New overtime rule coming in March 2019: In its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions, the Trump Administration formally announced its intention to issue a Notice of Proposed Rulemaking (NPRM) in March 2019 “to determine the appropriate salary level for exemption of executive, administrative, and professional employees.” What is expected in the new rules? Likely an increase in the minimum salary for exemption to something in the low-to-mid $30,000s. This would be consistent with Secretary Acosta’s comments on the issue but still considerably lower than the level proposed by the Obama Administration. It would also be significantly lower than some state law minimum salaries for exemption (consider New York’s minimum for exempt executive and administrative employees, which will climb to $58,500 at the end of 2018). Another thing that may be seen in a new overtime rule are more modern examples of how the various exemptions might apply in today’s workplaces. The Department of Labor (DOL) included a number of new examples in its sweeping revisions to the overtime exemption rules in 2004. It would make sense to revisit those examples and to consider additional examples, given how the workplace has evolved in the last 15 years. Source: Proskauer 10/14/18
Exit interviews are necessary: In a recent decision, the Eleventh Circuit Court of Appeals held that the use of the N-Word in the workplace one time is sufficient to trigger a hostile work environment. Additionally, the Eleventh Circuit held that an employer may be held liable for workplace harassment even when the plaintiff admitted that she did not complain of harassment until her final day of employment. When faced with allegations of a hostile work environment, employers often rely on two defenses: First, in order to be actionable, a hostile work environment must be both “subjectively” and “objectively” hostile. In other words, the plaintiff must subjectively perceive the harassment to be abusive, and the work environment must be one “that a reasonable person would find hostile or abusive.” Over the years, courts have typically required multiple instances of inappropriate or harassing behavior, in order to meet this standard. Second, if the harassing behavior was committed by co-workers, the plaintiff must have complained of the harassment. Therefore, it is important that once a company is aware of any improper harassment-related conduct, whether from a direct complaint or an observation in the workplace, the company must take prompt and appropriate action. Source: Seyfarth Shaw 10/18/18
New health care survey shows premium increases coming in at 3.5%: The coming year is expected to usher in better news for U.S. workers when it comes to their health care costs, according to a new actuarial analysis by Aon plc. In 2018, health care premiums rose 3.5%. However, employers passed along a lower 2.2% premium increase to employees, absorbing a larger 3.9% increase to company costs. Aon’s analysis found that after plan design changes and vendor negotiations, 2019 medical and pharmacy plans premiums are expected to increase by 3.5%, the same percentage as 2018. The projections are based on data from Aon’s Health Value Initiative database, which captures health care cost and benefit data for 497 large U.S. employers representing 10.9 million participants, more than 1,260 plans and $62.5 billion in 2018 health care spending. Shift cost sharing is not a big driver for employers this year. Cost saving drivers include personalized provider navigation and transparency solutions to programs for those with chronic diseases. In addition is vendor management, such as what GM has done with Henry Ford Health System. Drug pricing rebates have been integral to lowering drug cost trends. Source: CCH 10/17/18
More large employers providing onsite health clinics: Employers, including tech giants Apple and Amazon, are embracing onsite health clinics. A third of U.S. employers with 5,000 employees or more now offer general medical clinics at the worksite, according to a Mercer and National Association of Worksite Health Centers (NAWHC) survey, a sizable jump from five years ago. In 2017, 33% of employers provided general medical clinics, up from just 24% in 2012, according to the report. Worksite clinics that focus on occupational health are still slightly more prevalent (38%), but they are not growing as fast as those offering general medical services. Though onsite clinics are less prevalent among mid-sized employers — 16% of firms with 500-4,999 employees currently provide a general medical clinic — 8% of those companies say they will add one by 2019. Source: EBN 10/21/18
If you are not compliant with the European Union privacy law, join the club: Nearly one in five companies may never comply with the European Union’s General Data Protection Regulation (GDPR), according to a new report. Ernst and Young (EY) and the International Association of Privacy Professionals (IAPP) surveyed 550 privacy professionals about GDPR compliance for the IAPP-EY Annual Privacy Governance Report 2018, released Thursday. More than half of respondents, 56%, said they are far from compliant or will never fully comply. 76% of respondents believed GDPR applied to their company. Rita Heimes, the IAPP’s research director and data protection officer, said those stats don’t mean companies aren’t trying. Respondents were asked to rate aspects of GDPR by difficulty. Some of the hardest aspects of the regulation, according to respondent ranking, are the right to be forgotten, fulfilling data subject access requests, and getting explicit consent from users. U.S. companies reported higher difficulty scores across the board compared with those in other countries. However, U.S. companies were more likely to give themselves high compliance scores. More than half, 53%, gave themselves an eight out of 10 or higher on a scale measuring GDPR compliance, compared with 38% of their EU counterparts who did the same. Source: law.com 10/19/18
Does your janitor have a non-compete? Cushman & Wakefield sued one of its former janitors, accusing her of breaking her noncompete agreement by taking a job in the same building she had been cleaning for the global real estate company. After several adverse stories in the news, Cushman & Wakefield have decided to drop their lawsuit against their former janitor, Sonia Mercado. They will also pay her back the balance of the $3,500 bonus she’d given up in an effort not to trigger her noncompete agreement. Now the company is claiming this wasn’t a noncompete per se but rather a “non-service” agreement meant to prevent a competitor from easily taking over the management of a building. Whatever it is, it is a cautionary tale for employers not to overuse the non-compete agreements for any and all employees. Source: Wall Street Journal 10/18/18