Week in Review

June 01, 2015

Department of Labor poised to release ‘white collar exemption’ proposal, tackle electronic device use outside work hours
The Department of Labor’s Wage and Hour Division expects to issue its much anticipated proposal retooling the “white collar” exemption in June. By the end of August, the WHD also plans to publish a request for information on employee use of technology, such as portable electronic devices, while away from the workplace and outside scheduled work hours, according to the Department’s Agency Rule List for Spring 2015. There are only two items on the WHD’s regulatory list. The first is a regulation, Hours worked under the FLSA, which will begin with a request for information by the end of August. The DOL will seek information from stakeholders on employee use of technology, including portable electronic devices, while away from the workplace and outside of scheduled work hours. The second item, will update the FLSA minimum wage and overtime exemption for “white collar” employees at the direction of President Obama. It is important to note that no exemption changes have been made. This is simply the next step in the process of considering proposed revisions. The public comment period will likely last between 60-90 days once the proposal has been released. In March 2014, the president issued a memorandum to the Secretary of Labor to modernize and streamline the existing overtime regulations for executive, administrative, and professional employees. These regulations were last updated in 2004.

Alabama dental lab/manufacturer to pay $115K in back wages to settle hiring bias allegations
An Alabama based dental lab and dental products manufacturer, will pay $115,000 in back wages plus interest to resolve OFCCP allegations of systemic hiring discrimination at its Huntsville, Alabama corporate headquarters, the agency announced on May 27, 2015. During a compliance review, the OFCCP determined that the federal contractor discriminated against 83 women and 19 African Americans who were denied dental lab technician positions, as well as 57 men who were rejected for shipping positions. The settlement agreement also provides that the company will extend job offers to at least 19 of the original class members as positions become available. The family owned and operated manufacturer of dental prostheses, orthodontic appliances, fixed and removable implants and dentures, held more than $2 million in federal contracts with the U.S. Department of Veterans Affairs in 2014. OFCCP investigators found that, from November 2011 to November 2013, the company used a dexterity test that was not supported by a validation study that satisfies the requirements of the Uniform Guidelines on Employee Selection Procedures in the selection process for dental lab technicians. The investigators also determined that the company stereotyped shipping positions as female jobs and rejected male applicants. Accordingly, the agency concluded that the hiring process systematically discriminated against women, men and African-American applicants in violation of Executive Order 11246. The company has ceased using the tests and revised its selection process to ensure equal opportunity for all applicants, the OFCCP reports.

Social Media and Employer Access
Following a national trend, Montana and Virginia have become the nineteenth and twentieth states to enact laws restricting employer access to the social media accounts of applicants and employees. Virginia’s law, which takes effect on July 1, 2015, prohibits requesting (or requiring) the disclosure of usernames and/or passwords to an individual’s social media account. In addition, the law prohibits any requirement to change privacy settings or add a manager to the “friend” or contact list associated with a particular social media account. In addition to prohibiting the disclosure of usernames and passwords, under Montana’s new law, which took effect April 23, 2015, an employer is prohibited from requiring the disclosure of any information associated with a social media account or requesting an employee or applicant access a social media account in the presence of the employer. As is common with such legislation, both statutes contain an anti-retaliation provision that prohibits an employer from taking any adverse actions against individual that exercise his or her rights under the law. Notably, these statutes apply only to personal social media accounts meaning accounts opened on behalf or at the request of the employer are not protected. Employers are also still free to view information contained in personal social media accounts that is publically available. Virginia’s law also includes an exception that permits employers to request login information if the employer has a “reasonable belief” the account is “relevant” to a “formal investigation or related proceeding” concerning the violation of a federal, state, or local law. As the legal landscape associated with social media accounts continues to evolve, employers should review their policies and procedures to ensure compliance with all relevant statutory provisions.