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Two Rules Poised for Implementation in 2016

Date Published: 12/16/2015

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DOL Overtime Pay Update

On June 30, the U.S. Department of Labor (DOL) released a much-anticipated proposed rule change that would increase employer overtime obligations for an estimated 5 million employees - seeking to increase the minimum salary threshold to $970 per week (the equivalent of $50,440 annually) for "white collar" executive, administration, professional and computer employees.

As expected, the proposed rule generated a significant amount of comments - more than 250,000 - from employers and other stakeholders. The Obama administration has now indicated the highly controversial rule will not be issued before July 2016. But DOL officials have indicated that the rule is likely to be issued sometime closer to the end of the year while still leaving time for the rule to take effect before the president leaves office.

Click here to review the provisions of the proposed rule.

Keep in mind that a late 2016 publication/issuance date will likely create a short window for employers to comply. The effective date of the new regulations likely will not exceed 30 to 60 days after the final regulations are published. As a result, employers should consider the effect this proposed rule may have to their employment practices and bottom lines, and make preparations now to comply.

DOL's "Persuader" Rule Submitted to OMB for Review

The Department of Labor (DOL) confirmed last week that it has submitted its proposed revisions to the  "Persuader" Rule to the Office of Management and Budget for review. The proposed regulations - much-maligned by businesses, management and the American Bar Association - propose changes to the long-standing disclosure requirements under the Labor-Management Reporting and Disclosure Act (LMRDA or the Act). The Act applies to unions, union members, employees who work under collective bargaining agreements, employers, labor relations consultants, surety companies, trusts in which a union is interested and other "persons" as defined in the law who may be covered by the Act's provisions.

Under the LMRDA, employers are required to report to the DOL (on Forms LM-10 or LM-20) all consultants and attorneys from whom the employer receives advice regarding unionization in its workplace. Since 1959, there has been an Advice Exemption that excludes the disclosure of communications where an attorney or consultant has no direct contact with employees and limits his or her activity to providing employers or supervisors with advice or materials for use which the employer may utilize or reject. Under the Persuader Rule changes, such disclosures of advice must include any "indirect activity" by attorneys or consultants. These disclosures must be made even if a company's legal counsel and/or consultant(s) speak only with management. Specifically, the proposed changes would require, by law, the disclosure of the following thirteen new categories of information:

  • Drafting, revising or providing written or multimedia materials for presentation, dissemination or distribution to employees.
  • Drafting, revising or providing a speech for presentation to employees.
  • Drafting, revising or providing website content for employees.
  • Planning or conducting individual or group employee meetings.
  • Developing or administering employee surveys concerning union awareness, sympathy or interest.
  • Training supervisors or employer representatives to conduct individual or group employee meetings.
  • Coordinating or directing the activities of supervisors or employer representatives.
  • Establishing or facilitating employee committees.
  • Developing HR policies or practices.
  • Deciding which employees to target for persuader activity or disciplinary action.
  • Conducting a seminar for supervisors or employer representatives.
  • Other oversight activities.

Understanding the LMRDA's reporting and disclosure requirements is important to employers and unions alike. In addition to increased time and costs associated with providing the DOL with disclosure forms for every conversation with legal counsel, the Act provides for not only civil, but also criminal penalties for failure to adhere to its provisions. In fact, the Act allows for penalties of up to $10,000 and even one year in prison for flagrant violations.

Until the Final Rule is published, all of these changes are subject to change (whether more or less restrictive), yet the Final Rule is anticipated to follow the proposed rule's overall framework.

The Persuader Rule was first proposed in June 2011 and was met with fierce opposition, leading many to believe it had been dropped by the DOL when activity ceased in the fall of 2011. However, the OMB's Office of Information and Regulatory Affairs reported that the Rule will be finalized through OMB in early 2016, with implementation likely following within 60 to 90 days thereafter.

Prudent employers and human resource managers won't wait to familiarize themselves with these changes due to the significant penalties associated with any subsequent violations. Preparing your company for supervisor training, obtaining written materials for speeches and publications regarding unionization, and updating company policies should be completed, if at all possible, before the implementation of this Rule in order to take advantage of outside labor counsel.

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Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel


Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.


We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel