The U.S. Department of Labor’s (DOL) new overtime rule for white collar exemptions is now expected to be published around July 2016, according to the DOL’s Fall 2015 Semi-Annual Regulatory Agenda. On June 30, 2015, the DOL issued its proposed overtime rule for white collar exemptions. Once the final rule is published, the compliance timeline for employers will begin.

The DOL’s proposed rule almost doubled the minimum salary amount required for employees to be exempt as an executive, administrative, or professional employee. The proposed rule recommended the salary threshold for the exemption be increased from the current $455/week or $23,660/year to $970/week or $50,440/year. Further, while the DOL did not propose any changes to the “duties” test in June, it did invite comments on that topic. As such, it would not be much of a surprise if changes are made in the final rule to the “duties” test as well.

It is expected that employers will have at least 60 days to comply once the final rule is published.

Ever since the Ohio constitution was amended in 2006, Ohio’s minimum wage correlates with the rate of inflation for the twelve months prior to September. The Ohio Department of Commerce has calculated the rate of inflation and determined that based on the consumer price index (CPI), Ohio’s minimum wage rates will stay the same in 2016.

Ohio’s minimum wage is currently $8.10 per hour for regular hourly employees. The minimum wage for tipped employees is $4.05 per hour.

Ohio’s minimum wage law does not apply to (i) employees at smaller companies whose annual gross receipts are $297,000 or less per year or (ii) 14- and 15-year-olds. The Ohio minimum wage for these employees is $7.25 per hour because the Ohio wage for these employees is tied to the federal minimum wage. The federal minimum hourly wage is currently $7.25.

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For more information on this or other employment law issues, please contact one of our employment lawyers.

On August 27th, the National Labor Relations Board (NLRB) dramatically reinterpreted the “joint-employer” doctrine. Under the National Labor Relations Act (NLRA), “joint employers” are two separate employers that both control the terms and conditions of shared employees-shared in the sense that the employees are employed by an entity that provides temporary labor to work for another employer or with whom that employer subcontracts. Previously, the NLRB’s definition of “joint employer” required both employers to have direct and immediate control over the employee(s) in question. The NLRB has expanded the definition to include any employer that has the right of “actual control whether direct or indirect.”

In Browning-Ferris Industries of California, Inc., (“BFI”), BFI engaged a subcontractor to perform “sorting” work at a recycling facility. The employees were employed by another company, Leadpoint, but were indirectly governed by BFI’s rules and pay structures. The NLRB cited two examples in which BFI asked Leadpoint to terminate an employee for BFI rules violations. BFI did not participate in day-to-day labor relations with the Leadpoint employees, and did not participate in the hiring or general retention of those employees. Nevertheless, the NLRB held that BFI had overarching indirect control over Leadpoint’s employees and consequently should be required to participate in collective bargaining negotiations with a union representing the Leadpoint employees.

We expect this case to be appealed to a United States Circuit Court of Appeals and ultimately to the Supreme Court. We also expect Congress to attempt to amend the NLRA to make this definition unlawful. Nevertheless, unless and until this case is reversed, employers, whether currently organized or not, must be aware that the hiring of contingent workers to augment a regular work force will put them at risk of being found an “employer” of the temporary employees or the subcontractor’s employees. The consequences of that finding may include placing the employer under a duty to bargain and may impose shared liability for any unfair labor practice charges that are filed on behalf of those employees.

The NLRB made it quite clear that this new definition of “joint employer” will replace the prior definition immediately and each case will be decided on its own facts. Consequently, it is necessary that employers that subcontract any work or hire contingent/temporary employees review existing rules and policies regarding such employees.

This case does not directly apply to franchisor/franchisee relationships. However, in a case involving McDonald’s fast food restaurants the NLRB is currently considering whether or not franchisors and their franchisees should be considered joint employers. Browning-Ferris could portend the outcome of this case as well.

Contact: Marc J. Bloch

With the enduring popularity of social media sites such as Facebook, Twitter, and Instagram, companies large and small are looking to connect with the social media market and use it to their marketing advantage. However, with social media marketing can come employment-related headaches that aren’t always anticipated.

So, here’s the scenario. You’ve assigned an employee the task of managing your company’s social media presence. The employee works to promote the company’s brand and products/services via company-owned and maintained blogs and websites as well as through third-party applications such as Twitter and Facebook. The social media campaign successfully garners numerous “friends” and “followers.” Everything is going gang busters… until the employee resigns unexpectedly or is terminated and you realize you are unable to access the social media sites managed by the employee.

So what exactly are the issues you need to think about when rolling out a social media campaign?

A significant issue a company could encounter when placing its social media marketing in the hands of an employee is lack of access. In too many situations, only one employee has the log-in information or the administrative rights to access and update social media content. Now, suddenly that employee is gone and so is access to the accounts, leaving the company vulnerable, at least until the IT department can re-route access (which may be no easy task if you are dealing with a third-party social media site such as Twitter). In addition to losing access, a disgruntled employee can cause a lot of damage while the company scrambles to take down a page, block access, or gain control of the account. In the meantime, the company’s reputation and valuable marketing asset–its “friends” and “followers”–may have been compromised.

It is imperative that, in any social media marketing campaign, senior managers or company owners have the log-in and passwords associated with all accounts. In addition to ensuring that someone in management has the necessary information to maintain and control the account, employers may be able to implement system settings that provide alert notifications when a password has been changed. Employee handbooks and policies also should carefully detail requirements for employees to disclose passwords and provide advance notification before changing any login information.

Another concern is content. Specific review protocols should be in place to ensure that inappropriate or confidential information is not posted or disseminated through social media. For instance, for employees who blog or post about company products, the Federal Trade Commission mandates that employees must disclose that they work for the company and cannot appear to be regular customers. Review procedures should also be in place to ensure that postings and content made on behalf of the company are in line with the company’s image, do not violate workplace policies such as confidentiality or discrimination policies, and do not open the door to potential company liability.

The bigger, potentially more expensive, issue is ownership. If ownership terms are not specifically spelled out in the employment contract, a dispute could arise as to whether or not the accounts and, more importantly, the “friends” and “followers” belong to the company or the person who cultivated them. The ownership issue is particularly blurred if the employee launches the company accounts using a database that he/she already cultivated prior to joining the company, or if, for instance, employees use personal Twitter handles–exclusively or in addition to the company handle–when communicating on behalf of the company.

Some general tips for employers looking to protect their social media assets include:

As previously mentioned, this is a new area for many companies, as well as for the courts; however, the existence of clear policies and agreements setting forth the parties’ rights relative to social media often go a long way in resolving such disputes. In addition, it is always good to consult with experienced legal counsel to ensure such policies meet legal, as well as operational, concerns.

To reach Susan, call 216-928-2936 or e-mail sanderson@walterhav.com.