Chris Fontan and Lauren Lawhorn spoke at the Employment and HR Law Brunch & Learn Workshop given by Rankin County Chamber and TempStaff in Flowood on July 17, 2019. Their presentations provided to attendees may be viewed in the links below.
The 2019 edition of Chambers USA, which lists leading law firms and individual lawyers in an extensive range of practice areas, jointly awarded high rankings to nine Brunini attorneys and six of the firm’s practice areas.
Chambers USA ranked six of Brunini’s practices, with the firm’s Energy & Natural Resources practice receiving the highest ranking possible in the state. The firm’s Commercial Litigation, Corporate/Commercial and Environmental practices were also highly ranked as well as Labor & Employment and Real Estate.
A collective list of the nine Brunini attorneys recognized as among the best in their fields in Mississippi by Chambers USA include:
Energy & Natural Resources
Litigation: General Commercial
On Thursday, March 7, 2019, the United States Department of Labor (the DOL) released its newest Proposed Rule that, if implemented, would broaden federal overtime pay regulations to cover millions of additional workers who are currently exempt from overtime eligibility. Under the Proposed Rule, the DOL seeks to update the regulations governing which executive, administrative, and professional employees (the so-called “white collar” workers) are entitled to minimum wage and overtime pay protections under the Fair Labor Standards Act (the FLSA).
The FLSA requires employers to pay its “non-exempt employees” overtime (1 ½ the workers’ “regular rate of pay”) for all hours worked in excess of forty (40) per week. See 29 U.S.C. § 207. The DOL’s regulations implementing the FLSA sets forth a variety of employment classifications that are “exempt” from the FLSA’s overtime requirement—including employees performing executive, administrative, and/or professional job duties. Since the 1940’s, in order for an employee to qualify as an exempt “white collar” employee, he/she had to meet three “tests”: (1) the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed; (2) the amount of salary paid must meet a minimum specified amount; and (3) the employee’s job duties must primarily involve executive, administrative, or professional duties (as defined by the regulations). The DOL last fully updated these regulations in 2004, setting the current minimum salary threshold at $455 per week (or $23,660 per year).
In May 2016, the Obama-era DOL attempted change to the overtime rule that would have doubled the minimum salary level for the so-called “white collar” exemption from $23,660 to nearly $48,000 per year. This proposal would have also increased the total annual compensation requirement needed to exempt “highly compensated employees” to $134,004 annually (previously set at $100,000), established a mechanism for automatically updating the minimum salary level every three years and allowed employers to use nondiscretionary bonuses and incentive payments to satisfy up to 10% of the new standard salary level.
Ultimately, the May 2016 proposal was challenged in court. On November 22, 2016, the U.S. District Court for the Eastern District of Texas enjoined the DOL from implementing and enforcing the proposal. On August 31, 2017, the court granted summary judgment against the DOL, invalidating the May 2016 proposal. Currently, the Department is enforcing the regulations that have been in place since 2004, including the $455 per week standard salary level.
While an appeal of that decision to the United States Court of Appeals for the Fifth Circuit is pending, the current DOL seeks to formally rescind the Obama-era DOL’s 2016 proposal with this Proposed Rule. In its place, the new Proposed Rule would raise the minimum salary level for exempt employees to only $679 per week, or $35,308 annually. The Proposed Rule does have many similarities to the 2016 proposal, including:
- Allowing employers to count nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary level test (provided such bonuses are paid annually or more frequently);
- Increasing the total annual compensation requirement needed to exempt “highly compensated employees” to $147,414 annually (currently set at $100,000 annually); and
- Not proposing any changes to the standard duties test for the white collar exemptions.
If the Proposed Rule is adopted, the DOL estimates that over 1.3 million workers who are currently classified as “salaried exempt”—and thus, not eligible for overtime—will become eligible for overtime pay. While an increase, this figure is lower than the estimated 5 million workers who would have become eligible for overtime under the 2016 proposal. As with the prior proposal, observers feel the number could rise well above the projected increase. If implemented, the Proposed Rules will undoubtedly result in greater expense or operational change for many employers as they struggle to deal with a shrinking pool of workers who are eligible for an exemption from the overtime pay.
The Proposed Rule is still subject to a lengthy comment period before implementation. The DOL encourages any interested members of the public to submit comments about the proposed rule electronically at www.regulations.gov (Rulemaking docket RIN 1235-AA20).
