PREVENTIVE Strategies

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1 VOLUME 26, NUMBER 2 SUMMER 2004 PREVENTIVE Strategies EMPLOYMENT, LABOR, S PECIAL R EPORT ON N EW O VERTIME E XEMPTION R EGULATIONS Due to the importance of this development for all employers covered by federal, state and local wage and hour laws, this Special Report is devoted primarily to the new white collar overtime exemption rules under the Fair Labor Standards Act. WHAT EMPLOYERS NEED TO KNOW AND DO ABOUT THE LABOR DEPARTMENT S FINAL REGULATIONS ON WHITE COLLAR OVERTIME EXEMPTIONS IN ANATTEMPT TO CLARIFY AND UPDATE THE HALF-CENTURY OLD federal regulations defining the Fair Labor Standard Act s white collar exemptions, on April 20, 2004, the United States Department of Labor announced and released the final version of the Fair Pay Overtime Security for the 21st Century Workforce revised regulations. The final rules clarify the definitions of bona fide exempt employees under the executive, administrative, professional, outside sales, and computer employee exemptions (29 C.F.R. Sec. 541). The new regulations are scheduled to take effect on August 23, Even as commentary generated by the new rules rolls in, employers should determine the extent of the impact of the final rules on their current compensation practices. At a minimum, employers must analyze the new rules, conduct a compliance review of existing employee classification and pay practices, revise affected policies and practices in light of the new rules, and implement the changes throughout the workforce. The DOL s announcement comes more than a year after it proposed the white collar exemption revisions, which drew widely publicized commentary and were subject to criticism from employer and employee advocacy groups alike. The need for change was apparent, however, and the announcement of the new rules was much anticipated. As Wage and Hour Administrator Tammy McCutchen noted, Updating these regulations is long overdue the types of jobs people do and the skills they need have changed, but the regulations have not The exemptions have engendered considerable confusion over the years regarding who is, and who is not, exempt. continued inside BENEFITS AND IMMIGRATION LAW FOR EMPLOYERS C O N T E N T S SPECIAL REPORT ON NEW OVERTIME EXEMPTION REGULATIONS What Employers Need to Know and Do About the Labor Department s Final Regulations on White Collar Overtime Exemptions 1-5 Answers to Frequently Asked Questions About the Final DOL Regulations on the White Collar Overtime Exemptions 5-8 The Current, Proposed and Final DOL Overtime Regulations (Side-by-Side Comparisons) 8-9 SUPREME COURT Federal Four-Year Limitations Statute Applies to Suit Under 1991 Civil Rights Act 10 EMPLOYEE BENEFITS DOL Issues Final COBRA Notice Regulations 11 MANAGEMENT EDUCATION OPPORTUNITIES The 5th Annual Jackson Lewis Women s Employment Law Conference: Grow & Renew 11 The Jackson Lewis 2nd Annual Golf Invitational 11 How to Take Control of Workplace Injury and Disability Costs: Your TEAM Solution 12 S AVE THE D ATES! UPCOMING EVENTS SEE PAGES 11 & 12

2 To reduce the confusion, the DOL has revised the tests for determining whether white collar employees are exempt from FLSA minimum wage and overtime requirements. The salary level for exempt employees has been raised to $455. The salary basis test has been rewritten to define situations when an exempt employee s salary status could be lost. The duties tests have been streamlined. In addition, the test for the outside sales exemption was modified to remove the percentage for nonexempt work activity, and the computer employee exemption was given its own section in the regulations. History of the DOL s Overtime Exemption Rules The white collar exemptions are incorporated into the FLSA, which was enacted in Over the years, page upon page of federal regulations had been issued to define who would be subject to one of the white collar exemptions. The resulting maze of complex and lengthy regulations had remained essentially unchanged since 1949, confounding employers, employees, and the Department of Labor investigators and leading to innumerable court cases. Many areas of the old white collar regulations were confusing and remarkably outdated. For example, the salary level tests used to determine whether an employee could qualify as a bona fide executive, administrative, or professional employee remained at levels barely beyond the federal minimum hourly wage. Like the outdated salary component of the test, the duties tests had not kept pace with the modernization of the workplace. For example, the bright-line tests for distinguishing between production and administrative employees were conceived to address industrial era production line jobs, not service and technology based jobs. When it announced the proposed revisions, the DOL encouraged the public to submit written comments during a 90-day comment period, which ended on June 30, The public took the DOL s request seriously and inundated the Department with thousands of responses. In the months that followed publication of the proposed regulations, the DOL considered the public comments and revised the proposed regulations. At the conclusion of what proved to be a slow and difficult process, the final rules were announced. Significant