On March 13, 2014, President Obama signed a memorandum that launched the U.S. Department of Labor’s (DOL) efforts to update the Fair Labor Standards Act’s (FLSA) overtime rules for executive, administrative, professional, outside sales, and computer employees, commonly referred to as the “white collar” exemptions.  To be exempt from the overtime regulations, employees must meet both a salary basis test and a job duties test.  On Tuesday, June 30, 2015, the U.S. Department of Labor (DOL) released the long-awaited proposed rule regarding the expansion of overtime regulations under the Fair Labor Standards Act (FLSA). It is anticipated that, if these rules are imposed, nearly 5 million additional workers would be eligible for overtime under the FLSA’s regulations.

The most drastic difference in the proposed regulations is the raise of the minimum salary requirement to qualify for the white collar exemption.  Currently, the minimum salary requirement is $455 per week ($23,660 per year), a number that was set in 2004.  The proposed rule would increase the minimum salary requirement to $970 per week ($50,440 per year).  This figure is equal to the 40th percentile of weekly earnings for full-time, salaried employees.  The proposed rule also includes an automatic adjustment to the salary threshold so that the minimum salary requirement does not become outdated.  The DOL is also seeking comment on whether nondiscretionary bonuses can be included to satisfy the salary requirement.

Although the proposed rule does not specifically change any of the job duties requirements, the DOL did invite comment on whether or not these tests are working as intended or should be changed.  One suggestion is that the federal job duties test would mirror the job duties test from California in which employees have to spend at least 50 percent of their time on exempt duties to qualify as exempt. The current federal test simply looks at a worker’s “primary duty” and whether the employee’s primary duty meets the requirements of the particular exemption classification. A change in the duties test could also significantly decrease the number of employees who qualify for the overtime exemption.

Once the proposed rule is published, likely in the next few days, there will be a sixty-day public comment period.  Only after that will the DOL be able to issue a final rule.  Although employers do not have to do anything at this time and cannot know exactly how these proposed rule changes will impact them until they become final, they should be staying aware of these changes.  Once a final rule is published, employers will likely need to reevaluate their exempt and non-exempt classifications for their employees to make sure that they are in compliance with the final DOL rules.

Gregory Lyons, of O’Neil, Cannon, Hollman, DeJong and Laing S.C., has been selected to the 2015 list as a member of the Nation’s Top One Percent by the National Association of Distinguished Counsel. NADC is an organization dedicated to promoting the highest standards of legal excellence. Its mission is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate.

Members are thoroughly vetted by a research team, selected by a blue ribbon panel of attorneys with podium status from independently neutral organizations, and approved by a judicial review board as exhibiting virtue in the practice of law. Due to the incredible selectivity of the appointment process, only the top 1% of attorneys in the United States are awarded membership in NADC. This elite class of advocates consists of the finest leaders of the legal profession from across the nation.

Eleven attorneys from O’Neil Cannon have been named “Leading Lawyers” in Milwaukee by M Magazine (July 2015), Milwaukee’s Lifestyle Magazine. Those attorneys are the following:

• Melissa Blair (Banking)
• Jim DeJong (Business)
• Pete Faust (Securities Offerings)
• Grant Killoran (Litigation)
• Dean Laing (Litigation)
• Greg Lyons (Litigation)
• Greg Mager (Family)
• Patrick McBride (Litigation)
• Randy Nash (Litigation)
• Steve Slawinski (Construction/Development)

The “Leading Lawyers” were selected by Avvo, a Seattle-based company that rates attorneys. Avvo’s proprietary algorithm rates all attorneys on a 10-point scale, factoring in peer endorsements as well as experience, education, training, speaking, publishing, and awards. In order to make the list of “Leading Lawyers” as published by M Magazine, an attorney must be ranked in the top 5–10% of his or her area of specialty.

Grant Killoran, the Chair of O’Neil, Cannon, Hollman, DeJong and Laing’s Litigation Practice Group, recently presented an article and speech entitled “Ebola Panic—When Public Health Concerns Confront the Constitution” at the 9th Annual State Bar of Texas “Bill of Rights Course: Cutting-Edge Controversies in Constitutional Law” in Austin, Texas.

Attorney Killoran authored the article with Attorney Christa Wittenberg of O’Neil, Cannon, Hollman, DeJong and Laing and presented at the seminar an analysis of state and federal constitutional law governing public health emergencies, focusing on the recent Ebola virus outbreak in the U.S., along with presentations by law professors and attorneys from around the country on other constitutional issues.

On June 8, 2015, Joe Maier, a shareholder in the Estate Planning Group, and Randy Nash, a shareholder in the Litigation Group, collaborated to present to the Appleton office of the Principal Financial Network a series of real life estate planning facts situations that have led to inheritance litigation.

The Principal Financial Group–Wisconsin Business Center is a client-focused financial services organization working with employers and individuals to help them establish priorities and develop strategies to achieve financial success.

