Q & A FLSA Overtime Rules on Hold

21-Feb-2017

Question Corner

FLSA Overtime Rules on Hold

By Jason R. Mau

Q: With the halting of the new FLSA overtime rules, what should we do if our company has already spoken with the employees who would have been affected by the changes? We have already processed the necessary paperwork for the changes to be entered into our systems. Do we continue with our changes, or should we retract them and leave the employees in their exempt status?

A: Since only a preliminary injunction was ordered (which has been appealed), there is no final decision on the overtime rules.  That means they could still take effect in the future, however the upcoming administration changes suggest that this is becoming less likely each day.  Since it appears you have already reclassified employees, you should continue with the changes and monitor the ongoing FLSA litigation.  You should not take any drastic measures, as the law does not allow an employer to force an employee to pay back wages already earned in reliance on new salaries/rates.  If the changes were modest, you may just want to decide to leave them in place.  However, if changes were substantial, you can look to reduce it back incrementally to original levels going forward, while weighing all the internal risks as to how the workforce will view the changes.  Whatever path is ultimately taken, continue to speak with your employees, giving them plenty of notice and explanation, stressing that being in compliance is just as important to the company as ensuring that all employees are being compensated fairly.

Q: We work in a medical setting, and we want to require all employees to receive a flu shot. Is that legal?

A: Such a requirement is not allowed; however, the Advisory Committee on Immunization Practices (ACIP) and the Healthcare Infection Control Practices Advisory Committee (HICPAC) does recommend all health-care personnel (HCP) in the United States obtain flu shots.  The ACIP and HICPAC recommends medical employers set up an education program regarding the benefits of vaccination and potential health consequences for HCP and their patients (and families).  They also recommend that you offer the vaccine annually to all HCP and encourage the vaccination by obtaining a signed declination from HCP who do not wish to receive the vaccination for reasons other than medical contraindications (i.e., egg allergies, asthma).   

Q: One of our employees was injured at work, and in accordance with a note from his doctor, we adjusted his duties and lowered his hourly rate. His doctor now says he is fully recovered and can go back to his previous position. However, someone else has already taken over his original duties and has been delivering better performance. Do we have to return the injured employee to his previous position, or can we leave him in the modified position?  

A: Provided your company has no return-to-work practices to the contrary, Idaho workers compensation laws do not require reinstatement to a previous position.  However, the law does prohibit retaliation or discrimination based on the basis of the employee’s workers compensation claim, so make sure the decision is based solely on work expectations and performance.  Also of note, if the injury is related to a condition that qualifies as a disability under the ADA, you would be required to retain the employee’s previous job unless it imposes an undue hardship upon the company.   

Q: We have an employee who is retiring. The final date of work is at the end of a pay period. Can we deliver her final check and vacation time payout through direct deposit, or do we have to provide her a physical check?

A: Idaho wage payment law only requires the last paycheck to be available at the usual place of payment by the earlier of the next regularly scheduled payday or ten business days. There is no requirement it be provided by physical check.

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.