S ignificant changes had been made to the final draft, indicating the DOL had weighed carefully the public s reaction. changes had been made to the final draft, indicating the DOL had weighed carefully the public s reaction and had released leaner, more flexible guidelines intended more closely to approximate the needs and concerns of 21st century employers and employees alike. Summary of the FairPay Rules The FairPay rules do not alter the most basic requirements of the white collar exemptions, but, instead, realign the application of each basic requirement. The final rules redefine the salary level test, the salary basis test, and the duties tests for each exemption. Under the revised salary level test, exempt employees must receive at least $455 per week. The revised salary basis test clarifies the deductions that can be made from an employee s salary without loss of exempt status. The duties tests were revised to clarify whether duties truly are executive, administrative, or professional in nature. Scope of the Exemptions The new regulations clearly state that the exemptions do not apply to manual laborers or other blue collar workers. Non-management production line employees and non-management employees in maintenance, construction and similar occupations, such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers, are non-exempt under the current regulations and will remain so under the revised regulations. The new regulations unequivocally state that the exemptions do not apply to first responders, i.e., police officers, fire fighters, paramedics, emergency medical technicians and similar public safety employees, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes and similar work. These clarifying revisions regarding first responders are the result of considerable litigation over the exemption status of such employees. The Salary Level Test Under the existing regulations, an employee earning only $8,060 per year (i.e., at least $155 per week under the long test) may be classified as executive or administrative and denied overtime pay. By comparison, a 2 JACKSON L EWIS

3 minimum wage employee earns about $10, 700 per year. The final rule nearly triples the current $155 per week minimum salary level required for exempt status to $455 per week, a $300 per week increase, or $23,660 per year (the proposed final rules had called for a minimum salary level of $425 per week.) The final rule also adds a highly compensated employee test. Under this test, employees with total compensation of at least $100,000 per year will be considered exempt if, in addition, they: (a) receive at least $ per week; (b) perform office or non-manual work; and (c) customarily and regularly perform any one or more of the exempt duties of an executive, administrative, or professional employee on a regular and recurring basis. The highly compensated test in the final rule includes a $35,000 increase over the $65,000 super salary test contained in the proposed revisions. The Salary Basis Test The salary basis test has been revised to provide much needed guidance regarding the type of deductions that will convert an exempt salaried worker into an overtime eligible employee. Generally, an employee s salary basis will be defeated if deductions from his or her predetermined salary are made for absences occasioned by the employer or by the operating requirements of the businesses. In other words, if an exempt employee is ready, willing and able to work, deductions may not be made for time when work is not available (if any work was performed in that work week). The final rules contain seven circumstances for permissible deductions to the salary of otherwise exempt employees: 1) Absence from work for one or more full days for personal reasons, other than sickness or disability; 2) Absence from work for one or more full days due to sickness or disability if the deductions are made under a bona fide plan, policy or practice of providing wage replacement benefits for these types of absences; 3) Offset for any amounts received as payment for jury fees, witness fees, or military pay; 4) Penalties imposed in good faith for T he salary basis test has been revised to provide much needed guidance regarding the type of deductions that will convert an exempt salaried worker into an overtime eligible employee. violating safety rules of major significance; 5) Unpaid disciplinary suspension of one or more full days imposed in good faith for violations of workplace conduct rules; 6) Proportionate rate of full salary for time actually worked in the first and last weeks of employment; and, 7) Unpaid leave taken pursuant to the Family and Medical Leave Act. The final rules also provide a safe harbor that will preserve an employee s exempt status in the event impermissible deductions are made. An exempt employee s salary basis will not be defeated if the employer: (a) has a clearly communicated policy prohibiting improper deductions, including a complaint mechanism; (b) reimburses employees for any improper deductions; and (c) makes a good faith commitment to comply in the future. This safe harbor is not available, however, if the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints. This test replaces the so-called window of correction for improper deductions, which