions. An article about the case can be found here. This case will have a significant impact on Texas, where many contractors at plants and refineries have faced similar lawsuits. A decision from the Supreme Court should be expected in the summer of this year.