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So – You Guys Ready for the New FLSA Regulations? Because I’m Not . . .

As you know, the Fair Labor Standards Act establishes two types of employees – exempt and non-exempt. Traditional “exempt” employees have “white collar” job duties. These are your executive, professional and administrative folks. These guys are not out performing manual labor, punching a clock or working on a line. Also – they have to be paid at least $23,660 per year ($455 per week), regardless of the number of hours they work each week.
Traditional “non-exempt” employees are basically . . . well – everyone else. “Non-exempt” folks must be paid at least the minimum wage, as well as an overtime rate for all time worked in excess of 40 hours in a single work week. Generally, OT is calculated at not less than time and one-half of a “non-exempt” employee’s standard hourly rate.

However, the foregoing is all about to change. Maybe.

Specifically, the DOL wants to increase the salary requirements for exempt employees, using the 40th percentile of weekly earnings of full-time salaried workers as a benchmark. If this proposal became law over the next six weeks, in 2016, the estimated salary requirements would be $970 a week, or $50,440 a year. Yikes.

So is this law yet? No. Is there a realistic possibility these regulations – as currently constructed – will become law? Probably not to the letter. But it won’t be surprising if the final regulations look a lot like what’s being discussed. Bottom line – the minimum salary level for exempt employees is going up. By a lot. Soon.
The solution is obvious. Just pay everyone about $500K a year. The DOL won’t bat an eye. I’m sure you can shoehorn that into your 2016 payroll . . .

Luke Lindberg
November 20, 2015

Employment Law Update

Retaliation:  What all Employers Need to Know

  • Since 2011, retaliation claims have increased at a higher rate than any other type of EEOC charge.
  • Retaliation claims allege that an employer took an adverse action against an employee (e.g., termination, demotion, suspension) because he/she engaged in a “protected activity”.
  • What is a “protected activity”?

An employee engages in a protected activity whenever he/she files an internal complaint alleging discrimination and/or harassment, files an EEOC charge or testifies in favor of another employee who filed a lawsuit or EEOC charges alleging unlawful harassment and/or discrimination.

  • Why plaintiff’s employment lawyers love retaliation claims:
    • Retaliation claims are easier to prove that discrimination and/or harassment claims because proving the truth of the underlying harassment and/or discrimination charges is not required.
    • Retaliation claims result in higher jury verdicts and frequently result in substantial punitive damage awards.
  • The chronology underlying a retaliation claim may make it difficult to defend.  For example, if a termination comes hard on the heels of protected activity, the employer can expect to defend the retaliation claim inside its own 20 yard line.
  • Risk management of retaliation claims.

Nearly every federal and state statute governing the employment relationship prohibits retaliation against an employee when he/she engages in protected activity under the statute.  Accordingly, employers contemplating termination of an employee who has engaged in protected activity whether by filing a workers’ compensation claim, a whistleblower complaint or a complaint regarding the Fair Labor Standards Act or filing a complaint or charge alleging unlawful discrimination and/or harassment should review the facts with employment law counsel before terminating the employee in question.

If you have questions, please contact Carl Muller ( or Luke Lindberg ( for further information.


Business and Corporate Law

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