Before you hit the reset button on all those changes you made for the DOL Overtime Rules…

Go ahead. Push it.

Did you have a nice Thanksgiving holiday?

How many of you gave thanks to that federal court in Texas for entering a nationwide injunction on the DOL overtime rules?

Glass half-full (of old, stinky wage-and-hour milk).

On the one hand, most of you got what you originally hoped for. That is, (for now) the Fair Labor Standards Act rules governing who is (and is not) exempt from overtime do not change. You should be like…

However, the timing of the injunction could have been better, amirite? I mean, there’s only so many times that you can kick the can down the road. So, I’m assuming that most of you have already changed your employee pay practices in anticipation of December 1, and communicated those changes to your workforce. So, now you’re like…

What now?

Do you reverse them? Some of them? If so, when and how? I talked a little about this last week. And, after some further reflection, and a meeting of the employment-lawyer Illuminati — were’ the ones who masterminded marketing social media policies to you suckers — there’s a discrimination angle here.

That’s right! FLSA and Title VII worlds collide.

Think about it practically. Let’s say that I gave uniform pay raises to several diverse employees within the same job classification to get them over $913/week on a salary basis. Now, rather than maintain those pay increases, or eliminate them entirely, I tried to thread the needle by selecting a few of those employees to go back to their old salary, while keeping others at their higher salary.

Hey, Blogmaster! Why didn’t a keep my pay raise? But, she did! It must be because of my [insert protected class]. That’s discrimination! You should know better since you blog about this stuff.

So, not only may my actions create the perception of bias; but, when someone complains, and I later fire that person for some unrelated reason, I’ve got a retaliation claim too — even though I may not have let [insert protected class] motivate my decision in the first place.


Take your time.

Who knows what’s going to happen with this overtime rule? (Well, besides my Illuminati). Whatever you decide to do, make sure that it is a measured approach that — wait for it — includes input from an employment lawyer.

***kisses Illuminati pinkie ring***

“Doing What’s Right – Not Just What’s Legal”
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