New York Labor and Employment Law Report

After hearing oral arguments earlier this week from attorneys representing the White House and the states of Washington and Minnesota, last night, the U.S. Court of Appeals for the Ninth Circuit unanimously upheld the U.S. District Court for the Western District of Washington’s February 3, 2017 issuance of a temporary restraining order prohibiting the federal government from enforcing President Trump’s Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13769).  As you know from our previous blog posts, EO 13769 suspends the entire refugee admission program for 120 days, the Syrian refugee program indefinitely and the entry of immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period.  For now, as a result of the Ninth Circuit’s decision, citizens from the seven restricted countries will be able to travel to the U.S. Despite the fact that the Ninth Circuit’s ruling refuses to reinstate EO 13769’s travel ban, it is important to note that this situation will continue to be fluid, and the Trump administration will very likely seek to appeal this latest decision. As such, we continue to advise that individuals from the seven restricted countries who are presently in the U.S. forego unnecessary international travel at this time.  In addition, for those individuals from the restricted countries who have valid U.S. visas, who are presently outside the U.S. and who have the intent to return to the U.S., we recommend that they consider traveling to the U.S. while there remains an opportunity to do so.

We previously reported that on January 27, 2017, the Trump administration issued Executive Order 13769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.”  EO 13769 suspends the entire U.S. refugee admission system for 120 days, the Syrian refugee program indefinitely, and the entry of immigrants and non-immigrants from seven designated countries of concern for an initial period of 90 days.  Exactly one week later, on February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order that prohibits the federal government from enforcing EO 13769 on a nationwide basis. On February 4, 2017, the Department of Homeland Security ("DHS") issued a statement announcing that "in accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order . . .” and that “DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.”  In addition, all airlines and terminal operators have been notified to permit the boarding of all passengers without regard to nationality. Similarly, the Department of State (“DOS”) confirmed that all visas that had been provisionally revoked pursuant to EO 13769 have now been reinstated and are valid once again. In response to these developments, the Trump administration announced that it would file an emergency stay of the order “at the earliest possible time.”  Late in the day on February 4, the Department of Justice (“DOJ”) filed a formal notice of appeal with the United States Court of Appeals for the Ninth Circuit.  The appeal sought to resume the travel ban by requesting an emergency stay of the decision issued by the U.S. District Court for the Western District of Washington.  Early this morning (Sunday, February 5), the Ninth Circuit Court of Appeals issued an initial decision denying the DOJ’s emergency request.  However, the federal appeals court has also asked both parties to brief their respective legal arguments before rendering its final decision.  For now, the travel ban remains suspended. Developments from this past week have demonstrated that the interpretations and implementation of EO 13769 continue to fluctuate and evolve.  Accordingly, individuals from the seven designated countries of concern who are currently in the United States would be well-advised not to travel outside of the United States until the issues surrounding EO 13769 have been clearly settled by the judicial system.

The Equal Employment Opportunity Commission is seeking public comment on its newly proposed enforcement guidance addressing unlawful workplace harassment under the federal anti-discrimination laws.  The initial deadline for employers and other members of the public to submit input regarding the proposed guidance was February 9, but the EEOC just announced today that it was extending the deadline to March 21. The publishing of the new proposed guidance stems from the recommendations made last June by the EEOC’s Select Task Force on the study of harassment in the workplace.  If put into effect, the new guidelines would supersede pre-existing agency guidelines created during the 1990s.  The EEOC issued a press release, in which EEOC Commissioner Chai Feldblum was quoted as saying:  “This guidance clearly sets forth the Commission's positions on harassment law, provides helpful explanatory examples, and provides promising practices based on the recommendations in the report.” The majority of the 75-page guidance offers an overview of the EEOC’s positions on the following topics:

• harassment based on protected characteristics (race, color, national origin, religion, sex, age, disability, and genetic information);
• establishing causation;
• harassment resulting in discrimination based on a term, condition, or privilege of employment;
• defining hostile work environment claims;
• employer liability standards; and
• systemic harassment.

