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U.S. Department of Labor Unveils Newest Effort to Expand Employee Overtime Eligibility

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To borrow a phrase from the incomparable Yogi Berra, “[i]t’s like déjà vu all over again.” On Wednesday, August 30, 2023, 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.  Entitled Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, the Proposed Rule seeks to dramatically increase the standard salary level and the highly compensated employee total annual compensation threshold, as well as providing a built-in updating mechanism that would allow for automatic updating of all the thresholds.

 

New 2023 Proposed Rule

Under its new Proposed Rule, the DOL seeks to significantly raise the exempt salary threshold from $684 per week to $1,059 per week.  Stated another way, U.S. employees would need to earn $55,068 or more per year to be exempt from overtime pay – a change the agency says would impact 3.6 million workers who are currently exempt from overtime eligibility.  Additionally, the new Proposed Rule would make the following changes:

  • Automatically update the salary threshold every three (3) years.
  • Raise the threshold for the “highly compensated employee” exemption to $143,988 (from the current threshold of $107,432).
  • Apply salary thresholds in U.S. territories that are subject to federal minimum wage with some exceptions for American Samoa.

The Proposed Rule seeks to update the regulations that govern 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 (1.5x 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”:

  • 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;
  • The amount of salary paid must meet a minimum specified amount; and
  • The employee’s job duties must primarily involve executive, administrative, or professional duties (as defined by the regulations).

 

Stroll Down Memory Lane

Until rather recently, the DOL’s last update to these regulations came in 2004, when the agency set the minimum salary threshold at $455 per week (or $23,660 per year).  Then, in May 2016, the Obama-era DOL kicked off a highly-contentious legal fight when it attempted change to the overtime rule by nearly doubling the minimum salary level from $23,660 to nearly $48,000 per year.  At the same time, the 2016 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.

Ultimately, the Trump-era DOL formally rescind the Obama-era DOL’s 2016 proposal with its own new Proposed Rule, issued on March 7, 2019.  The Trump-era Proposal was formally adopted in 2020.  With its passage, the DOL officially raised the minimum salary level for exempt employees to $679 per week, or $35,308 annually—the level it currently sits at today.  Additionally, the 2020 rule change allowed employers to count nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10% of the standard salary level test (provided such bonuses are paid annually or more frequently); and increased the total annual compensation requirement needed to exempt “highly compensated employees” to $107,432 annually.  Additionally, the 2020 rule change did not adopt any changes to the standard duties test for the white collar exemptions.

 

Moving Forward

Make no mistake—the DOL’s goal with the new Proposed Rule is to increase the number of employees eligible for overtime. As with the prior proposals, observers feel the number could rise well above the projected increase.  If implemented, the Proposed Rule 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.

This newest Proposed Rule from the DOL is sure to face its own set of legal hurdles, especially in the face of an election cycle.  Experts predict another battle over whether or not the DOL actually possesses the statutory authority to issue a salary-basis or salary-level test.  The Proposed Rule is also still subject to a lengthy comment period before any final implementation.

In the meantime, 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.

Brunini’s Labor & Employment specialists are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

 

 

 

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Federal Government Releases New Form I-9 for U.S. Employers

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Federal Government Releases New Form I-9 for U.S. Employers

By:  Chris Fontan

 

On August 1, 2023, the U.S. Citizenship and Immigration Services (“USCIS”) released its newest version of the federal Form I-9.  U.S. employers are allowed to continue using the previous version of the Form I-9 through October 31, 2023.  However, starting on November 1, 2023, all employers are required to use this new, updated form.

 

Updates to the Form I-9

The USCIS made a number of material changes to the Form I-9 with this latest update, including:

  • Reducing Sections 1 and 2 to a single page; previously, these sections took up two pages.
  • Relocating Section 1 (Preparer and/or Translator Certification area) to a separate, standalone supplement for employers to provide to its applicants or employees as needed.
  • Revising the Lists of Acceptable Documents page—for use with Section 2—to include:
    • Adding some acceptable receipts, and
    • Providing guidance and links to information on automatic extensions of employment authorization documentation
  • Moving Section 3 (Reverification and Rehire area) to a standalone supplement for employers to utilize as needed.
  • Including a checkbox that allows employers to indicate that they have examined an applicant’s/employee’s Form I-9 documentation remotely pursuant to newly authorized virtual procedures (as opposed to traditional physical examination).