Though the Proposed Rule has not yet been finalized, employers are encouraged to be proactive and engage their legal counsel to begin planning for the change now. Preparations should include auditing current practices and projecting the cost of change and FLSA compliance under the anticipated new framework. This includes evaluating the possibility and effects of significantly higher operating costs.
Matt Allen was recently recognized as one of Mississippi’s leading attorneys by the Mississippi Business Journal at the Leadership in Law Awards Ceremony. The men and women who have been chosen for this honor are recognized by their outstanding contributions that have increased the well-being of the community. The ceremony took place at the Old Capitol Inn in Jackson, Mississippi.
Matt is a litigator with Brunini and works on trials and appeals. He has received numerous recognitions for excellence in the practice of law in multiple practice areas from organizations such as Best Lawyers in America, Super Lawyers, Martindale-Hubbell, Benchmark Litigation, The Mississippi Business Journal, the American Society of Legal Advocates, and Portico Magazine. He has successfully litigated civil and criminal cases in state and federal courts in Mississippi and other states around the nation. He has represented clients through trials and appeals in matters related to commercial litigation, product liability litigation, mass torts, alleged white collar crime, the redistricting of the Mississippi legislature and the Voting Rights Act, public records issues, First Amendment litigation, and commercial tax assessment contests.
In November of 2018, Matt advanced to a runoff as a candidate for Hinds County Circuit Court Judge, garnering 46.30% of the vote as a first-time political candidate against a long-time state legislator. He is passionate about criminal justice reform and is studying towards a PhD in Criminal Justice. He is also a Contributing Fellow at the Mississippi Center for Public Policy. He clerked for the Honorable William H. Barbour Jr. of the United States District Court for the Southern District of Mississippi from 2004 to 2005.
Leonard A. Blackwell, II a partner at Brunini, Grantham, Grower & Hewes, PLLC, will be inducted into The Law Alumni Chapter of the Alumni Association of the University of Mississippi 2019 Law Alumni Hall of Fame at an Alumni Banquet held on March 30, 2019.
Leonard A. Blackwell, II, a graduate of the University of Mississippi School of Law, was nominated along with four others for the 2019 Law Alumni Hall of Fame. The Hall of Fame recognizes outstanding alumni of the law school who have, through their professional achievements and/or service to the school, brought honor to the law school.
Brunini’s Blackwell has been recognized by Best Lawyers in America® for Gaming Law, Land Use and Zoning Law and by Mid-South Super Lawyers® for Environmental Law. He was recognized as South Mississippi’s Top 10 Outstanding Community Leaders in 2012. Blackwell’s practice areas include construction, environmental law, gaming, governmental relations and real estate.
Brunini, Grantham, Grower & Hewes, PLLC has made the shortlist of Litigation Law Firm of the Year for Mississippi in the 2019 edition of Benchmark Litigation. Brunini is one of only four firms in Mississippi to achieve this honor, with the following attorneys ranked as “Mississippi Local Litigation Stars” in their respective practice areas:
• William Trey Jones III : Appellate, Commercial Litigation, Litigation – Environmental, Personal Injury and Product Liability
• R. David Kaufman: Commercial Litigation, Litigation – Environmental, Personal Injury and Product Liability
• Patrick McDowell: Appellate, Commercial Litigation, Litigation – Environmental, and Intellectual Property
Benchmark Litigation is a guide to America’s leading litigation firms and attorneys. Their results stem from the culmination of a research period that was conducted between March and November 2018, where researchers conducted interviews with litigators and their clients to identify the leading litigators and firms.
All winners will be announced at a ceremony held on Thursday, Feb. 28, 2019 at the Essex House in New York. For more information on Benchmark Litigation’s shortlist, please click here.
“E-Verify”—the U.S. Government’s federal electronic employment eligibility verification service—has “expired” due to a lapse in funding. As a result, the e-Verify site and its services are not functioning and will not be available to participating U.S. employers during the partial shutdown of the federal government that began December 22, 2018.
The U.S. Department of Homeland Security (DHS), the federal agency that oversees the program, reported that “information on this website may not be up to date. Transactions submitted via this website might not be processed and we will not be able to respond to inquiries until after appropriations are enacted.” As a result, DHS announced that the website (www.e-verify.gov) will not be actively managed and will not be updated until after funding is restored.
During the shutdown, U.S. employers will not be able to:
- Enroll in the program;
- Access their E-Verify accounts;
- Create a case;
- View or take action on any case;
- Add, delete or edit accounts; or
- Reset passwords, edit company information, terminate accounts, or run reports.