In its guidance, the EEOC also suggests a number of “promising practices” to help employers eliminate workplace harassment including:

• committed and engaged leadership;
• strong and comprehensive harassment policies;
• trusted and accessible complaint procedures; and
• regular and interactive anti-harassment trainings.

In its press release accompanying the issuance of the proposed guidance, the EEOC stated that the new guidance is necessary because the number of harassment claims filed over the past several years is on the rise.  According to the EEOC, between 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges.  In 2015, the EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of the charges filed that year. Employers who are interested in providing input on the proposed guidance may do so by submitting comments through www.regulations.gov, or by sending written feedback to:  Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  The EEOC will consider input from the public before finalizing and issuing the guidance.  In addition, this would be an opportune time for employers to review their anti-harassment policies and complaint procedures, to revise those policies and procedures if necessary, and to conduct some anti-harassment training for employees.

On January 27, 2017, President Trump signed an Executive Order ("EO") entitled "Protecting the Nation from Foreign Terrorist Entry Into the United States."  The EO suspends the entire U.S. refugee admission system for 120 days and the Syrian refugee program indefinitely.  In addition, the EO suspends the entry of immigrants and non-immigrants from certain designated countries of concern for an initial period of 90 days.  It should be noted that after 90 days, travel is not automatically reinstated for foreign nationals from these countries of concern.  Instead, the EO has mandated that the United States Department of Homeland Security (“DHS”) be required to report whether countries have provided information "needed . . . for the adjudication of any . . . benefit under the INA . . . to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat."  If a country refuses to provide the requested information regarding its nationals to enable the United States to adjudicate visas, admissions, or other benefits provided under the INA, the EO states that foreign nationals from that country will be prohibited from entering the United States until compliance has been achieved.  The EO currently applies to individuals from seven designated countries:  Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. There has been significant confusion regarding the scope and implementation of the EO’s travel ban.  Currently, it appears that the travel ban includes and applies to the following groups of individuals:  non-immigrant visa holders, immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), etc.  Moreover, any foreign national holding a passport from one of the seven designated countries is considered to be "from" the designated country.  Accordingly, dual citizens who hold passports issued by both a designated country and non-designated country may also be subject to the travel ban.  Further adding to the confusion regarding the scope of this EO, the DHS Secretary John Kelly issued a clarification statement late yesterday which noted that status as a lawful U.S. permanent resident (a.k.a. “green card holder”) “will be a dispositive factor” used in the case-by-case analysis for determining re-entry and/or admission into the United States. Based on the information set forth in the EO, employers would be well-served to advise employees who are from any of these seven designated countries to refrain from traveling outside of the United States until further notice.  While the EO has specifically identified seven countries of concern, there is speculation that this list may evolve and expand in the future.  Therefore, foreign nationals who hold immigrant and/or non-immigrant visas and who are presently in the United States from other Middle Eastern countries should strongly consider avoiding any international travel, where possible. Legal challenges to this EO have already been filed on constitutional grounds.  We anticipate that more lawsuits by various stakeholders will be initiated in the coming days and weeks.  On Saturday, January 28, 2017, a federal judge in New York granted an emergency stay for citizens of 7 Muslim-majority countries who have already arrived in the United States and those foreign nationals who are already in transit (with valid visas).  The court ruled that these foreign nationals cannot be removed from the United States.  In addition, on January 29, 2017, two district court judges in Massachusetts issued a 7-day restraining order on the enforcement of the EO.  The restraining order permits individuals traveling to Boston from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen who are legally authorized to enter the United States to do so -- at least for the next seven days.  Even though these court decisions do not overrule or invalidate the EO on its face, they do send two messages:  (1) the subject matter contained in the EO will be subject to legal challenges; and (2) given the gravity of the situation, the courts will likely address any such legal challenges in an expeditious manner. As suggested above, until more practical guidance is issued from the courts, the DHS, and/or the White House, employers should advise their foreign national employees who could potentially be impacted by this EO not to travel abroad.

