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February 2017


保留継続 Exempt 最低賃金の変更

昨年12/1/16に予定されていたExemptの最低賃金変更は更に5/1/17までは保留されるとDepartment of Laborより発表されました。

Federal Overtime Rules Still on Hold – Response from DOL due May 1

Feb 24 2017 - Overtime - Gail Cecchettini Whaley

overtime rules may 1
California employers should continue to follow the California salary test until the fate of the federal overtime rules are determined.

The Department of Labor (DOL) was granted an extension until May 1, 2017, to form its position and file its briefs regarding the legitimacy of the new federal overtime rules.

The revised federal overtime rule was set to take effect on December 1, 2016. The rule would change the salary level that must be met before an executive, professional or administrative employee can be classified as exempt from overtime. Under the rule, the federal minimum salary test would increase to $913 per week ($47,476 annually for a full-time employee); an employee paid less than this threshold would be guaranteed overtime pay. This salary threshold is more than double the current federal test and is also higher than California’s minimum salary test.

However, states and business groups sued to halt the rule and, about a week before the rule was to go into effect, a federal court issued a nationwide preliminary injunction blocking the DOL from enforcing the new federal overtime rule.

The DOL appealed the order. Since then, the rule has been on hold while litigation over the validity of the rule continues.

At first, the DOL asked for an expedited appeal, hoping to get a quick decision on the fate of the rule. But now, under the new administration, two requests for extensions have been filed and granted. The most recent request for an extension until May 1, 2017, was granted this week.

The DOL stated that additional time is “necessary to allow incoming leadership personnel adequate time to consider the issues.” The recent nomination of Alexander Acosta to become next Secretary of Labor is awaiting approval.

So for now the new federal overtime rules are still on hold and their future fate is uncertain.

What This Means for California Employers

California employers should continue to follow the California salary test to determine whether an employee can be classified as exempt under the executive, administrative and professional exemptions. In addition to the salary test, California employees must meet a strict duties test to be classified as exempt.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

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Blanket 100-percent healed policies are unlawful.

The California Department of Fair Employment and Housing (DFEH) recently obtained a settlement that highlights a mistake that employers often make: requiring employees to be 100-percent healed before they can return to work after an injury.

In fact, blanket policies that say an employee must be 100-percent healed before he/she can return to work after an injury are unlawful. Instead, you must assess whether the employee can perform the essential functions of the job with or without reasonable accommodation.

In this instance, an employer’s actions resulted in a $290,000 settlement obtained by the DFEH on behalf of a school district custodian.

Following a back injury, the custodian returned to work with no change to his duties and allegedly performed all of his duties for several months until the school district informed him that he was unqualified for the position due to physical restrictions.

During an investigation by the DFEH, the district reported that it relies on a test of physical capabilities to determine if someone can perform custodial duties. Under this test, an individual must be able to exert “maximal force.” Because the custodian had a lifting restriction preventing him from exercising “maximal force,” he was considered ineligible.

After attempts to mediate the dispute were unsuccessful, the DFEH filed a civil lawsuit alleging violations of the Fair Employment and Housing Act (FEHA). The FEHA prohibits discrimination against employees with disabilities and requires employers to provide a reasonable accommodation to allow qualified employees with disabilities to perform their jobs.

“Whenever an employee with a disability seeks an accommodation, the employer has a duty to provide an individual assessment to determine if that employee can perform the duties of the job, with or without an accommodation,” said DFEH Director Kevin Kish.

“The testing requirements in this case meant, in practical terms, that the employee had to be 100% healed from an injury before he would be permitted to take a test for a job he was already successfully performing. That doesn’t make sense. Policies requiring employees to be ‘100% healed from injury’ in order to work deny employees their right to an individual assessment and violate the FEHA.”

In addition to the monetary settlement, the district also offered reinstatement to the employee and made several policy changes:

Noting that a lifting restriction does not prevent applicants from taking the screening test for a position.
Stating that applicants can pass the test so long as they can safely lift the weight deemed necessary for the duties of that position while staying within any medical restrictions.
Clarifying that the screening test is strictly for use in pre-employment inquiries by new applicants and should never apply to employees returning from injury.
Providing disability accommodation training for a number of supervisors and human resources personnel.
Tip: Initiate a good faith, interactive process to identify a reasonable accommodation for a disabled employee returning from a medical or workers’ compensation leave of absence.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

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