 

The updated Form I-9 virtually cuts its instruction section in half, reducing it from fifteen pages down to eight pages.  Additionally, the form has also been re-designed to be fillable on mobile devices, such as tablets and other smart phones.

 

Remote Verification

 

The biggest change with the new Form I-9 is the ability for employers to indicate they “virtually” examined an applicant’s/employee’s identity and employment authorization documents—as opposed to the traditional method of reviewing these documents in person. To participate in the remote examination option, employers must:

 

  • Be enrolled in E-Verify and be in good standing,
  • Examine and retain “clear and legible” copies of all documents,
  • Conduct a live video interaction with the employee during the verification process, and
  • Create an E-Verify case if the employee is a new hire.

 

Employers who were participating in E-Verify and created cases for employees whose documents were examined virtually between March 20, 2020, and July 31, 2023, may choose to use the new alternative procedure to satisfy the physical document examination requirement by August 30, 2023. Note however, that employers who were not enrolled in E-Verify during the COVID-19 flexibilities time frame must complete an in-person physical examination by August 30, 2023.

While the new Form I-9 is shorter and more streamlined, employers and job applicants are advised to use caution.  While the Form I-9 began as a one page document, it has existed as a multi-page form for over a decade.  As a result, experts fear that employees or employers will accidentally supply information for each other’s sections, which is prohibited under federal law. In addition, there is an increased likelihood that employees and employers will make more mistakes in completing the document, which could lead to serious consequences since individuals execute the Form I-9 “under penalty of perjury.”

 

In addition, questions also remain concerning the remote verification option.  For example, how and where should employers note whether employees that went through remote verification over the prior three years have brought in new documents?  Do employers need to document and retain proof of the video call required for virtual review on file?  Employers are advised to remain alert for further guidance on these and additional issues from USCIS in the coming months.

 

Brunini’s Labor & Employment specialists are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

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Mississippi Environmental Quality Permit Board

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Summary of Meeting Held July 12, 2022

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on July 12, 2022.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on June 14, 2022 and the non-controversial actions/certifications completed by the staff since the January meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

James Matheney (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
Eutaw Construction Company Panola P16-016 Additional 15%
Ausburn Construction Company, Inc. Oktibbeha P16-002 Initial 80%

Surface Mining Transfer

Permittee County Permit
Holden Earth Moving to  419 Development Group Harrison P02-045TAT
Baldwin Sand and Gravel to LNC Services, Inc. Panola P12-019AT

 Permit to Rescind

Permittee County Permit
DDB Construction Hinds P14-016

 Other Business

Roy Furrh, MDEQ Chief Counsel, provided there was no other business other than a reminder of the next Permit Board meeting, which will held on August 9, 2022, 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 jmilner@brunini.com or (601) 960-6842.

Mississippi Environmental Quality Permit Board Summary of Meeting Held March 8, 2022

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on March 8, 2022.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on February 8, 2022 and the non-controversial actions/certifications completed by the staff since the January meeting. Then, following a prepared agenda, the Board considered items 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 Release

Permittee County Permit Staff Recommendation
Talbot Brothers Grading Company Grenada P12-007 Final 40%

 

Surface Mining Transfer

Permittee County Permit
D. Murray Properties, LLC to Dirt, Inc. Harrison P21-003

 

Other Business

Roy Furrh, MDEQ Chief Counsel, provided there was no other business other than a reminder of the next Permit Board meeting, which will held on April 12, 2022, 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 jmilner@brunini.com or (601) 960-6842.

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Mississippi Environmental Quality Permit Board

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Summary of Meeting Held February 8, 2022

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on February 8, 2022.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on January 11, 2022 and the non-controversial actions/certifications completed by the staff since the January meeting. Then, following a prepared agenda, the Board considered items 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 Release

Permittee County Permit Staff Recommendation
Joe McGee Construction Company, Inc. Newton P10-022 Final 80%
Joe McGee Construction Company, Inc. Rankin P18-14 Initial 70%
Oddee Smith Construction, Inc. Lincoln P08-029 Additional 30%
Parker Sand & Gravel Lowndes P17-002 Initial 90%

 

James Matheny (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:

 

Surface Coal Mining Bond Release

Permittee County Permit
Liberty Fuels Kemper MS-003

 

Other Business

Roy Furrh, MDEQ Chief Counsel, reminded the Permit Board members that they need to complete their annual compliance forms; statement of economic interest forms and EPA conflict forms.