Pursuant to new regulations that take effect on March 7, 2017, New York employers will be required to satisfy certain notice requirements and obtain employees' informed consent before paying wages by debit card or direct deposit.  (Additional information concerning those regulations can be found here.)  In connection with those regulations, this week the New York State Department of Labor posted model templates for written notice and consent for public comment and feedback. The notice and consent for payroll debit cards can be found here. The notice and consent for direct deposit can be found here. Comments and feedback can be submitted to regulations@labor.ny.gov through February 10, 2017.  The Department indicates that after making any changes from such comment and feedback, it will post updated templates prior to the March 7 effective date of the rule, along with translations into additional languages specified during the rulemaking process.

On November 14, 2016, the United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 (Rev. 11/14/2016 N) to replace the prior form which expired on March 31, 2016.  Beginning January 22, 2017, employers must use this updated form for the initial employment verification of all new hires, as well as any applicable employment re-verifications.  Prior versions of the Form I-9 will no longer be valid.  The new Form I-9 has an expiration date of August 31, 2019. By way of background, the Immigration Reform and Control Act (“IRCA”) requires employers to verify the identity and legal work authorization of all individuals, including U.S. citizens and legal permanent residents, hired after November 6, 1986.  Specifically, the I-9 verification process requires individuals to present facially valid documentation to enable employers to verify an individual’s identity and to further confirm that the individual is authorized to work in the United States.  For record-keeping purposes, an employer must retain completed Form I-9s for either three years after an individual’s date of hire or one year after the employment relationship ends -- whichever is later. According to a press release issued by the USCIS, the new Form I-9 is “designed to reduce errors and enhance form completion using a computer.”  Dubbed a “smart form,” the online version of this updated form now includes various enhancements intended to minimize technical errors commonly made by employers and employees.  For example, some of the new I-9 smart form features include the following:

• Embedded prompts in the online Form I-9 which provide instructions on how to properly complete that particular question.
• Drop down lists for certain questions (e.g., citizenship/immigration status, number of preparers/translators, state, document title, issuing authority, etc.) and calendar entries for requested dates (e.g., date of birth, document expiration dates, etc.).
• The opportunity to list/enter information for more than one preparer and/or translator (if applicable).
• Auto-population of “N/A” in certain blank fields (where applicable).
• Auto-population of the employee’s name and citizenship/immigration status into Section 2 based upon responses provided in Section 1.
• A mechanism which prompts an individual about missing information and/or incomplete fields -- highlighted in red -- before moving from one section to another within the form.
• An “error-checking mechanism” which provides prompts and error messages where there may be potential response inconsistencies between citizenship/immigration status and proffered I-9 supporting documentation.
• A “Start Over” option that enables an individual to clear the Form I-9 and start anew, if necessary.
• A “Print” option that enables an individual to print the Form I-9 once data has been entered.
• An “Instructions” option which automatically links an online user to a separate copy of the Form I-9 instructions.
• Automatic generation of a quick response (QR) code.

Employers are reminded that even if they use the enhanced online version of the Form I-9, they must still print the document, gather the necessary handwritten signatures and store the completed form pursuant to the applicable I-9 recordkeeping requirements. In addition to the electronic enhancements mentioned above, the USCIS has made several other notable revisions to the new Form I-9.  A summary of the main changes within each section of the form appears below. Improved Instructions In this latest round of revisions, the USCIS has separated the instructions from the actual Form I-9.  In addition, the USCIS has amended the instructions to provide more detail and guidance in an effort to reduce errors during the verification process.  The Form I-9 instructions are now 15 pages in length.  Employers should note that they are still required to make either an electronic or hard-copy of these instructions available to employees when they complete the Form I-9. Section 1:  Employee Information and Attestation

• The “Other Names Used” field has been renamed to “Other Last Names Used (if any).”  This field has changed to require only last name changes in an effort to protect the privacy of individuals (transgendered and others) who have changed their first names, as well as to avoid potential discrimination issues.
• Foreign national employees are no longer required to provide both their Form I-94 number and foreign passport information in Section 1.  Instead, the updated form requires foreign national workers to supply one response from the following three options:  (i) an Alien Registration Number; or (ii) a Form I-94 Admission Number; or (iii) a foreign passport number.
• The employer must now affirmatively answer whether he/she has used a preparer/translator for completion of Section 1 of the Form I-9.  If a preparer/translator has been used, the updated form now provides additional spaces to enter multiple preparers/translators.