was the subject of conflicting court rulings. The Duties Tests The complex and outdated duties tests under the existing regulations have generated such confusion that employers and employment lawyers, as well as DOL investigators, had difficulty determining whether an employee qualified for an exemption. While the outdated regulations discuss jobs that no longer commonly exist, such as key punch operators, legmen, straw bosses and gang leaders, the new revisions focus on jobs in today s workplace. Revised Duties Test: Executive Employee Exemption An exempt executive employee s primary duty must be the management of the enterprise or of a customarily recognized department or subdivision. He or she must customarily and regularly direct the work of two or more other employees and have the authority to hire or fire other employees (or his or her suggestions and recommendations as to hiring, firing, advancement, promotion or other change of J ACKSON L EWIS 3

4 status of other employees must be given particular weight). The final rule retains the long duties test requirement that an exempt executive must have authority to hire or fire other employees (or must make recommendations as to the hiring, firing, advancement, promotion or any other change of status which are given particular weight ). To clarify the requisite degree of managerial influence, the final rule provides clarification of the term particular weight. For example, if suggestions are frequently followed, this may suggest they are given particular weight. Administrative Employee Exemption An employee will meet the revised duties test for the administrative exemption if his or her primary duty is performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer s customers; and, the primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Employers certainly will be disappointed to see the discretion and independent judgment standard that has caused so much confusion remain in the final regulations, despite its absence from the revisions proposed in March, Fortunately, the final rule provides a more detailed description of the types of duties that will satisfy this requirement than is present in the old regulations (e.g., Section , authority to formulate, affect, interpret, or implement management policies or operating practices carries out major assignments in conducting operations performs work that affects business operations to a substantial degree authority to commit employer in matters that have significant financial impact waive or deviate from established policies and procedure without prior approval. ). The final rules describe numerous positions that meet the basic requirements for the administrative exemption. The illustrative list includes insurance claims adjusters, financial services employees, and human resources professionals, as well as employees performing work in tax, auditing, marketing, quality control, and other fields. The fields of work and types of duties described as potentially exempt help to clarify the applicability of the exemption to positions that previously generated confusion for employers, employees, DOL investigators, and the courts. A ccording to the DOL, everyone will benefit from the new rules: employees will be better able to understand and assert their right to overtime pay; employers will be more able to determine and carry out their compliance obligations; the DOL will be better able to enforce the law vigorously. Professional Employee Exemption An employee is an exempt learned professional if his or her primary duty involves performance of work requiring advanced knowledge in a field of science or learning, which is customarily acquired by a prolonged course of specialized intellectual instruction. The rule defines work requiring advance knowledge as work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment. The Outside Sales Exemption The outside sales exemption has been clarified in the final rules, eliminating the confusing 20% test, which forced employers to compare the work and time of outside sales persons to that of the employer s nonexempt employees. The final rules do not add an exemption for inside sales employees. The Computer Employee Exemption Computer employees are exempt under the final rules essentially as in the existing regulations. They now are covered in their own section in the regulations. Impact of the Final Rules Based on its own economic analysis, the DOL concluded that the final rules guarantee overtime pay protection for all workers earning less than $455 per week ($23,660 annually), the new minimum salary level required for exemption. Because of the increased salary level, overtime pay protection will be strengthened for more than 6.7 million salaried workers who earn between the current minimum salary level of $155 per week ($8,060 annually) and the new minimum salary level of $455 per week ($23,660 annually). These 6.7 million salaried workers include: 1.3 million currently exempt white collar workers who will gain overtime pay protection; 2.6 million salaried white collar workers who are at particular risk of being misclassified as exempt; and 2.8 million workers in blue collar occupations whose overtime pay protection will be strengthened because their classification as nonexempt, which is based on the duties tests under the cur- 4 JACKSON L EWIS

