U.S. Supreme Court to Rule on LGBTQIA Workplace Protections

The United States Supreme Court recently announced that it will hear three cases that address whether Title VII of the Civil Rights Act applies to workplace discrimination claims based on sexual orientation and gender identity. Two consolidated cases from the 2nd Circuit (CT, NY, and VT) and 11th Circuit (AL, FL, and GA) involve discrimination claims based on sexual orientation and transgender issues. In Zarda v. Altitude Express, Inc., the Second Circuit held that sexual orientation discrimination is motivated by sex and thus is a form of sex discrimination under Title VII. In Bostock v. Clayton County Board of Commissioners, the Eleventh Circuit reached the opposite conclusion, ruling that “[d]ischarge for homosexuality is not prohibited by Title VII.” Bostock, 723 F. App’x 964, 965 (11th Cir. 2018).

The third case that will be heard by the Supreme Court comes out of the Sixth Circuit. In Equal Employment Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), the court ruled that Title VII bars discrimination based on a person being transgender. The court explained, “It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” Equal Employment Opportunity Comm’n, 884 F.3d 560, 575 (6th Cir. 2018).

According to recent polling by PRRI, 69% of Americans favor anti-discrimination laws that protect LGBTQIA employees from discrimination in the workplace. The current administration, however, opposes any such protection. In the face of this tension, the Supreme Court’s upcoming decisions in these cases will be closely watched. They will likewise have sweeping impact across the county, much like Obergefell v. Hodges, the landmark civil rights case in which the U.S. Supreme Court ruled that the fundamental right to marry extends to same-sex couples.

Employers in Madison will likely welcome greater certainty on this issue at the federal level. The Wisconsin Fair Employment Act, which is the state-wide statute covering workplace discrimination and harassment, considers discrimination based on sexual orientation to be a form of sexual discrimination, but does not yet prohibit discrimination based on gender identity. The Madison Equal Opportunities Ordinance is more expansive and expressly prohibits discrimination on the basis of sexual orientation and gender identity.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you have questions related to workplace discrimination, or you want assistance with professional development or respectful workplace training. Contact us here or call 844-333-5253 (LAKE).

Hannah Joins the Team

We are excited to announce the addition of Hannah L. Renfro, J.D. to the Lake Effect HR & Law team!

Hannah has over 15 years of experience representing clients on a wide range of matters, including employment litigation; crisis and communication management; governmental relations; compliance and risk management; strategies for hiring and retaining staff; and general employment matters.

Prior to joining Lake Effect, Hannah served as Chief Legal Officer at the Wisconsin Economic Development Corporation for 7 years. She was instrumental in creating the organization and establishing its legal and compliance functions. Hannah oversaw the development of the organization’s policies and procedures, and training the Board of Directors, officers, and employees on those policies and procedures.

In addition to her in-house experience, Hannah practiced at Foley & Lardner (Madison), Godfrey & Kahn (Madison), and Rathje Woodward (Madison). While in private practice, Hannah litigated complex commercial matters involving non-compete agreements, employment discrimination, intellectual property and contract disputes, antitrust law, and campaign finance. She also has a broad range of experience in negotiating disputes and advising clients on how to minimize exposure to litigation.

“I am thrilled to be working with the amazing team at Lake Effect,” Renfro said. “The firm has created a unique, comprehensive approach to HR and employment law. I look forward to applying my background to help achieve Lake Effect’s mission and vision for our clients.”

Jane Clark, CEO and Managing Partner, remarked on what an exceptional coup it was to recruit Hannah, “She fits perfectly within the Lake Effect model with her blend of in-house and external advisory experience.  Even better, she is a terrific culture fit, supporting our core values with a keen intellect, quick wit, and ready laugh. “

Check out Hannah’s full bio here.

Trump Era Proposed Overtime Rule: Hurry Up and Wait

On March 7, 2019, the Department of Labor released a Proposed Overtime Rule that would increase the salary level threshold for positions that are exempt from the overtime provisions of the FLSA from the current $23,660 per year ($455 per week) to $35,308 ($679 per week). While this may seem like a big leap, recall that under President Obama, the proposed increase was even greater, to $47,476 per year ($913 per week).