Section 2:  Employer or Authorized Representative Review and Verification

• Addition of the employee’s “Citizenship/Immigration” status at the beginning of Section 2.  (This information should be consistent with what the employee has listed in Section 1.)
• A new dedicated box/blank section where employer representatives may enter additional information/notes previously written in the margins (e.g., annotations for OPT extensions, receipts, Temporary Protected Status, etc.).

As noted above, the new Form I-9 includes new electronic features to facilitate fewer errors during the completion process.  Reducing the number of technical/paperwork violations on the Form I-9 has become increasingly important since the federal government implemented higher civil fines against employers who commit immigration-related offenses, which includes, among other things, Form I-9 and E-Verify violations.  With respect to I-9 paperwork errors (e.g., errors or omissions on the Form I-9), the federal government raised the civil penalty range from $110-$1,110 (per relevant individual) to $216-$2,156 (per relevant individual) -- an increase of approximately 96%.  The new penalties took effect on August 1, 2016. Given the anticipation of heightened immigration enforcement by the new administration, employers may be well-served to review their I-9 procedures and records to ensure compliance with IRCA.  If you have questions about the new Form I-9 or general I-9 compliance issues, please contact Bond’s Immigration Practice Group.

As expected, this morning, the New York State Department of Labor published its final rule increasing the salary threshold applicable to exempt executive and administrative employees in New York State. While the ultimate fate of the USDOL’s regulations remains unclear, New York employers now know that the salary threshold applicable to exempt executive and administrative employees will increase effective December 31st. As previously reported, under New York’s Labor Law, the salary threshold for executive and administrative employees (NY law does not set a salary threshold for professional employees and thus the federal salary of $455 applies) is currently $675 per week -- 75 times the current minimum wage of $9.00 per hour.  With the minimum wage set to gradually increase in coming years (at different rates depending on geography), the New York State Department of Labor has implemented corresponding increases in the applicable salary threshold.  The first of these increases will take effect in just three days. Specifically, the increases to New York's salary threshold for executive and administrative employees are as follows: Employers Outside of New York City, Nassau, Suffolk, and Westchester Counties

• $727.50 per week on and after 12/31/16;
• $780.00 per week on and after 12/31/17;
• $832.50 per week on and after 12/31/18;
• $885.00 per week on and after 12/31/19;
• $937.50 per week on and after 12/31/20

Employers in New York City "Large" employers (11 or more employees)

• $825.00 per week on and after 12/31/16;
• $975.00 per week on and after 12/31/17;
• $1,125.00 per week on and after 12/31/18

"Small" employers  (10 or fewer employees)

• $787.50 per week on and after 12/31/16;
• $900.00 per week on and after 12/31/17;
• $1,012.50 per week on and after 12/31/18;
• $1,125.00 per week on and after 12/31/19

Employers in Nassau, Suffolk, and Westchester Counties

• $750.00 per week on and after 12/31/16;
• $825.00 per week on and after 12/31/17;
• $900.00 per week on and after 12/31/18;
• $975.00 per week on and after 12/31/19;
• $1,050.00 per week on and after 12/31/20
• $1,125.00 per week on and after 12/31/21

A chart summarizing these thresholds is available on the NYS DOL website. What does this mean?  It means that if you have any exempt executive or administrative employees who are currently paid less than the applicable salary threshold set forth above, you must increase their salary to at or above that threshold or reclassify them as nonexempt.  But fear not -- you have three days. What a perfect way to end the year -- a significant change imposed on New York employers with virtually no notice. Happy New Year everyone!

