On June 12 in Nashville and on June 26 in Memphis, attorneys from the Bass, Berry & Sims Labor and Employee Benefits Practice Groups presented to gatherings of corporate counsel, human resources professionals, state employees, and others about the current state of key issues in employment and benefits law.  Below is a list of the top “take-aways” from the seminars.

  • Overtime Classifications – look for significant increase in amount of salary to satisfy “salary basis” aspect of classifications and perhaps some change to “work duties.”  The Obama Administration has instructed the Department of Labor (DOL) to propose revisions to existing overtime regulations.  The goals of the revisions are to modernize regulations to reflect current workplace realities and to streamline the regulations so they are easier for workers and businesses to understand and apply.  The DOL is scheduled to publish proposed revisions for review and comment November 2014, which means any changes are unlikely to take effect until late 2015 or sometime in 2016.
  • Successor Liability even in “asset only” transactions.  Courts are increasingly finding successor liability with respect to Fair Labor Standard Act (FLSA) issues in asset purchase deals, which were once presumed to shield the buyer from liability.  Due diligence of employee classification and wage payment issues is crucial, even in an asset purchase deal.
  • Retaliation claims may be based on verbal complaints.  Verbal complaints of wage and hour violations may be sufficient under the (FLSA) if the complaint is sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.
  • Retaliation against prospective employers?  Not likely.  Prospective employers cannot be held liable for retaliation for refusing to hire an employee who has previously asserted his or her rights under the (FLSA) with another employer.
  • New Tennessee Law takes effect July 1.  TN Pub. Ch. 995 (effective July 1, 2014) prevents individual liability under the Tennessee Human Rights Act, caps monetary damages for claims brought under the Act, preempts common law whistleblower claims, and clarifies that the Tennessee Disability Act applies only to employers with eight or more employees.
  • Special rules apply to 401(k) plan eligibility conditions that are based on age or service (either on their face or in operation).
  • 401(k) Plan treatment of leased employees is ripe for errors. Employers should confirm that they are treating leased employees appropriately under their 401(k) plan, including with respect to their plan’s eligibility provisions and for purposes of the plan’s coverage test.  Certain leased employees must be included in 401(k) plan coverage test, but your plan’s definition of “leased employee” for that purpose may not be the same definition that you should use to exclude all leased employees from participation in your plan.
  • Healthcare reform presents new challenges in determining health plan eligibility. Employers should keep the Affordable Care Act’s “Employer Shared Responsibility” rules in mind when determining which employees will be eligible for their health plan.   Beginning January 1, 2015, large employers must offer health plan coverage that meets certain requirements to substantially all full-time employees to avoid penalties.
  • Do your benefit plans discriminate in favor of highly compensated employees?  Qualified retirement plans, self-insured health plans, cafeteria plans, dependent care benefit plans, and group term life insurance plans are subject to nondiscrimination testing that is intended to limit an employer’s ability to favor highly compensated employees with respect to these benefit plans.  Employers should confirm that their third party administrators are performing any necessary testing.
  • Health care reform expands nondiscrimination testing. Under the Affordable Care Act, fully insured health plans will become subject to nondiscrimination testing.  Historically, only self-insured health plans have been subject to such testing.