5 rent rules, will be automatic under the final rules regardless of their job duties. Based on these statistics and its review of the anticipated impact, the DOL has stated that its revisions to the white collar exemptions strengthen overtime protection for millions of low-wage and middle-class workers, while reducing litigation costs for employers. According to the DOL, everyone will benefit from the new rules: employees will be better able to understand and assert their right to overtime pay; employers will be more able to determine and carry out their compliance obligations; the DOL will be better able to enforce the law vigorously. What Employers Should Do Now To avoid an encounter with the DOL s vigorous enforcement of the new rules for exempt employees, employers should act preventively to develop positive solutions for compliance. The 120-day period prior to the rules effective date provides employers the opportunity to consult with internal human E mployers will be disappointed to see the discretion and independent judgment standard for the administrative exemption remain in the final regulations. resource professionals, as well as inside and outside legal counsel, and formulate a detailed plan to address the changes. Now is the time to conduct a comprehensive review of all practices relevant to the FLSA and its interpretive regulations. This review should not be limited solely to matters involving the final white collar rules; it should cover all job classifications, whether exempt or not, and all pay practices. The waiting period also provides a good opportunity to take steps to correct any irregularities or vulnerabilities revealed by the review and to explain to employees the reasons for any needed corrections. SEE BELOW Answers to Frequently Asked Questions, including a 10-step action plan for complying with the new regulations and how to locate DOL resources online. A more detailed action plan is available in the online version of this article at or by contacting the Wage and Hour Compliance Practice Group (see below). A NSWERS TO F REQUENTLY A SKED Q UESTIONS ABOUT THE FINAL DOL REGULATIONS ON THE WHITE COLLAR OVERTIME EXEMPTIONS TO ASSIST EMPLOYERS IN THEIR COMPLIANCE EFFORTS with the new Department of Labor regulations on overtime exemptions, the Wage and Hour Practice Group of Jackson Lewis has prepared a list of questions and answers. Q: How much time is there to review the new rules and implement any changes? A: Unless Congress acts to block the implementation of the regulations, employers will have until August 23, 2004, to review the final regulations and implement any changes. Q: Why has the DOL changed its white collar regulations? A: The DOL believes the current regulations are outdated, confusing, unnecessarily complex and difficult for employees, employers and the DOL to understand and apply. Most employees and employers agree. The DOL also believes the current salary level of $8,060 per year is outdated and eroded the overtime protection intended by Congress. Again, most employees and employers agree. The final regulations are the DOL s attempt to clarify and simplify the regulations so employees, employers and DOL investigators can readily understand and apply the new rules. Q: What is the likelihood that Congress can successfully block implementation by the DOL? A: Within the past year, both Houses of Congress have attempted to block the March 2003 proposed regulations. On May 4, the Senate voted to approve two amendments blocking portions of the regulations from taking effect. On one amendment proposed by Sen. Judd Gregg (R-NH), the vote was unanimous to preserve the current regulatory status for 55 occupations that are said to be at risk of losing overtime protection. A majority of senators also voted in favor of an amendment by Sen. Tom Harkin (D-Iowa) to prohibit giving force or effect to any portion J ACKSON L EWIS 5

6 of DOL s final rule that would cause any worker who currently is eligible for overtime to lose that eligibility. Both amendments were offered to an unrelated export tax bill (S. 1637). We will post online updates on the status of the challenges to the new regulations as they develop: In the meantime, we do not recommend employers adopt a wait and see approach to the final regulations. Instead, employers should assess how the regulations will impact their businesses and develop a detailed implementation plan to be followed in the event the regulations take effect on August 23, Q: Why has there been so much controversy surrounding issuance of the final regulations? A: The DOL has made attempts dating back as early as 1954 to update these regulations. Unfortunately, however, the regulations have remained virtually unchanged during the past 50 years. When the DOL announced its proposed rules in March 2003, an enormous public relations campaign was implemented by organized labor and certain members of Congress to stop the proposed changes. Of the 75,280 comments DOL received on the proposed revisions, 90% of them came from organized labor, many through an orchestrated website initiative. In this election year, the rule changes have become enmeshed in partisan politics. Q: What should my company tell our employees? A: The DOL s release of