Municipal police employers who thought that their payment of benefits to injured police officers under General Municipal Law Section 207-c shielded them from tort claims brought by those injured officers need to think again. Some municipal police employers, particularly larger ones, opt not to carry workers’ compensation coverage.  Such coverage is costly.  Moreover, there was a thought that Section 207-c, which provides injured officers with payment of full (tax free) salary during their absence from work and covers the cost of their medical treatment and health care, was an injured officer’s exclusive remedy against his/her employer and shielded the employer from lawsuits filed by its police employees.  Until recently, that belief had the support of multiple state appellate court decisions.  For example, in Nieves v. City of Yonkers, the Appellate Division, Second Department, held that an officer, having received Section 207-c benefits, could not assert a tort claim against his employer.  Similarly, in Damiani v. City of Buffalo, the Appellate Division, Fourth Department, held that an officer’s right to the receipt of Section 207-c benefits was the exclusive remedy for injuries caused by a fellow officer. However, the recent New York Court of Appeals holding in Diegelman v. City of Buffalo dispels that notion.  In that case, the Court of Appeals held that “where the municipal employer has elected not to provide coverage pursuant to the Workers’ Compensation Law, a police officer who suffers a line-of-duty injury caused by the employer’s statutory or regulatory violations may pursue a section 205-e claim.”  In reaching its decision, the Court evaluated the interplay between Section 207-c, General Municipal Law Section 205-e, and the Workers' Compensation Law.  Section 205-e allows police officers to bring tort claims for line-of-duty injuries in certain delineated instances.  Conversely, the Workers’ Compensation Law completely precludes an employee from pursuing a tort claim against his employer for injuries sustained in the course of employment. The Diegelman majority reasoned that while the language in Section 205-e precludes a tort action by recipients of workers’ compensation benefits, it makes no mention of Section 207-c, though it certainly could have if the legislature so intended.  The majority also rejected the argument that because of the superior benefits provided by Section 207-c, it “is essentially a super workers’ compensation scheme for police officers.”  Perhaps most tellingly, the majority also noted that prior judicial efforts to restrict the breadth of Section 205-e had all been met with legislative enactments abrogating those holdings. Judge Pigott authored a dissenting opinion in which he noted that Section 205-e was intended as a cost-savings measure for the benefit of the municipal employer.  In other words, it was intended to allow the injured officer to sue third parties while permitting the employer to file a lien and recoup its Section 207-c costs from that third party wrongdoer.  Judge Pigott also questioned the logic of allowing an injured police officer who receives Section 207-c benefits to pursue a tort claim against his/her employer while precluding other employees who receive inferior benefits under the Workers’ Compensation Law from doing so. Diegelman should serve as a wakeup call.  Municipalities that do not provide workers’ compensation coverage for their police officers should engage in a renewed analysis and determine whether the costs and potential liability inherent in defending police officer tort claims outweigh the cost of securing and providing workers’ compensation coverage.

Yesterday, the U.S. Court of Appeals for the Fifth Circuit granted the USDOL's request to expedite its appeal from the preliminary injunction order issued by the U.S. District Court for the Eastern District of Texas, preventing the new white collar exemption regulations from being implemented.  Under the Fifth Circuit's schedule for the appeal, the USDOL is required to file its appeal brief by December 16, 2016.  The responding brief of the 21 states that obtained the preliminary injunction is due by January 17, 2017.  The USDOL's reply brief is due by January 31, 2017.  Amicus briefs in support of the USDOL are due by December 23, 2016, and amicus briefs in support of the 21 states are due by January 24, 2017.  The oral argument before a panel of Fifth Circuit judges will be scheduled on the first available date after the close of briefing, and the Court will issue an expedited ruling on the appeal after oral argument is conducted. Although the Fifth Circuit agreed to expedite the appeal, the briefing schedule issued by the Court confirms that the appeal will still not be decided before Donald Trump is inaugurated as the next President of the United States on January 20, 2017.  Trump's announced intent to nominate Andrew Puzder as his Secretary of Labor sends a fairly clear signal that the Trump Administration will not support the new regulations as they are currently written and may even withdraw the pending appeal before a decision is issued by the Court.  Puzder is the CEO of a chain of fast-food restaurants who has been a vocal opponent of the USDOL's increase to the minimum salary to qualify for the white collar overtime exemptions.  On May 18, 2016, the same day that the USDOL issued its final regulations, Puzder wrote an opinion piece for Forbes soundly criticizing the regulations as counterproductive to the goal of increasing the wages of the middle class.  In that article, Puzder wrote:  "This new rule will simply add to the extensive regulatory maze the Obama Administration has imposed on employers, forcing many to offset increased labor expense by cutting costs elsewhere.  In practice, this means reduced opportunities, bonuses, benefits, perks and promotions." It remains likely that the New York increases in the minimum salary levels to qualify for the executive and administrative exemptions will be adopted.  The 45-day comment period after the issuance of the proposed New York State Department of Labor regulations recently ended, and it is expected that the regulations will be adopted as final before the end of the year. We will continue to provide updates as further developments occur.