Mr. Furrh noted that he has sent a copy of Gold Coast Commodities, Inc.’s revocation to the Board.

Next, Mr. Furrh informed the Board that the parties involved in the Jimmy Le d/b/a Le Poultry application have voluntarily dismissed the appeal and that Jimmy Le d/b/a Le Poultry has sold the property.

Finally, Mr. Furrh briefly discussed Senate Bill 2087 (Open meetings law for public bodies; require all official meetings to be broadcast via video livestream applications).  This Bill was introduced by Senator Boyd would affect the Board if it passes.

The next Permit Board meeting will be held on March 8, 2022, 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 jmilner@brunini.com or (601) 960-6842.

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Mississippi Enacts New Medical Marijuana Law

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By:  Kyle Williams and Chris Fontan

After months of political maneuvering, including a state-wide ballot initiative and Supreme Court challenge, Mississippi has joined 36 other states in enacting its own medical marijuana program.  On February 2, 2022, Governor Tate Reeves signed Senate Bill 2095, the Mississippi Medical Cannabis Act, (the “Act”) into law. The Act regulates the cultivation, processing, and dispensing of medical cannabis and authorizes physicians, certified nurse practitioners, physician’s assistants, and optometrists to certify patients for cannabis use—up to three ounces per month—to treat numerous “debilitating medical conditions.”

The Mississippi Department of Health will administer the program outlined within the Act and will enact regulations governing medical cannabis cultivators, processors, transporters, medical practitioners, and testing and research facilities. The Act tasks the Department of Revenue with regulating and licensure of cannabis dispensaries.

As more Mississippians are issued “written certifications” to obtain and use medical cannabis, employers will be forced to navigate this emerging area of the law.  As written, the Act contains many provisions favorable for the state’s employers.  For example, the 445-page Act in no way prohibits or limits an employer’s ability to establish or enforce a drug testing policy, nor does it require an employer to allow or accommodate the use of medical cannabis or to modify any job or working conditions of any employee who engages in the use of medical cannabis.  More specifically:

  • Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual with respect to terms, conditions, or privileges of employment as a result of that individual’s medical use of medical cannabis—regardless of the individual’s impairment or lack of impairment resulting from the medical use of medical cannabis.
  • Similarly, the Act does not create a private right of action by an employee against an employer for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against that employee with respect to terms, conditions or privileges or employment due to the individual’s medical use of medical cannabis.
  • Employers may discipline employees who use medical cannabis in the workplace or who work while under the influence of medical cannabis.

However, employers must comply with other state and federal laws that might be implicated.

The Act also amends Mississippi’s workers’ compensation laws to account for medical cannabis use.  Notably, the Act does not affect, alter or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace program in accordance with Miss. Code §§ 71-3-201 et seq.  In addition, the Act does not impact an employer’s right to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test, as provided under Miss. Code §§ 71-3-7 and 71-3-121.

We will continue to monitor the implementation of Mississippi’s new medical cannabis program and the forthcoming regulations being promulgated by the Departments of Health and Revenue.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

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U.S. Supreme Court Clears Way for CMS’s Mandatory-Vaccination Rule to Proceed

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By: Claire Williams and Chris Fontan

On January 13, 2022—the same day that it blocked a Vaccination-or-Testing mandate issued by the Occupational Safety and Health Administration (“OSHA”)—the U.S. Supreme Court cleared the way for enforcement by the Centers for Medicare & Medicaid Services (“CMS”) of its rule requiring COVID-19 vaccinations for more than 10 million healthcare workers.

In a 5-4 opinion, the Court lifted two previous injunctions blocking CMS’s rule that was issued in November 2021 by the Secretary of Health and Human Services (“HHS”). The CMS Rule provides that, in order to receive Medicare and Medicaid funding, participating healthcare facilities must ensure that their staff are fully vaccinated against COVID-19, unless otherwise exempt for medical or religious reasons.  A facility’s failure to comply with the CMS Rule can lead to monetary penalties, denial of payment for new admissions, and ultimately termination of participation in the Medicaid and Medicare programs.

