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On-Site Seminar:
Dallas, Texas | Thursday, March 26, 2020
BLR’s Wage and Hour Master Class features an all-new agenda on how
to tackle the latest compliance challenges stemming from
miscalculations of pay, compensation planning practices, salary
communication missteps, and more, such as:
The Department of Labor (DOL) Wage and Hour Division’s (WHD) final
overtime exemption rule overhaul, which goes into effect soon
Updates on pay equity legislative trends and the practical impact of
Congress’ proposed Paycheck Fairness Act and WAGE Equity Act
The increased risk of class and collective actions under the Fair
Labor Standards Act (FLSA), which could result in financial liability
into the millions of dollars
The latest prohibitions on requests for applicants’ salary history
How to maneuver sensitive salary communication conversations that you
should have when converting exempt workers to nonexempt status
How bonuses factor into the new salary threshold for overtime
exemption
How to correctly calculate overtime pay in compliance with applicable
FLSA overtime regulations
How to analyze required duties tests for each job to ensure that your
employees meet the salary and duties tests required for overtime
exemption
How to minimize the risk of EEOC, OFCCP, or private lawsuits alleging
unfair pay practices by conducting a comprehensive pay equity audit
that corrects disparate compensation practices while preserving the
all-important “privilege”
How to determine groupings for compensation analysis by job title, job
family, pay grade, and overtime exemption status
An examination of no-poaching agreements which prevent franchisees
from employing current or recent former employees of the franchisor or
other franchisees, without consent of the current or recent former
employer
Top FLSA timekeeping, hours of work, and recordkeeping pitfalls to
avoid and stay off state DOL and federal WHD enforcement officers’
radars
MASTER CLASS AGENDA
Registration
7:30 a.m. – 8:30 a.m.
Grab a cup of coffee from our refreshment station, get situated, and
get ready to learn!
Federal Regulatory, Legislative, and Court Ruling Hot Spots: The
Practical Impact of New Standards, Rules, and More
8:30 a.m. – 9:15 a.m.
The financial stakes are huge if your company isn’t fully compliant
with the Fair Labor Standards Act (FLSA) and applicable Department of
Labor (DOL) regulations. It is even more crucial now that the DOL has
released its final rule that will increase the salary threshold for
overtime exemptions to $35,568 annually (up from $35,308 in the
proposed rule). Also, the Paycheck Fairness Act passed in the House of
Representatives in March 2019. The ultimate fate of this pay equity
legislation in the Senate remains to be seen, but the fact is that the
legislation mimics laws already in place and being considered in
cities and states across the country. And, there’s more cause for
concern: Congress’ proposed WAGE Equity Act has been presented as an
alternative to the Paycheck Fairness Act, so it’s likely some form
of new pay equity legislation will become law at the national level.
Also, there are newly proposed regulations on calculating the regular
rate of pay and joint employer situations, as well as court rulings
that are cause for concern for employers nationwide.
This opening session will provide a succinct summary of:
The timeline for implementation on the DOL’s final overtime
exemption rule and what the rule does and doesn’t do
What Congress’ Paycheck Fairness Act seeks to do, and the practical
implications it would present for employers
How the WAGE Equity Act differs from the Paycheck Fairness Act and
why, regardless of what federal legislation ultimately become law, now
is the time to ensure compensation practices are equitable and fair
Where state legislation banning employers from inquiring as to
applicants’ salary history has already gone into effect and where
new legislation is expected to pass
The DOL’s final rule providing clarification on how to determine
employees’ regular rate of pay and what forms of payment employers
can include and exclude in the overtime pay calculation
The increased risk of liability for employers under the FLSA for
collective and class actions and more
The DOL’s proposed rule on joint employment which aims to ensure
employers in joint employment situations, especially those in
franchise arrangements, clearly understand their responsibilities to
pay workers at least the federal minimum wage and overtime
How no-poaching clauses in franchise agreements could pose legal risks
related to raises, opportunities for employee advancement, and other
employment issues for employees working at franchised locations
The latest examples of costly settlements and judgments related to
organizations’ federal wage and hour violations
Overtime Eligible or Not Under the DOL’s New Overtime Rules? Part I:
Preparing for the Increased Salary Threshold for Exemption with a
Comprehensive Strategy for Addressing Salary Communication Issues and
More
9:15 a.m. – 10:30 a.m.