For the first time since November 2010, the filing fees for many of the petitions and applications filed with the U.S. Citizenship and Immigration Services (USCIS) will increase, effective December 23, 2016.  All applications or petitions mailed, postmarked, or otherwise filed with USCIS on or after that date must include the new fee. Employers who regularly file H-1B visa petitions on behalf of foreign professionals should take special note that the base filing fee for Form I-129, Petition for a Nonimmigrant Worker, is increasing from $325 to $460, an increase of 43%.  This fee is in addition to the $500 Fraud Prevention and Detection Fee paid by employers for initial, change of employer, and concurrent employment H-1B visa petitions, the $1,500/$750 American Competitiveness and Workforce Improvement Act (ACWIA) Fee paid by employers who do not otherwise qualify for an exemption (e.g., institutions of higher education), the $4,000 fee paid by H-1B visa dependent employers (those that employ 50 or more employees in the U.S. and 50% of those employees are in H-1B status), and the $1,225 fee for premium processing service paid by those employers seeking processing of their petitions in 15 calendar days or less. Other commonly used petitions and applications that will see fee increases include, but are not limited to:

• Form I-140, Immigrant Petition for Alien Worker, will increase from $580 to $700;
• Form I-485, Application to Register Permanent Residence or Adjust Status, will increase from $985 to $1,140;
• Form I-539, Application to Extend/Change Nonimmigrant Status, will increase from $290 to $370; and
• Form I-765, Application for Employment Authorization, will increase from $380 to $410.

There is no increase to the Form I-907, Request for Premium Processing fee ($1,225), or the biometrics services fee ($85) that is required for certain petitions.  A complete list of the new fees for all petitions and applications can be found here.