the final regulations has been well publicized, and many employees are aware of the new rules and concerned about how they may impact their overtime eligibility. Employers should not notify employees until they have investigated what the impact will be. Until then, employees who ask may be told the company is reviewing the rules and upon completion will notify employees about any necessary changes to policies or procedures that will affect them. Q: Are the final regulations different from the proposed regulations released in March 2003? A: Yes. There are a number of important differences. The most substantial changes involve the minimum salary levels and the T he DOL has provided very useful information, including fact sheets and a PowerPoint presentation, on its website, DOL.gov/fairpay. duties tests. The March 2003 proposed rule included a salary level of $425 per week. The new rule has a salary level of $455. Further, the so-called super salary test, originally announced at $65,000 annual compensation, has risen to $100,000 per year. Under this super salary test an employee need only meet one of the duty tests, so long as the exempt duty is performed on a regular and recurring basis not simply something done occasionally or once a month. No pro-rata deductions may be made from the annual salary of the highly compensated employee for leave under the Family and Medical Leave Act. However, part-year employees need only be paid commensurate with the actual number of weeks worked, not necessarily the full $100,000 compensation. Salaries, commissions and non-discretionary bonuses count toward total compensation; discretionary bonuses do not. Deductions permitted from the minimum salary level of $455 per week are still limited, and a new safe harbor provision discussed in the proposed rule has been retained. Under the safe harbor provision the employer must have a written policy prohibiting impermissible deductions; this policy must be provided to all employees; the employer must reimburse any money inadvertently withheld; and the employer must not continue an improper practice once an employee has complained and made the error known to the employer. If the employer does not follow these rules, there is no safe harbor and the employer will be subject to potential back wage liability resulting from the loss of the exemption due to the improper deductions. Under the final regulations, employees duties will be measured against their primary duty, not against a 20% or 40% tolerance as previously existed under so-called long and short duties tests. There continues to be the independent judgment and discretion test for the administrative exemption. As a result of the critical comments received by the DOL, the new rules also make direct statements that certain non-management, production-line workers will not qualify for the exemption. Q: Do the final regulations differ from the current regulations? A: Yes. There are a number of important changes. The minimum salary levels 6 JACKSON L EWIS

7 have been increased to $455 per week. The duties tests for the executive, administrative, professional and outside sales employee have been changed. (See side-by-side comparison charts that follow.) The DOL has also revised the rules that govern the types of deductions that can be taken from an exempt employee s salary, as well as the possible consequences to an employer if an improper deduction is made. The final regulations also include a highly compensated employee test, which is a revised version of the super salary test proposed in March Under the new rule, if an employee earns more than $100,000 per year and regularly performs one or more exempt duties, that employee will qualify as an exempt white collar employee. This special exception does not apply to manual laborers or other blue collar employees. Q: Has the DOL begun providing its own insights or materials relating to the new regulations? A: Yes. The DOL has access to some very useful information on their website at the FairPay page, including the full text of the new rules, fact sheets addressing each of the exemption categories and a number of occupations, a Power Point presentation employers can use to train their key employees, and contact information for DOL representatives. Q: What should my company be doing now? A: Because of the activity in Congress challenging the regulations, employers should delay the implementation of any changes until the regulations actually become effective. In the meantime, employers should consider the following 10-step approach to compliance: 1) Consult with human resources and in-house or outside legal counsel to develop an implementation strategy for response to the final regulations. 2) Review salary levels and identify any current exempt employees who fall below the minimum salary level of $ per week. 3) Review any non-exempt employees whose annual earnings exceed $100,000 to determine whether they would qualify under the Highly Compensated Employee Test. 4) Review payroll practices to ensure no improper deductions are taken from exempt employees salaries. 5) Develop, implement and publicize a Safe-Harbor Deduction Policy. The policy should state the employees salaries are intended to cover all hours worked, the employer intends to pay the employees on a salary basis and will not make deductions from salary that are prohibited under the FLSA, and include a mechanism for employees to report improper deductions. 