Maine DOL Proposes Rulemaking to Incorporate New Federal Overtime Rule

Earlier this month, the Maine Department of Labor announced proposed changes to its regulations that would align them to be consistent with changes being made to federal overtime regulations. The new federal overtime rule, which goes into effect on December 1, 2016, updates the salary threshold needed to qualify for the so-called “white collar” exemption under the federal Fair Labor Standards Act. That exemption applies to employees employed in a bona fide executive, administrative, or professional capacity.

In its notice of rulemaking, Maine DOL proposes to incorporate the changes in the federal overtime rule into its own rules so as to make them consistent with each other. The Maine DOL notes that these changes would include increasing the salary threshold to $913.00 a week for qualifying executive, administrative and professional exempt employees. The current salary threshold is $455 a week.

A public hearing on the proposed changes is scheduled for November 3, 2016, and the public may submit comments until noon on November 14, 2016. 

As noted in Maine DOL’s announcement, the new federal overtime rule will apply to employers throughout Maine beginning on December 1. Consequently, employers should not take Maine DOL’s recent rulemaking notice as a reason to delay implementing changes that may be required as a result of the new federal overtime rule.

DOL’s Persuader Rule Enjoined

Earlier this week, a federal district court in Texas granted a nationwide preliminary injunction that halts the Department of Labor's implementation of its Persuader Final Rule: Nat'l Fed'n of Indep. Bus. v. Perez (N.D. Tex. June 27, 2016). The development was welcome news for employers, who would have been required to comply with the Final Rule beginning July 1, 2016.

The Final Rule represents DOL's new interpretation of the so-called "advice exemption" under the Labor-Management Reporting and Disclosure Act (LMRDA). Under the LMRDA, employers are required to report relationships with labor consultants who are engaged to persuade employees on union activities. However, the LMRDA does not require employers to file reports when a consultant has been engaged to give "advice," which has been interpreted to include "indirect" persuasion activities. As a result, the advice exemption has historically limited an employer's reporting obligations to those situations when a consultant has been engaged to have direct contact with employees.

The Final Rule significantly narrows the advice exemption by requiring employers to report not only "direct" persuader activities, such as when a consultant is hired to speak with employees in the midst of a union campaign, but also "indirect" persuader activities, such as when a consultant is hired to prepare scripts for managers or otherwise coach supervisors on communications to employees.

The concern of many employers - and their consultants - has been that the Final Rule will stifle the ability of employers to obtain timely advice and will discourage consultants from providing many services, such as trainings and seminars on union matters, which could become subject to reporting requirements under the rule. The federal district court in Texas agreed. In addition to finding that the Final Rule likely infringes on employers' free speech and exceeds the DOL's rule-making authority, the court found that the rule essentially eliminates the advice exemption under the LMRDA and is therefore "defective to its core."

Under the court's ruling, the DOL is only preliminarily enjoined from implementing the Final Rule pending final resolution of the case, which could include any appeals by DOL. Consequently, although the Final Rule's implementation may no longer be imminent, it remains an issue that employers and their consultants must continue to monitor.

Revised Definition of "Spouse" Under FMLA Incorporates Same-Sex Marriages

The Department of Labor has issued a final rule that amends its FMLA regulations and provides employees in same-sex marriages the right to take leave to care for a spouse with a serious medical condition.  The new rule, published on February 25, 2015, comes on the heels of the Supreme Court’s decision in United States v. Windsor, which declared as unconstitutional a provision of the Defense of Marriage Act limiting the definition of “spouse” to opposite-sex marriages.

The most significant aspect of the new rule is that spousal status is now determined based on the place where an employee entered into marriage, or the “place of celebration.”  Previously, the DOL had determined spousal status based on a “place of residence” rule, which effectively deprived same-sex employees from qualifying as a spouse if they lived in a jurisdiction where same-sex marriages were not recognized.  Under the new rule, and according to the DOL, the “place of celebration” rule will allow all legally married couples to have uniform rights regardless of where they live.

The DOL’s comments to the new rule suggest that employers should see a decrease in administrative burdens under the new rule.  To the extent this is true, it will probably be most apparent for multi-state employers, who will not have to “consider the employee’s state of residence and the laws of that State in determining the employee’s eligibility for FMLA leave.”