Today, the U.S. District Court for the Eastern District of Texas issued a nationwide injunction preventing the U.S. Department of Labor from implementing its regulations revising the white collar exemptions.  Therefore, the increase in the minimum salary level to $913.00 per week that was expected to go into effect on December 1 will not occur on that date. In granting the injunction, the Court held that Congress intended the executive, administrative, and professional exemptions to be based on an employee's duties -- not on an employee's salary level.  Specifically, the Court stated:  "After reading the plain meanings together with the statute, it is clear Congress intended the EAP [executive, administrative, professional] exemption to apply to employees doing actual executive, administrative, and professional duties.  In other words, Congress defined the EAP exemption with regard to duties, which does not include a minimum salary level."  Although the USDOL has imposed a minimum salary level requirement to qualify for the white collar exemptions since the 1940s, the Court nevertheless determined that the increase in the minimum salary level from $455.00 per week to $913.00 per week was so large that "it supplants the duties test."  The Court stated:  "If Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change." So, what does this mean for the future of these regulations?  Although this is only a preliminary injunction that prevents the implementation of the regulations until a final determination is made, this could very well be a permanent end to the regulations.  A final determination is unlikely to be issued before the inauguration of President Trump, and it seems less likely that the USDOL under the Trump administration will be inclined to continue to vigorously defend the regulations in this litigation.  A more likely outcome is that the USDOL may rescind and reissue the regulations with a less drastic salary increase, or perhaps even not reissue the regulations at all. This development leaves many employers wondering what to do about the employees who have already been told that they will be reclassified from exempt status to non-exempt status beginning next week and the employees who have been told that they will receive salary increases beginning next week in order to maintain their exempt status.  The employees who have been told that they will be reclassified from exempt to non-exempt status can certainly be told at this point that they will remain exempt employees (assuming, of course, that their duties continue to qualify them for one of the white collar exemptions).  In addition, from a legal standpoint, nothing would preclude an employer from rescinding the salary increases that were scheduled to go into effect next week for employees who were told that they would receive a salary increase to maintain their exempt status (unless the employer has entered into an employment contract that binds the employer to providing the salary increase).  Obviously, from a human resources standpoint, this will require clear and prompt communication regarding the reason why the salary increase is being rescinded. Employers in New York should also keep in mind that the New York State Department of Labor has proposed a gradual increase to the minimum salary levels to qualify for the executive and administrative exemptions.  If these proposed regulations are adopted, the first salary increase will occur on December 31, 2016.  Employers outside of New York City, Nassau, Suffolk, and Westchester Counties will be required to pay a minimum salary of $727.50 per week to executive and administrative employees.  Employers in New York City who employ 11 or more employees will be required to pay a minimum salary of $825.00 per week to executive and administrative employees.  Employers in New York City who employ 10 or fewer employees will be required to pay a minimum salary of $787.50 per week to executive and administrative employees.  Employers in Nassau, Suffolk, and Westchester Counties will be required to pay a minimum salary of $750.00 per week to executive and administrative employees.  These amounts will increase each year.  There is still no minimum salary under New York law to qualify for the professional exemption even under the new proposed regulations.  We will provide an update regarding whether these proposed regulations become final regulations.

As we previously reported, 21 states filed a lawsuit on September 20 against the U.S. Department of Labor in the U.S. District Court for the Eastern District of Texas, challenging the USDOL’s revisions to the white collar exemptions under the Fair Labor Standards Act.  On that same day, several business groups filed their own lawsuit in the same Court, also challenging the USDOL's white collar exemption regulations.  As we quickly approach the effective date of the new regulations (December 1), many employers are wondering:  what is the status of those lawsuits and how do those lawsuits affect our plans to communicate with our employees about changes that will be made? The short answer to the first question -- the status of the lawsuits -- is that the Court has not issued a decision yet.  On October 12, the 21 states filed a motion for a preliminary injunction, and on October 14, the business groups filed a motion for summary judgment.  On October 19, because of the similarities in the allegations and the common underlying purpose of the two complaints, the Court consolidated the two cases.  This morning, November 16, the court held oral argument with respect to the states' motion for a preliminary injunction.  The U.S. District Judge, Amos L. Mazzant, III, stated at the end of oral argument that the Court hopes that a ruling on the motion for a preliminary injunction will be issued on Tuesday, November 22.  The USDOL's deadline to file a response to the business groups' motion for summary judgment is November 18, and the business groups will have until November 21 to file a reply.  So, a decision on the motion for summary judgment is also not expected at least until November 22 at the earliest. The answer to the second question -- what effect the lawsuits will have on a New York employer's plans to communicate changes to its employees -- is that it may not be feasible for employers to wait and see whether the Court issues an injunction before communicating with their employees.  Employers will need to comply with the new regulations (assuming there is no injunction) effective at the beginning of the work week that encompasses December 1.  For employers that have Monday through Sunday work weeks, that date will be Monday, November 28 -- right after Thanksgiving weekend.  Therefore, employers that want to provide their employees with as much advance notice as possible may find it difficult to wait and see whether the Court issues a decision on November 22 before letting their employees know that they will be converted from exempt to non-exempt status effective November 28. Employers may want to consider including some language in their communications to employees to let them know that the changes in classification will occur unless there are developments prior to the effective date of the changes that either delay or prevent the new regulations from being implemented.  However, even in the absence of such language, nothing would preclude an employer from restoring the status quo if a preliminary injunction is issued by the Court.