On June 4, 2015, Gregory S. Mager spoke during the Family Law 101 portion of the Wisconsin Supreme’s Family Law Seminar, a continuing education program for Judges and Court Commissioners throughout the state of Wisconsin.

If you have any family law related questions, please contact Attorney Gregory Mager at O’Neil Cannon at 414-276-5000.

Today, the U.S. Supreme Court issued its ruling in EEOC v. Abercrombie and Fitch. Justice Scalia penned the majority opinion while Justice Alito wrote a concurrence and Justice Thomas concurred in part and dissented in part. The case, which centered around whether employers can be held liable for failing to accommodate a religious practice only after the applicant or employee has informed the employer of the need for an accommodation, was covered by our blog in January. The facts that brought the case to the Supreme Court are that a Muslim job applicant wore a head scarf to her job interview, but because the retailer’s Look Policy stated that employees could not wear “caps,” she was not hired. The retailer argued, and the Tenth Circuit agreed, that it was the applicant’s duty to inform the employer that she was wearing the headscarf for a religious reason and would, therefore, need an accommodation from their policy, which she did not do. The Supreme Court reversed, stating that an applicant would only need to show that the need for a religious accommodation was a motivating factor in the employment decision to prevail.

The Supreme Court drew a distinction between an employer having “actual knowledge” of a need for a religious accommodation and having that need be a “motivating factor” in the employment decision. An employer cannot refuse to hire an applicant based on a desire to avoid providing an accommodation, even if they’re only guessing that an accommodation would be necessary. The Supreme Court based this on Title VII’s “because of” language, which means a motivating factor, not actual knowledge. Title VII, unlike other antidiscrimination statutes like the Americans with Disabilities Act, does not impose a knowledge requirement. The Court found this important in deciding that it is the employer’s motive that is the essential factor in proving discrimination under Title VII. Although the Court stated that adding a knowledge requirement would be adding words to the law, which is the duty of Congress, not the courts, it did acknowledge that the employer’s knowledge may make it easier to infer motive as it would be difficult to prove that motive unless an employee can prove that the employer at least suspects that the practice is a religious practice.

The rule that the Supreme Court came out with, and employers should take care to follow is “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Additionally, the Court stated that Title VII requires employers to give accommodations from otherwise neutral policies to employees for religious reasons. Therefore, employers cannot take religious beliefs that they either know or suspect exist into account when making employment decisions, and they must accommodate religious beliefs unless such an accommodation would impose an undue hardship.

In April 2015, the EEOC also settled one of the first cases in which it attempted to litigate that transgender discrimination is protected under Title VII. The EEOC filed an amicus brief in a previous case claiming that sex discrimination includes discrimination against those who do not conform to gender stereotypes and, therefore, would include transgender individuals who are either physically male and gender-identify as female or are physically female and gender-identify as male. In March, the U.S. Department of Justice also sued Southeastern Oklahoma State University and the Regional University System of Oklahoma for denying tenure to and eventually terminating an employee because of her gender identity. Although none of these cases have received decisions on the merits of the case, the EEOC has made its position clear, and employers need to take stock of their policies or prepare for litigation.

These and other cases that have been filed raise interesting and challenging questions for employers. Gender expression is not specifically covered under Title VII, but that doesn’t necessarily mean that transgender employees can’t be covered by the statute. The two Circuit Courts of Appeals that have addressed the issue, the Sixth and the Eleventh, have held that a transgender plaintiff can state a claim for sex bias if the defendant took an adverse action against them because the worker-plaintiff didn’t conform to a sex stereotype or norm. However, this does not mean that the law is settled, and district courts across the country may be faced with interpreting the law in these cases sooner rather than later. Employers should also make sure to take state law into account.

With the backing of the EEOC, discrimination suits by transgender employees could be a rising trend that employers should be aware of. Employers should review their policies and practices as they relate to discrimination and harassment and take complaints of harassment and discrimination of any kind seriously and investigate them thoroughly.

Steven J. Slawinski, of O’Neil Cannon, has been selected to become Vice Chair of the State Bar’s Construction and Public Contract Law Board, effective July, 1, 2015. This section is made up of attorneys who specialize in construction law and government contracts. He has been a member of this section for many years and has been a section board member since July of 2014.

Mr. Slawinski has been representing clients in complex construction, business, and real estate litigation for nearly 30 years and was named one of the “Wisconsin’s Top Construction Attorneys” by the Wisconsin Law Journal/Daily Reporter.

Learn more about Attorney Slawinski by visiting his full profile.

Steven Slawinski presented at the Wisconsin Land Title Association’s Spring Conference in Madison on May 13, 2015. He discussed the recent opinion of the United States Court of Appeals for the Seventh Circuit in BB-Syndication Services, Inc. v. First American Title Insurance Co. Mr. Slawinski had represented the prevailing party, First American, in that litigation. Attorney Slawinski is a member of the Litigation and Real Estate Practice Groups at O’Neil Cannon, and may be contacted by telephone at 414-276-5000, or via e-mail at steve.slawinski@wilaw.com.