Conversely, workers will not be able to resolve any E-Verify Tentative Nonconfirmations (TNCs) during the shutdown. In addition, “myE-Verify” will be unavailable and employees will not be able to access their myE-Verify accounts.
To minimize the burden on both employers and employees, DHS announced that:
- The three-day rule for creating E-Verify cases is suspended for cases affected by the unavailability of the service.
- The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
As with prior shutdowns, additional guidance regarding the three-day rule and time period to resolve TNC deadlines will be provided once operations resume.
Employers will not be penalized for any delays in creating E-Verify cases. However, the shutdown does not affect an employer’s responsibility to verify employment eligibility. Employers must still complete the Form I-9 no later than the third (3rd) business day after an employee starts work for pay and comply with all other Form I-9 requirements.
As a result of the shutdown and the unavailability of E-Verify, participating employers are warned not to take any adverse action against employees while an E-Verify case remains in an unresolved status. Federal contractors with the Federal Acquisition Regulation (FAR)/E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.
January 2, 2019 is the last day of the Republican-controlled 2017-2018 Congress. Democrats take control of the United States House of Representatives, effective January 3, 2019.
The Mississippi Environmental Quality Permit Board (“Board”) convened its regular monthly meeting at 9:00 a.m. on October 9, 2018, at the offices of the Mississippi Department of Environmental Quality, in Jackson. James Hoffmann chaired the meeting.
The Board approved minutes from the August meeting and the non-controversial actions/ certifications completed by the staff since the August meeting.
Following a prepared agenda, items considered were as follows:
OFFICE OF GEOLOGY
Ron Porter (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:
Surface Mining Bond Releases
|W. S. Newell and Sons, Inc. Marshall||Marshall||P13-024||Final 10%|
|W. S. Newell and Sons, Inc. Marshall||Marshall||P13-025||Final 10%|
|W. S. Newell and Sons, Inc. Marshall||Marshall||P13-026||Final 10%|
|W. S. Newell and Sons, Inc. Marshall||Marshall||P14-007||Final 10%|
|Joe McGee Construction Co., Inc. Rankin||Rankin||P15-006||Initial 30%|
|Joe McGee Construction Co., Inc. Newton||Newton||P10-022||Initial 20%|
|Memphis Stone and Gravel Desoto||DeSoto||PO4-041||Additional 15%|
|Tanner Construction Company Tate||Tate||P10-026||Final 90%|
|Hammett Gravel Co., Inc. Yazoo||Yazoo||P08-027AA||Initial 10%|
Surface Mining Permits to Transfer
|DeSoto Services, LLC||Harrison||PO4-006AAT|
|DeSoto Services, LLC||Harrison||P93-051T|
|DeSoto Services, LLC||Harrison||P89-022T|
OFFICE OF POLLUTION CONTROL
D and E Construction Company Inc.: Reissuance and Modification of Coverage under the Mining Storm Water General Permit No. MSR320485, Lauderdale County. This agenda item was presented jointly with the accompanying Office of Geology Permit Board Item Surface Mining Permit Modification with Acreage Permit No. P95-071. The Board voted to postpone this agenda item until a later date to be determined.
OFFICE OF LAND AND WATER PRESENTATION
An overview of the Dam Safety Permitting Process was presented by Dusty Myers of the Office of Land and Water Resources, Dam Safety Division.
The next Permit Board meeting will be held on December 11, 2018, at 9 a.m.
This Newsletter is a publication of the Environmental Practice Group of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.
If you have any questions concerning the content of a newsletter, or if you would like further information about the matters addressed in a newsletter, please contact John Milner, the Brunini Firm Environmental Practice Group leader, at email@example.com or (601) 960-6842.
Six attorneys with Brunini, Grantham, Grower & Hewes, PLLC, were recently selected by their peers for inclusion in the 2019 edition of The Best Lawyers in America. Brunini lawyers were recognized in the following categories:
The following attorneys were chosen as the Lawyer of the Year:
- J. Gordon Flowers: Best Lawyers® 2019, Tupelo, Miss., Product Liability Litigation-Defendants
- Lynne K. Green: Best Lawyers® 2019, Jackson, Miss., Elder Law
- R. David Kaufman: Best Lawyers® 2019, Jackson, Miss., Bet-the-Company Litigation
- M. Patrick McDowell: Best Lawyers® 2019, Jackson, Miss., Litigation-Securities
- John E. Milner: Best Lawyers® 2019, Jackson, Miss., Environmental Law and Litigation-Environmental
- Walter S. Weems: Best Lawyers® 2019, Jackson, Miss., Mergers and Acquisitions Law