6) Institute and publicize a reporting mechanism employees can use to report payroll errors including salary deductions and incorrect paychecks. 7) Train personnel responsible for processing payroll regarding deduction policy and limitations on permissible deductions. 8) Conduct a review of non-exempt and exempt positions to determine whether any positions should be reclassified as a result of the new regulations. 9) Ensure manual laborers or other blue collar employees are not treated as exempt employees. The types of occupations that are considered under the final regulations to be non-exempt include, for example, personnel clerks, inspectors, comparison shoppers, licensed practical nurses, accounting clerks, bookkeepers, paralegals, and inside salespersons. 10) Review non-exempt pay practices. We also recommend you delay actual implementation of any changes J ACKSON L EWIS 7

8 until the effective date of August 23, 2004, to allow the maximum time period in which to determine whether the regulations will in fact take effect. For immediate and long range assistance, Jackson Lewis attorneys are prepared and available to advise clients on all aspects of comprehensive wage and hour compliance planning, including a policy and practices audit comparing the existing and new rules with current practices. FOR MORE INFORMATION, please contact the attorney with whom you regularly work, or a partner in our Wage and Hour Compliance Practice Group: Paul J. Siegel, (631) ; siegelp@jacksonlewis.com Lee A. Schreter (404) ; schretel@jacksonlewis.com James A. Prozzi (412) ; prozzij@jacksonlewis.com Robert M. Pattison (415) ; pattisor@jacksonlewis.com T HE C URRENT, PROPOSED AND F INAL DOL OVERTIME R EGULATIONS (SIDE-BY-SIDE COMPARISONS) M INIMUM S ALARY L EVEL FOR E XEMPTION CURRENT REGULATION $155 per week $8,060 annual PROPOSED REGULATION $425 per week $22,100 annual FINAL REGULATION $455 per week $23,660 annual S UMMARY OF S ALARY L EVELS AND D UTIES T ESTS ANNUAL EARNINGS CURRENT REGULATION PROPOSED REGULATION FINAL REGULATION Less than $8,060 $8,060 to $13,000 Long Duties Test $13,000 to $22,100 Short Duties Test for Higher Salaried Employees $22,100 to $23,660 Short Duties Test for Higher Salaried Employees Proposed Standard Duties Test $23,660 to $65,000 Short Duties Test for Higher Salaried Employees Proposed Standard Duties Test Standard Duties Test $65,000 to $100,000 Short Duties Test for Higher Salaried Employees Proposed Highly Compensated Test Standard Duties Test $100,000 or more Short Duties Test for Higher Salaried Employees Proposed Highly Compensated Test Highly Compensated Test 8 JACKSON L EWIS

9 E XECUTIVE E MPLOYEES D UTIES T EST CURRENT REGULATION (SHORT TEST) Whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; and Who customarily and regularly directs the work of two or more other employees. PROPOSED REGULATION With a primary duty to the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; Who customarily and regularly directs the work of two or more other employees; and Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees will be given particular weight. FINAL REGULATION Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; Who customarily and regularly directs the work of two or more other employees; and Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees will be given particular weight. A DMINISTRATIVE E MPLOYEES D UTIES T EST CURRENT REGULATION (SHORT TEST) Whose primary duty consists of the performance of office or non-manual work directly related to management policies or general business operations of the employer or the employer s customers; and Which includes work requiring the exercise of discretion and independent judgment. PROPOSED REGULATION With a primary duty of the performance of office or non-manual work related to the management or general business operations of the employer or the employer s customers; and Who holds a position of responsibility with the employer, defined as either (1) performing work of substantial importance or (2) performing work requiring a high level of skill or training. FINAL REGULATION Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer s customers; and Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. P ROFESSIONAL E MPLOYEES D UTIES T EST CURRENT REGULATION (SHORT TEST) Whose primary duty consists of the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study; and Which includes work requiring the consistent exercise of discretion and judgment; or Whose primary duty consists of the performance of work requiring invention, imagination, or talent in a recognized field of artistic endeavor. PROPOSED REGULATION With a primary duty of performing office or non-manual work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction, but which also may be acquired by alternative means such as an equivalent combination of intellectual instruction and work experience; or With a primary duty of performing office or non-manual work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. FINAL REGULATION Whose primary duty is the performance of work requiring knowledge of an advanced type (defined as work which is predominantly intellectual in character, and which includes work requiring consistent exercise of discretion and judgment) in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or Whose primary duty is the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. J ACKSON L EWIS 9