Now that the DOL has finalized its overtime exemption rule, you need
to ensure you’re in compliance. This session is designed to boil
down the practical impact the DOL’s final overtime exemption rule
has on companies operating in the United States. Wage and hour
attorneys will walk you through what to do and how to ensure that your
organization has a solid game plan so you’ll be ready for the salary
threshold adjustments that need to be made.
You’ll learn:
Key salary factors to consider when determining whether an employee is
exempt or nonexempt including salary level, the salary basis test,
additional payments beyond an employee’s salary, and fee basis
payments
Timekeeping issues for salaried exempt employees – can you track
their hours and set specific hours for them to work?
Which exemptions are not subject to the salary requirements
How the DOL’s final overtime exemption rule differs from the
Obama-era rule that a court struck down in 2016, and the practical
impact of the new annual salary threshold
The final rule’s impact on salaries of highly compensated employees
How often the DOL will update the salary level going forward, and the
fate of automatic update
How bonuses will factor into the salary threshold for exemption
Cost-minimizing strategies for when it makes more sense to re-classify
employees as nonexempt or raise employee salaries to meet the new
threshold
How deductions from pay enter into your analysis
How the new developments impact compensation planning generally
How to develop a communication plan to clearly explain to employees
what’s changing with respect to their overtime exemption status and
why, and how to ensure that supervisors and managers have the
information they need to effectively communicate the practical impact
of changes to their direct reports
What key information to convey to employees—and how to make sure
they understand what will now be required in terms of tracking hours
How to head off concerns that going from exempt to nonexempt status is
a demotion
Networking Break
10:30 a.m. – 10:45 a.m.
Overtime Eligible or Not Under the DOL’s FInal Overtime Rules? Part
II: Navigating the Duties Tests to Cost-effectively Determine Which
Employees Should Be Exempt and Nonexempt
10:45 a.m. – Noon
How many of your employees should be switched from the exempt to
nonexempt classifications due to the DOL’s final increase in the
salary threshold? How can your company continue to control overtime
costs while remaining in compliance with the FLSA? How should you go
about exempting an employee from overtime under the DOL? In addition
to passing the salary level test and the salary basis test, an
employee must also pass the duties tests for either the executive,
administrative, professional, computer employee, or outside sales
exemptions to be considered exempt from overtime. Some employers adopt
a “head in the sand” approach to the FLSA, gambling that their
questionable pay practices won’t be discovered. Such employers
mistakenly assume that because business is good and employees seem
satisfied with their compensation, they have nothing to worry about.
But remember: all it takes is one disgruntled employee to visit a
competent plaintiff’s attorney or make a complaining phone call to
the DOL, and it’s off to the races, your pay practices will be open
to dissection by the DOL, a judge, or even a jury. Under the DOL’s
final overtime rules, companies will have to analyze the required
duties tests for each job to ensure that their employees meet the
salary and duties tests required for exemption. And also, employers
should periodically review the duties of all exempt employees to
ensure that they still qualify for exempt status down the line.
You’ll learn:
Where the duties tests stand now that the DOL has issued its final
rule on overtime exemptions
Key test factors to determine whether an employee passes the duties
tests for the executive, administrative, professional, computer
professional, and outside sales exemptions, as well as employees in
education
Whether you should change an employee’s duties to qualify the
employee for either the exempt or nonexempt classification
How important job titles are when it comes to passing the duties tests
Why some employees labeled as “managers” and “assistant
managers” may be nonexempt and entitled to overtime in the DOL’s
eyes
Tips for avoiding a DOL overtime audit
Networking Lunch (provided)
Noon – 1:00 p.m.
The Ins and Outs of Calculating Overtime in Compliance with the
Proposed Overtime Regulations
1:00 p.m. – 1:30 p.m.
Overtime calculations can get tricky when employees are paid a salary
but work over 40 hours, or they work a different number of hours each
week, or they are paid a piece rate or commission. Now that more
employees will likely fall into the nonexempt classification under the
DOL’s final overtime rule changes, it is important to make sure the
newly nonexempt are properly tracking their time. These scenarios can
end up costing employers millions when they fail to correctly pay
overtime. It is vitally important for employers to make confident and
correct calculations.
You’ll learn:
What a “workweek” is under FLSA rules
The proper timing of overtime pay
When compensatory time can be used legally
How payment on an hourly basis, salaried basis, and at different
hourly rates differ
Key factors regarding fluctuating workweeks
Payment rules for piece rate and day rate employees
How commissions factor into overtime payments
The rules that apply to fire protections and law enforcement personnel
What to include when determining total compensation
Pay Equity Audits: How to Analyze and Correct Disparate Compensation
Practices by Analyzing Groupings by Job Title, Job Family, Pay Grade,
and Overtime Exemption Status and More
1:30 p.m. – 2:30 p.m.
