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A busy week in employment law

30 Jun 2017 10:09 AM | Anonymous

Last week I gave a speech for the Fox Cities Chamber providing an overview of employment laws, as well as proposed bills, and litigation and where we think those things might go.  I think I mentioned that I don't have a crystal ball and for those of you in attendance and keeping score, I was wrong (or at least partially wrong) on three separate predictions since that speech.  (Missed the speech?  Email me for the slides!) So let's do a wrap up of what's happened in the past week or so and what this may mean for employers.


We got the Senate's version of "repeal and replace: phase 1" bill last week.  SHRM has a good summary here showing the differences with the House bill and I did a blog on it as well.  The expectation was that the bill would be voted on before the Senate's break for the July 4th holiday, which begins today.  However, on Tuesday Senate leadership announced the vote would be delayed.  This is due, in large part, to not having the requisite 50 votes to pass. If you recall, normally bills require a super majority of 60 votes to pass the Senate.  But budget reconciliation bills only require 50 votes.  Presently, there are 52 Republicans in the Senate.  So for the bill to pass, they need 50 Republicans to agree and then with a 50/50 split Vice President Pence gets to cast the deciding vote.  There are at least 5 Republican Senators, including our own Ron Johnson, that have spoken out against voting for the bill.  So if you have concerns about the bill, or you would like to see it passed, call Mr. Johnson's office today and voice your opinion.


Those "overtime rules" that were put on hold last November?  Yep, back in the news.  As a refresher, DOL proposed and then finalized a rule to go into effect December 1, 2016, that would require certain exempt-level employees to earn at least $47,470, in addition to meeting the duties test, to be considered exempt from overtime.  A group of employers sued alleging the DOL lacked the authority to set the threshold so high and a Texas court enjoined that rule a few days before December 1st.  Not only did the Texas court believe the DOL lacked authority to set the threshold so high, but questioned its ability to set any threshold.  The DOL appealed the injunction to the 5th Circuit Court of Appeals.  While the DOL filed its initial brief, and the Plaintiffs responded, the DOL's reply brief was due shortly after President Trump took office.  As a result, the DOL asked for several extensions until a new Secretary of Labor could be put in place and determine the direction of its position on the subject.  In April, Alexander Acosta was confirmed as the new Secretary of Labor.  While he noted during the Senate confirmation hearings he believed $47,470 threshold was too high, there hasn't been much public action to this point.  Until this week - today the DOL's reply brief is being filed and the DOL is not going to defend the $47,470 threshold.  But it will move forward with the litigation to get a determination as to whether DOL has the authority to set any salary basis threshold. 

This week the DOL also sent a request for information to the Office of Management and Budget.  Essentially, this means the DOL is ready to reconsider the pending regulation and likely propose a lower salary basis threshold.  Stay tuned... (and to see what Wisconsin has proposed, see here).

Travel Ban 2.0

President Trump signed an executive order on January 27, 2017, suspending aliens from 7 countries.  Litigation ensued regarding that "travel ban", keeping it from being enforced.  Subsequently, on March 6, 2017, a new executive order was signed suspending entries of aliens from 6 countries (often referred to as "travel ban 2.0").    This week, the Supreme Court upheld travel ban 2.0, which then went into effect 72 hours later (or 8 pm ET on Thursday, June 29, 2017).  An emergency motion has already been filed in Hawaii in an attempt to block enforcement. 

So what do you need to know? If you have employees in the 6 countries listed by the ban, the Supreme Court said those individuals can enter freely (assuming they have a current visa or a green card).  This is an issue for those who don't have "relationship" already to the US.  And if you've applied for a visa for an employee from this country, expect long delays.  But this should have relatively low impact on most employers generally. 


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