10 FEDERAL FOUR-YEAR LIMITATIONS STATUTE APPLIES TO SUIT UNDER 1991 CIVIL RIGHTS ACT A UNANIMOUS U. S. SUPREME COURT has ruled a four-year statute of limitations applies to a class action lawsuit alleging wrongful discharge, hostile work environment, and refusal to transfer in violation of the Civil Rights Act of The catchall 4-year statute of limitations, 28 U.S.C. Section 1658, was enacted by Congress to apply to causes of action arising under an Act of Congress enacted after December 1, Given that the 1991 Civil Rights Act enlarged the category of conduct for which employers could be liable, the 1991 Act qualified as an Act of Congress enacted after December 1, 1990 subject to the 4- year statute of limitations, the Court concluded. [Jones v. R.R. Donnelley & Sons Company, (No , US Sup Ct, May 3, 2004).] The plaintiffs in the case were African-American former employees of the employer s Chicago manufacturing division. In 1994, they filed a class action alleging violations of their rights under Section 1981 of the Civil Rights Act of 1866, as amended by the Civil Rights Act of Specifically, the plaintiffs alleged they were subjected to a racially hostile work environment, were given inferior employee status, and were either wrongfully terminated of denied transfers in connection with the closing of the Chicago facility. While the federal trial court determined the timeliness of the class action was governed by the catchall federal fouryear limitations statute, the U. S. Court of Appeals for the Seventh Circuit disagreed, joining two other federal appeals courts (Third and Eighth Circuits), in finding the amendments of 1991 attached to the original statute of 1866, obviously beyond the reach of the federal limitations period statute specifying December 1, Accordingly, it would be necessary to apply a state statute of limitations, and S UPREME C OURT O ne of the reasons for the enactment of the federal statute creating the four-year limitations period was to avoid the uncertainty for litigants and federal judges of determining which state statutes of limitations to apply. not the federal one, in determining whether the class action was timely filed. In reversing that decision, the Supreme Court emphasized that one of the reasons for the enactment of the federal statute creating the four-year limitations period was to avoid the uncertainty for litigants and federal judges of determining which state statutes of limitations to apply. The Court concluded that a cause of action arises under an Act of Congress enacted after December 1, 1990 and is subject to the federal four-year limitations period, if the plaintiff s claim against the defendant was made possible by a post-1990 enactment. In this case, the hostile work environment, wrongful termination, and failure-to-transfer claims arose under the 1991 Civil Rights Act in the sense that petitioners causes of action were made possible by the Act. The case has been remanded to the trial court for further proceedings in accord with the Supreme Court s decision. Although the procedural arguments and the judicial reasoning are complicated, the unanimous opinion of the Court is relatively simple. The timeliness of lawsuits alleging employer actions that were made unlawful by the Civil Rights Act of 1991 will be governed by the federal catchall 4-year statute of limitations which specifically applies to actions arising under federal statutes enacted after December 1, This holding will eliminate much of the uncertainty caused by the need to determine which state statute of limitations should apply to this kind of employment litigation. FOR MORE INFORMATION, please contact the Jackson Lewis attorney with whom you regularly work, or Gregory I. Rasin Managing Litigation Partner Jackson Lewis, New York office (212) RasinG@jacksonlewis.com 10 JACKSON L EWIS

11 E MPLOYEE B ENEFITS DOL ISSUES FINAL COBRA NOTICE REGULATIONS O N MAY 26, 2004, the Department of Labor issued final rules governing COBRA notice requirements. Generally, the final rules set new minimum standards for the timing and content requirements for providing notice of COBRA group health plan continuation coverage rights to participants and beneficiaries. The DOL included separate model notices to facilitate meeting the COBRA notice requirements at the commencement of plan coverage, and again following the occurrence of certain qualifying events. The final rules are effective for group health plan COBRA notice obligations that arise on or after the first day of the first plan year beginning on or after November 26, 2004 (the date six months after the rules were published in the Federal Register). For example, employers with calendar year group health plans will have to comply with the new rules beginning January 1, Employers will need to check their group health plan documents or insurance contracts to identify the plan year for this purpose. All employers with group health plans subject to the COBRA group health plan continuation coverage rules will need to review and