In its per curiam opinion, the Court held that that the CMS Rule falls within the authorities that Congress conferred upon the HHS Secretary.  In so holding, the Court stated that “the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.” Justice Thomas authored a dissenting opinion, which was joined by Justices Alito, Gorsuch, and Barrett.

With the injunctions lifted, covered healthcare facilities need to ensure they are in compliance with the CMS Rule, including CMS’s most recent guidance. Most pressingly, covered healthcare workers must have at least one COVID-19 vaccine by January 27, and a second vaccine by February 28.

Notably, the Court’s opinion is on the district court injunctions, and not on the merits of each case.  Two separate court challenges to the CMS vaccine mandate remain.  With its ruling, the Supreme Court stayed the earlier injunctions pending disposition of the appeals in the United States Courts of Appeals for the Eight and Fifth Circuit.

We are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

 

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U.S. Supreme Court Blocks OSHA’s Vaccine-or-Test Rule for Large Employers

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By: Claire Williams and Chris Fontan

On January 13, 2022, the Supreme Court of the United States re-instated a nationwide stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  The Court’s stay of OSHA’s ETS prevents OSHA from enforcing the standard, which officially went into effect on January 10, 2022.

In a per curiam opinion, the Court held that emergency relief from the ETS is warranted because the applicants, including 27 states, are likely to prevail on their argument that OSHA’s ETS exceeds its statutory authority and is unlawful.  The Court reasoned that “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”  The Court went on to state that “requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

Justice Gorsuch authored a concurring opinion, which was joined by Justices Thomas, and Alito.  Justices Breyer, Sotomayor and Kagan dissented.

The Supreme Court’s stay remains in place pending further litigation and a ruling on the merits of the petitions for review in the United States Court of Appeals for the Sixth Circuit.  However, given the limited shelf-life of the ETS itself and the language used by the majority of the Justices, many feel that the Supreme Court’s decision on the stay ultimately seals the fate of the ETS.   We are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

 

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Mississippi Environmental Quality Permit Board Summary of Meeting Held January 11, 2022

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Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on January 11, 2022.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on December 14, 2021 and the non-controversial actions/certifications completed by the staff since the December meeting. Then, following a prepared agenda, the Board considered items 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 Release

Permittee County Permit Staff Recommendation
Wet Mine Assets Holding, LLC Hancock P04-008AT Additional 10%
WG Yates & Sons Construction Jackson P87-045T Final 20%

 Other Business

Roy Furrh, MDEQ Chief Counsel, reminded the Permit Board members that they need to complete their annual compliance forms; statement of economic interest forms and EPA conflict forms.

Mr. Furrh also stated that the February 8, 2022 Permit Board Meeting will probably be in person.

The next Permit Board meeting will be held on February 8, 2022, 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 jmilner@brunini.com or (601) 960-6842.

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U.S. Supreme Court Hears Oral Argument on OSHA’s Vaccine-or-Test Rule for Large Employers

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By: Chris Fontan

In a rather unprecedented proceeding, all nine justices of the U.S. Supreme Court heard oral arguments on Friday, January 7, 2022 concerning legal challenges to the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  Specifically, challengers comprised of private entities and state attorneys general argue that OSHA overstepped its statutory authority when it issued the ETS requiring employers with at least 100 employees to mandate either vaccinations, or masking and weekly testing for workers.

As previously reported, a three-judge panel of the United States Court of Appeals for the Sixth Circuit previously dissolved a stay of the ETS, allowing OSHA to proceed with enforcement of the ETS’ mandates.  Within several hours of that decision, multiple parties, including 27 states, filed emergency motions with the Supreme Court seeking to block the ETS and requesting an emergency stay of its enforcement.  Justice Brett Kavanaugh took the rather unprecedented action of not unilaterally deciding the immediate stay issue himself, but instead referring this stay request to the full Court.

While it is always dangerous to predict the actions of the Court based solely on the questions asked during oral argument, many legal commentators initially speculate that the conservative majority of the Court seems primed to ultimately enjoin the ETS on the basis that it is too broad and not clearly authorized by Congress.  Decisions in the cases are expected soon, perhaps as early as over the weekend or by Monday, January 10. Timing is, of course, important as the first requirements of the ETS—everything but the weekly testing requirements—are set to take effect Monday, January 10, unless the Court acts before then to block them. The remaining testing requirements are slated to take effect Wednesday, February 9, 2022.

We are monitoring these events and will keep you posted.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

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