Alabama Employment Law

What Would Saban Do? Preparation for DOL’s New Overtime Rules

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

businessman-311337_640 (1)We all procrastinate.  Give us a deadline and we’ll wait to the last minute to complete the project.  At the University of Alabama, Nick Saban has rejected that tendency and turned The Process into forward thinking preparation.  While college football players aren’t entitled to overtime compensation, employers can adopt some principles of The Process and start preparing for the Department of Labor’s new overtime rules.

The release-date for the new overtime rules is unclear.  The Department of Labor’s Fall 2015 Unified Agenda stated that the anticipated release date would be in July 2016.  However, in November of 2015, Solicitor of Labor M. Patricia Smith said the rules wouldn’t be issued until “late 2016”.

If you start preparing now, the uncertainly of the release date won’t have as much impact on your business.  We know that the threshold salary to exempt employees from overtime is going to increase.  Right now, an employee making a salary of $23,660 can potentially be exempted from overtime requirements.  In other words, if you pay an employee a minimum salary more than $23,660 and they perform certain executive, administrative or professional duties, you don’t have to pay them overtime.

That threshold amount is going to increase.  The Department of Labor’s draft rule proposed to increase the salary requirement to $50,440 — which is the 40th percentile for full-time salaried workers in America.  Legal pundits believe there is some potential for compromise on the amount, but everybody agrees there will be an increase.  The 35th Percentile is $44,304 per year and the 30th Percentile is $40,196 per year.

Potentially, your business has employees who are making more than the current threshold of $23,440, but less than the potential new threshold — and you are not paying them overtime.  But, under the new DOL regulations, you could be required to pay them overtime.  Start identifying those employees now.  Also, you need to be thinking about tough internal policy decisions.  Do you increase the salary of those employees to “bump” them over the new threshold?  Do you actually lower their salary to account for the overtime that they will now accrue?   Do you take the “hit” to your profitability and keep their salary the same — plus pay overtime.

The new regulations will unquestionably require businesses to make difficult decisions.  But, following The Process, preparing early, and clearly communicating changes to employees can make the transition less difficult.

EMERGING LGBT ISSUES IN THE WORKPLACE

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

The Eleventh Circuit Court of Appeals has released a decision which highlights the difficulties employers face in disciplining transgender employees.  Chavez v. Credit Nation Auto Sales, LLC, No. 14-14596, 2016 WL 158820 (11th Cir. Jan. 14, 2016.).  Chavez alleged that she was terminated from employment as a mechanic because she is a transgender person.  Credit Nation responded that she was terminated because she slept for 40 minutes on-the-clock in a customer’s vehicle.  The Court ruled that Credit Nation possessed a permissible reason for terminating Chavez, and affirmed dismissal of her claims for back pay and reinstatement.  Nevertheless, the Court also found that Chavez presented sufficient evidence to show that her gender was a “motivating factor” in her termination, even though sleeping-on-the-job was a legitimate motivating factor as well.  Chavez’s evidence of gender discrimination included:  (1) the President of Credit Nation told Chavez that he was “very nervous” about her gender transition and the “possible ramifications”; (2) the President told Chavez that she was going to “negatively impact his business”; (3) the President asked Chavez not to wear a dress back and forth to work; (4) a Vice-President told Chavez to “tone it down” and be “very careful” because the President “didn’t like” the implications of Chavez’s gender transition; and, (5) Credit Nation deviated from its “normal” progressive discipline policy in terminating Chavez.  The Eleventh Circuit remanded the case for a trial on whether Chavez’s transgender status was a motivating factor in the employment decision.

Chavez is the latest example of the difficult terrain that an employer must navigate when making decisions that affect Lesbian, Gay, Bisexual and Transgender employees. After Chavez, it is now well-established in the Eleventh Circuit (which reviews cases from Alabama) that sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination against a transgender person for gender nonconformity.  In short, as a general rule, transgender employees are protected by Title VII.

In contrast, the general rule is that sexual orientation (i.e., gay or bisexual) is not a protected characteristic under Title VII.  Nevertheless, any lawyer will tell you that there are always exceptions to a general rule.  For example, the Supreme Court has clearly held that same-sex sexual harassment is prohibited by Title VII.  Additionally, there is some authority in the Eleventh Circuit indicating that discrimination on the basis of “nonconformity to gender stereotypes” might be actionable under Title VII.  See Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), but see EEOC v. McPherson Companies, Inc., 914 F.Supp.2d 1234 (N.D. Ala. 2012)(finding there must be “obvious gender non-conformity”).

The federal government is attempting to insert itself into these uncertain waters.  President Obama issued Executive Order 13672 which explicitly prevents federal contractors from discriminating on the basis of sexual orientation or gender identity.  Additionally, the EEOC has taken the position that discrimination on the basis of sexual orientation is sex discrimination under Title VII.

In short, the law is in a state of flux with regard to LGBT issues.  Proceed carefully before making employment decisions based upon LGBT status.

CAN I FIRE MY EMPLOYEE WHO KEEPS YELLING “ROLL TIDE” AT THE OFFICE?  FREEDOM OF SPEECH RIGHTS IN THE WORKPLACE

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

 

Auburn fans are just tired of it.  All they hear about is The Process.  “Nick Saban and Bear Bryant are the best coaches in the history of the universe.”  “Roll Tide!!!”

If I fire an employee who yells “Roll Tide,” am I violating his First Amendment Freedom of Speech rights?  For private employers, the legalistic answer to this question is “No.”  As discussed below, however, there is a lot of employee speech that is protected.

The United States Constitution and its amendments bestow rights on citizens with regard to their interaction with government.  As a result, the First Amendment guarantees that government will not restrict any citizen’s right to freedom of speech.  But, private employers are not the government.  As a result, from a pure constitutional law perspective, private employers are not controlled by the First Amendment.  Thus, in most circumstances, a private employer cannot violate an employee’s free speech rights.

In a private office, if my staff is composed of Auburn fans, and I am an Alabama fan, I can fire them for saying “War Eagle” in the workplace.

But, there are always exceptions to the general rule.  While the First Amendment does not protect employee speech in the private workplace, there are plenty of laws that do provide protection for employee speech.  Virtually every federal employment law protects employees who speak out against discrimination in the workplace.  The NLRB and Executive Orders from the President protect employees who speak out about working conditions — particularly employees who talk to each other about wages.

Unfortunately for college football fans, there is no law which protects employees who scream “Roll Tide” or “War Eagle” at work.  But, if your employees are making other statements that may be upsetting to you, be careful before taking action.