revise their existing COBRA notice forms, administrative procedures, and summary plan descriptions (SPD). SPDs must include certain COBRA administrative procedures, and COBRA notices typically included in SPDs should be updated. The Jackson Lewis Benefits Group will publish a more detailed review of the final rules and can assist clients with their implementation. TO SPEAK WITH A JACKSON LEWIS ATTORNEY about the final COBRA Notice regulations, please contact our Benefits Practice Group: Michael Jacobster (914) jacobstem@jacksonlewis.com; Bruce Schwartz (914) , schwartzb@jacksonlewis.com; Robert Perry (914) , perryr@jacksonlewis.com; Allan Friedland (860) , ext. 215, friedlaa@jacksonlewis.com. M ANAGEMENT E DUCATION O PPORTUNITIES SAVE THE DATES! THE 5TH ANNUAL JACKSON LEWIS WOMEN S EMPLOYMENT LAW CONFERENCE: GROW & RENEW EAST COAST: October 21-22, 2004 THE SPA AT NORWICH 607 West Thames Street Norwich, CT hours of CLE credit, including 2.0 hours of ethics credit. * HRCI recertification credit for both conferences is pending. WEST COAST: November 4-5, 2004 CLAREMONT RESORT & SPA 41 Tunnel Road Berkeley, CA hours of CLE credit, including 1.5 hours of ethics credit. MAKE YOUR PLANS NOW to attend this special seminar created exclusively for female in-house counsel and high-level human resource executives with workplace law responsibilities. This year s program will be held in two locations: Norwich, Connecticut: October 21-22, 2004 Berkeley, California: November 4-5, 2004 The agenda includes workshops on a variety of workplace law issues. Registration is limited, so that those who attend will have an opportunity to meet and interact with everyone present. FOR MORE INFORMATION AND REGISTRATION, please contact: Michelle Stouber, Jackson Lewis; phone: (914) ; StouberM@jacksonlewis.com THE JACKSON LEWIS 2ND ANNUAL GOLF INVITATIONAL MARK YOUR CALENDAR NOW for the return of this successful event combining workplace law and golf at their best. October 3-5, 2004 MID PINES INN & GOLF CLUB 1010 Midland Road Southern Pines, NC FOR MORE INFORMATION AND REGISTRATION, please contact: MICHELLE STOUBER, Jackson Lewis; phone: (914) ; StouberM@jacksonlewis.com J ACKSON L EWIS 11

12 M M ANAGEMENT E E DUCATION O O PPORTUNITIES (continued) JACKSON LEWIS OFFICES: ATLANTA, GA (404) BOSTON, MA (617) CHICAGO, IL (312) DALLAS, TX (214) GREENVILLE, SC (864) HARTFORD, CT (860) LONG ISLAND, NY (631) LOS ANGELES, CA (213) MIAMI, FL (305) MINNEAPOLIS, MN (612) MORRISTOWN, NJ (973) NEW YORK, NY (212) ORLANDO, FL (407) PITTSBURGH, PA (412) SACRAMENTO, CA (916) SAN FRANCISCO, CA (415) SEATTLE, WA (206) STAMFORD, CT (203) WASHINGTON DC REGION (703) WHITE PLAINS, NY (914) E DITORIAL B OARD ROGER S. KAPLAN MARGARET R. BRYANT THIS BULLETIN is published for clients of the firm to inform them of labor and employment developments. Space limitations prevent exhaustive treatment of matters highlighted. We will be pleased to provide additional details upon request and discuss with clients the effect of these matters on their specific situations. Copyright: 2004 Jackson Lewis LLP Reproduction in whole or in part by any means whatsoever is strictly prohibited without the advance written permission of Jackson Lewis. SAVE THE DATE! HOW TO TAKE CONTROL OF WORKPLACE INJURY AND DISABILITY COSTS: YOUR TEAM SOLUTION AUGUST 12, :00 AM 5:00 PM PALMER HOUSE HILTON 17 East Monroe Street Chicago, IL Plan now to join Jackson Lewis, WorkSTEPS, OneComp and Executive Enterprises Institute for a new one-day program addressing the spiraling costs of employee injuries, absenteeism and illness. Using the TEAM approach to identify and minimize the sources of these costs, this program provides attendees the information and tools to develop and implement practical techniques for a safer, healthier and lower-risk work environment. The program has been pre-approved for Continuing Legal Education credits in California, New York, and will meet the requirements for most other states (depending on varying state rules and regulations. To verify acceptance and hours in your state please contact our continuing education coordinator at (800) , ext.210). It is approved for Recertification Credit for HR Directors for SPHR and PHR Re-Certifications through HRCI. Agenda topics include: Getting Ready to Think Outside the Bundle COUNTING THE COSTS: A Financial Distribution Study on Maximizing Your Insurance Dollar Auditing and Diagnosing Your Company s Work Injury and Disability Experience Baseline Health Information that Impacts Bottom-Line Profitability TAKING CONTROL: Let s Implement Employer-Based Return-to-Work Systems Trends and Traps of Workers Compensation that Affect Costs Overcoming Potential Labor Union Obstacles Inhibiting Success Case Study on the Laidlaw Work Injury and Disability Management Program Outcome and Cost Benefits Analysis Study on Fleetwood Enterprises Work Injury and Disability Management Program Panel discussion will feature Jackson Lewis partners FRANCIS P. ALVAREZ, MICHAEL J. LOTITO, and MARTIN F. PAYSON. For more detailed information on the program and the sponsors WorkSTEPS, OneComp and Executive Enterprises, please visit and search by event date of August 12, You also may contact Executive Enterprises Institute, phone: (800) ; fax: (800) ; website: All we do is work sm 12 JACKSON L EWIS