Equal pay is hot—and pay discrimination claims are on the rise. In
the past two years, more than a dozen states and several major cities
have passed new, aggressive equal pay laws designed to make it easier
for employees to bring (and win) pay discrimination claims. This
growing “patchwork” of federal, state, and local laws poses
particularly worrisome challenges especially for multistate employers.
For instance, how can multistate organizations comply with different
and often contrasting laws from state to state? How can organizations
proactively address pay equity issues before being targeted for
internal complaints, EEOC charges, OFCCP investigations, and the
growing wave of private litigation? Also, how can an organization find
and fix the unexplained disparities that lurk within our pay systems?
And, can an organization do this all “under privilege” so it
doesn’t have to turn over its efforts in discovery in response to
demands from increasingly savvy plaintiffs’ counsels and enforcement
agencies? This session will outline how to take a proactive and
strategic approach when addressing the growing pay equity challenges
your organization faces.
You’ll learn:
How two major federal statutes prohibiting gender-based differences in
pay—the Equal Pay Act of 1963 (EPA) and Title VII of the Civil
Rights Act of 1964 (Title VII)—could spark costly legal liability
for your organization
The growing patchwork of new state and big-city equal pay laws and
what they mean practically for your company
How to take advantage of the “safe harbors” under many new state
equal pay laws to protect your organization from claims and liability
How to conduct a review of your company’s wage-setting practices to
find and fix unexplained disparities so you can get your compensation
planning practices on the right—legal—track
How to establish the all-important privilege for your pay equity audit
How to determine groupings for analysis by job title, job family, pay
grade, and overtime exemption status
Examples of ‘similarly situated’ and ‘comparable’
positionsFactors you must consider, including date of hire, legacy
data, time in grade, and more
Running the numbers for large, medium, and small groups—when to
apply regression analysis and when something else is needed
What to do if you can’t explain a pay disparity
Tips for avoiding claims of gender-based wage discrimination
Networking Break
2:30 p.m. – 2:45 p.m.
FLSA Timekeeping, Hours of Work, and Recordkeeping Mythbusters: Top
Pitfalls for Staying Off State DOL and Federal WHD Enforcers’ Audit
Radars
2:45 p.m. – 4:15 p.m.
There is no federal law that sets out how often or in what form you
must pay wages, but you have a lot of other issues to contend with.
For example, how do you pay employees who work 24-hour shifts, but
sleep during the shift? If an employee shows up for work early, do you
have to pay the employee? What do you do with employees who forget to
punch in? What about for those who travel for work after hours? This
session will put to rest myths that could be exposing your company to
costly liability.
We’ll cover important issues such as:
Tracking time, punching in and out, rounding, and the de minimis rule
What counts as hours worked
On-call time
Meal and rest periods
Sleep time
Commuting and travel time
Waiting time
Training time
Changing clothes
Pre/post work time, including time spent in post-shift security
screenings
Charitable/civic activities
Permissible and impermissible pay deductions for nonexempt employees
Examples of when partial-day pay deductions are permitted for exempt
staff
Predictive scheduling laws
Minimum wage requirements under your state’s law(s), including
examples of how tip pools/credits could land employers in hot water
Final paychecks—common pitfalls to watch out for and mistakes that
could cost you under your state’s applicable law(s)
Recordkeeping
Final Questions and Answers
4:15 p.m. – 4:30 p.m.
We’ll wrap up the day by giving you the opportunity to get your
specific questions answered by attorneys well-versed in the
complexities of wage and hour compliance, with clear instructions for
adjusting your practices in light of the very latest legal
developments.
OUR TEXAS FACULTY ATTORNEYS WITH WITH JACKSON LEWIS P.C.
DANIELLE ALEXIS MATTHEWS
Danielle is a Principal in the Dallas, Texas, office of Jackson Lewis
P.C. Her practice focuses on representing employers in workplace law
matters, including preventive advice and counseling.
KATRIN U. SCHATZ
Katrin is a Principal in the Dallas, Texas, office of Jackson Lewis
P.C. Her practice includes general employment litigation, affirmative
action compliance, disability, leave and health management.
CLAIRE COOK
Claire is an Associate in the Dallas, Texas, office of Jackson Lewis
P.C. Her practice focuses on representing employers in workplace law
matters, including preventive advice and counseling.
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