Rest assured, there is no danger that this change will be implemented tomorrow or anytime in the near future. Procedurally, the Proposed Rule will be published in the Federal Register, and there will be a 60-day period for public comment. After that, the DOL will review the comments, which could take several months. Following DOL’s review, there is likely to be litigation that will also impact the review and implementation of this Proposed Rule. At the conclusion of that entire process, the DOL will develop a Proposed Final Rule and submit its Proposed Final Rule to the White House Office of Management and Budget (OMB) for still more review. As a point of reference, in 2016, the OMB’s review of the Obama era Proposed Final Rule took nearly 2 months. Even after a proposed Final Rule is released, the DOL will likely give employers 120 to 180 days before the Final Rule becomes effective. All of this means that we are months and months away from a Final Overtime Rule implementing a salary level threshold increase. Keep in mind, we will also have a federal election in the fall of 2020. Certainly, the Trump Administration will want its Final Rule in place before then, but it could run into the same problem as the Obama era Final Rule – a change of administration may derail its plans.

What does this potential salary level threshold increase mean for employers and employees? It means that any employees who earn below the $35,308 per year threshold will be reclassified as non-exempt and eligible to receive overtime pay for hours worked in excess of 40 hours per work week. Unlike the Obama era Final Rule, the Proposed Rule does not call for automatic and regular increases to the salary threshold on an ongoing basis. Also, keep in mind that simply increasing an employee’s pay to at or aboe the $35,308 threshold does not automatically mean the employee or position is exempt from overtime pay requirements. To be exempt, the employee's job duties also must satisfy one of the duties tests set forth in the Fair Labor Standards Act and/or your state wage and hour laws.

Given the uncertainty of the landscape relating to yesterday’s proposed Final Overtime Rule, what should employers do to prepare?

  • Conduct an internal audit to gain a sense of how many employees’ annual salaries fall between $23,660 and $35,308. This will identify the pool of potentially affected employees and the possible financial impact to the organization in the event you decide to increase salaries to satisfy the proposed new threshold.
  • Remember the second prong of federal exemption testing: duties. Work with your in-house HR Department or external HR and employment law advisors to assess the duties of the employees in the pool to determine if their duties satisfy any of the FLSA exemptions. If they do not, the organization may need to reclassify the position as non-exempt and start paying those employees overtime – if and when the Final Rule is implemented and effective.
  • Sit tight and wait to see what the Proposed Final Rule is after the comment period and likely litigation. Lake Effect will continue to keep you apprised on the status of a Final Rule.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise as your organization conducts its exemption audit. Contact us or 1-844-333-5253.

Lake Effect HR & Law Makes a Splash

Lake Effect HR & Law, LLC, to provide comprehensive HR and Employment Law Services

Managing the full spectrum of HR and Employment Law needs for our clients.

MADISON, WI – Lake Effect HR & Law, LLC, has launched in Madison, Wisconsin, providing the full spectrum of HR and Employment Law services to its clients.

Lake Effect HR professionals provide traditional HR administration and strategic guidance, benefits administration and design, HR investigations and workplace trainings. Clients can take advantage of their long-standing payroll partner, a local organization owned and managed by CPAs. Lake Effect attorneys advise on specific employment law issues or provide ongoing advice and counsel on all facets of employee relations, employment agreements, handbooks and policies, wage and hour compliance, employment law-informed trainings, labor relations, and related litigation. In so doing, Lake Effect’s team assists and advises throughout the entire employee life cycle, from recruitment to end of employment.

Led by founder, Jane Clark, has gathered a team with vast experience from decades of experience working together in the fields of strategic human resources and employment law. Jane is joined in this new venture by the core of the team from the former Clark & Gotzler law firm: Kathleen G. McNeil, Attorney; Sheila M. Conroy, Attorney; Tricia Perkins, Senior Strategic HR Advisor; and Leann Ploessl, Strategic HR Advisor. Their extensive and unique melding of management, business and litigation experience helps clients navigate the maze of employment and human resources challenges.

“We are a woman-owned and operated firm. Our experienced team has worked at law firms, private businesses, our own businesses, and state agencies. We serve and have served on a wide array of non-profit boards,“ Clark said. “We bring that experience, along with our concierge-style customer service, to bear for our clients.”

“The Lake Effect attorneys and HR professionals coach clients to be good employers who are able to maximize their employees’ potential and create a culture of support, encouragement and growth,” McNeil added. “In the end, each of our clients strives to do the right thing and fulfill its mission, vision and values. When that is accomplished, organizational success and employee engagement are sure to follow,” concurred Perkins.

For more information on – Lake Effect HR & Law, LLC, contact us today.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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