We’re doing a round up of the top five employment issues currently facing employers. Yesterday we addressed three of them. Here are our last two issues.
Social media and discipline
The National Labor Relations Board has been busy over the last few years trying to address rights of concerted activity in employee communications on social media and other electronic communications. It’s pretty clear at this point that employers cannot discipline employees who share workplace complaints with each other – even if that includes crude or vulgar remarks about supervisors. What is still not protected is harassing or threatening commentary or communications designed to sabotage the employer’s business. Similarly, courts continue to find that public employees do not enjoy free speech protection in their comments, even those made off duty, if they do not address public concerns and create undue disruption of the employer’s operation.
Again, the key for employers is to establish strong policies which put employees on notice that their rights do not extend to situations where they identify themselves as employees and harass, threaten or disrupt operations. Most employers, including public employers, should review their communication policies to ensure they are not overly broad in their prohibitions but focus specifically on prohibited communications as currently defined in the law.
Changes to the DOL Regulations
The much anticipated and somewhat feared by employers recommended changes to the regulations defining white collar exemptions represents a significant change, although not as drastic as was expected. Of course the most noteworthy recommended change is the minimum salary required to be paid to an employee to fulfill that component of the exemption test. If the recommendations are adopted, the minimum salary will increase from $455 a week to $970 a week. This will result in a drastic change in some industries.
It is time for employers to review both the salaries and the duties of those positions that will be affected by this change. Employers must be prepared to either begin to pay overtime to employees in affected positions or to increase their salaries to meet the anticipated new threshold.
Anticipated but not issued by the DOL were recommendations on the duties test for white collar exemptions. Remember, white collar exempt positions must meet both the salary and duties test. Many expected the DOL to recommend changes to the duties test which would alter the analysis of that factor. While no recommendation of changes to that test was made by the DOL, the final regulations may still contain amendments. Employers should be prepared to review the status of most of their exempt employees to ensure they remain exempt under the new regulations.