Employment & Labor Law Practice Group
Mark Fahleson
As 2023 comes to an end, there are some employment and labor law tasks you should consider before the calendar year closes. They include:
- Get Ready for New Overtime Rule. Are you ready? On August 30, 2023, the U.S. Department of Labor (DOL) announced new proposed rules regarding increases to the Fair Labor Standards Act’s (FLSA) salary requirement for the Executive, Administrative and Professional overtime exemptions. The DOL proposed raising the annual salary-level threshold to $55,068 from $35,568 for these “white-collar exemptions” and to $143,988 from $107,432 for highly compensated employees. The DOL also proposed automatic increases of the salary every three (3) years. While it remains just a proposal, the DOL published regulatory notice that they intend to make the final rule effective as early as April 2024. Now is the time to review your payroll practices and positions to determine what steps you would take in the event the salary requirements are increased to $55,068 (or more) and how you plan to categorize employees as exempt or non-exempt from overtime going forward.
- Nebraska's Minimum Wage Increase. As a result of a ballot initiative approved by voters in 2022, Nebraska’s minimum wage is scheduled to increase through 2026. Effective January 1, 2024, Nebraska’s minimum wage is $12/hour. Be certain to make the appropriate changes in your payroll systems to account for the increase.
- Review and Update Employee Handbook. Employers should review and republish their employee handbook on at least an annual basis. Spend the remaining days of 2023 to update your handbook and get it ready for distribution to your workforce in early 2024.
- Review and Update Job Descriptions. One of the first things government auditors ask for in an investigation is your job descriptions. Are they current? In light of the proposed FLSA changes are you certain the employees you’ve categorized as “exempt” from overtime will continue to be so. Do your job descriptions contain all of the necessary essential functions of the position, including “reporting to work on time when scheduled”? Spend the time now to review and update your job descriptions.
- Use New I-9 Form. Beginning November 1, 2023, employers are required to use the new Form I-9 (dated 08/01/23) published by the U.S. Citizenship and Immigration Services. Check to make sure that’s the form your team is using. Additionally, the U.S. Department of Homeland Security (DHS)issued a final rule that allows the agency to create a framework under which employers can implement alternative document examination procedures, such as remote document examination. The new form has a checkbox to indicate when an employee's Form I-9 documentation was examined using a DHS-authorized alternative procedure.
- Independent Contractors? Independent contractors continue to be a “red flag” for regulatory agencies. If you have anyone categorized as an independent contractor, be certain to consult with your legal counsel to ensure that the position is properly classified as an independent contractor and that you have a written agreement in place memorializing such.
- Audit Child Labor and Pay Practices. Child labor issues are an enforcement priority for the DOL. If you have anyone under the age of 18 working for you make sure that you are compliance with the applicable hazardous occupations and hours restrictions. This is especially important in light of the DOL’s recent announcement of increased civil monetary penalties for child labor violation calculations.
- Plan and Budget for 2024 Employee Training. The best and most cost-effective measures employers can implement to reduce workplace law risk is training, especially supervisory training. Tara Paulson and Mark Fahleson of our employment law team routinely conduct training for employers across the state, tailoring the training to the needs of each organization. Budget for training in 2024. An ounce of prevention is worth a pound of government audits and litigation.
The Rembolt Ludtke Employment & Labor Law team stands ready to assist you in completing your 2023 tasks so you can start 2024 off on the right foot. Let us know how we may help.
This article is provided for general information purposes only and should not be construed as legal advice. Those requiring legal advice are encouraged to consult with their attorney.
