Texas Court Stops US DOL Again – Eastern District Enjoins Overtime Rule Only Days Before Scheduled Effective Date, by Debbi M. Cohen*

In case you missed it while taking a little break for the Thanksgiving holiday, on November 22, 2016, the United States District Court for the Eastern District of Texas gave employers, business groups, states, and other interested parties the relief they had sought from imminent implementation of the US Department of Labor’s (DOL’s) new overtime rule when it temporarily stopped the new rule from taking effect as scheduled on December 1. As discussed in previous blog posts, the new Fair Labor Standard Act (FLSA) “white collar” overtime rule would have more than doubled the salary threshold for exempt status under the FLSA overtime pay exemption. The rule had been challenged in two lawsuits consolidated before the court. In granting the Plaintiffs’ requested relief, the judge stated, "A preliminary injunction preserves the status quo while the court determines the department's authority to make the final rule as well as the final rule's validity."

The temporary injunction is national in scope, blocking the new overtime rule from going into effect anywhere. In granting the temporary injunction, the judge indicated in his opinion his belief that the Plaintiffs in this case are likely to prevail on the merits. Of course, the DOL is likely to appeal the court’s decision and to continue to pursue its position on the merits in the lower court so the judge’s decision at this point is not final. Nonetheless, it may be a while before another decision is made.

What this means for employers is that, for now, the existing “white collar” overtime rule that has been in place since 2004 will remain in place, including the current lower salary threshold combined with a duties test. In the meantime, employers who were in the process of changing their pay practices in time for the December 1 implementation deadline of the new rule may find themselves between a rock and a hard place wondering whether to continue with pay changes or to revert to past practices. The court’s decision does not require employers who have already reclassified employees or made salary increases in anticipation of compliance with the higher threshold levels of the new rule to revert to the current rule. Employers generally also cannot recoup payments made to employees in anticipation of the required changes. Further, for those employers who have not yet implemented changes, while changes may no longer be legally mandated, at this late date, it may be prudent to consider what communications have already been made to employees, what other employers are doing and whether additional changes to your practices will have employee relations or administrative consequences. For specific questions about your own compliance efforts in light of this new development, consult counsel.

*Debbi M. Cohen is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer

Voters in 7 States Approve Recreational or Medical Marijuana Use—Is This the Tipping Point for Legalization? By Barbara Johnson

Introduction

On election day, voters in California, Nevada, Maine, and Massachusetts approved the legalization of marijuana for recreational purposes. An additional three states, Florida, Arkansas and North Dakota, approved the legalization
of marijuana for medicinal purposes—a huge victory for the proponents of legalized marijuana. Of all the initiatives up for vote, the initiative in Arizona was the only one rejected by the voters. The most significant victory was the legalization of recreational
use of marijuana in California. There’s an adage that goes, “As California goes, so goes the country”. If that adage proves true, Tuesday’s election is a watershed moment for the legalization movement.

Even though Colorado and Washington voters led the way with the passage of initiatives in November 2012 that legalized the recreational use of marijuana, legalization of marijuana for recreational purposes in California, a state
with the economy of a large industrial country, is a game changer. With legalization in California and other key states, the federal government faces growing pressure to change its stance on marijuana as an illegal drug for which there is no accepted medical use and a high potential for abuse (as defined by the Food & Drug Administration). Under federal law, marijuana is classified as a Schedule I substance, the same as drugs such as heroin and LSD.

In August of 2016, the DEA responded to a petition to remove marijuana from Schedule I. In its response to the petition, the agency stated that there is no accepted medical use for marijuana because "the drug’s chemistry is not
known and reproducible; there are no adequate safety studies; there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts; and the scientific evidence is not widely available. There is no consensus among qualified experts that marijuana is safe and effective for use in treating a specific, recognized disorder. At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically
evaluate safety and efficacy."

RECREATIONAL MARIJUANA ON 2016 BALLOT: RESULTS

Note: Results in some states have not been certified and are not available through a government source. Politico is used for ballot results in states where results are not available through a government source.

California

Voters in California passed an initiative that will legalize the recreational use of marijuana for adults over the age of 21. The initiative passed[1] by a 56-44 margin.

California has a long history of voting on marijuana reform. The state passed[2]
the country’s first medical marijuana law in 1996. The latest measure, Proposition 64, the Adult Use of Marijuana Act (AUMA),[3] legalizes:
-the possession of 1 ounce of marijuana flower, or up to 8 grams of cannabis

-concentrates for age 21 and older

-cultivation of up to 6 plants

-industrial cultivation of hemp

-taxed and regulated system for a recreational marijuana industry

-Restrictions on marketing to minors, localized tax rates, and restrictions on commercial marijuana operators determined on a county / municipal level.

-systems for reducing sentences and expunging past marijuana convictions

Implications for the Workplace in California

Proposition 64 allows employers to have drug-free workplace policies that prohibit marijuana use by employees. It also allows federally contracted employers to continue complying with federal drug testing requirements without
fear of violating state or federal law. However, the California Constitution protects an employee’s right to privacy and drug testing may not be allowed except for employees in safety sensitive positions.

Nevada

Voters in Nevada passed[4] an initiative (Question 2) that legalizes the recreational use of marijuana for adults over the age of 21. The initiative passed / failed by a 54-46 margin. The state passed medical marijuana (Question 9)[5]
in 2000. The recreational initiative allows for:

-possession of 1 ounce of marijuana,

-a taxed and regulated recreational cannabis industry with tax revenue supporting K-12 education,

-includes a clause that allows anyone who does not live within 25 miles of a marijuana store to grow up to 6 marijuana plants.

Implications for the Workplace in Nevada

Employers may continue to enact and enforce policies that restrict drug use, including marijuana. And this includes drug testing.

Maine

Voters in Maine passed[6] an initiative (Question 1) that legalizes the recreational use of marijuana for adults over the age of 21. The initiative passed by a 50.15-49.85 margin. Under the law, Maine’s Department of Agriculture, Conservation and Forestry is responsible for regulating and controlling the cultivation, manufacture, distribution and sale of marijuana in the state

The new law legalizes:

-the possession of up to 2 1/2 ounces of marijuana,

-the possession, cultivation and transportation of up to 6 flowering marijuana plants, 12 immature marijuana plants and unlimited seedlings, and possession of all the marijuana produced by the marijuana plants at that person’s residence.

Implications for the Workplace in Maine

The amendment for MRSA §2454(3) adds: "A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person's consuming marijuana outside
of the school's, employer's or landlord's property."

This amendment may restrict pre-employment drug testing for marijuana. The law specifically allows employers to have workplace policies that restrict employee marijuana use.

Arizona

Voters in Arizona failed to pass[7] an initiative (Prop 205) that would have legalized the recreational use of marijuana for adults over the age of 21. The initiative failed by a 52-48 margin. Medical marijuana is already available for almost 100,000 cardholders; however, recreational marijuana is still illegal.

The Legalization and Regulation of Marijuana Act (Proposition 205) initiative would have legalized:

-the possession of up to 1 ounce of marijuana,

-a taxed and regulated recreational cannabis industry,

-adults over 21 would have been able to grow up 6 marijuana plants in an enclosed, locked space within their homes and possess the marijuana produced by those plants in the location where it was grown,

-A limit of the total marijuana plants grown in a single residence would have been limited at 12,

-The creation of a new agency called the Department of Marijuana Licenses and Control for oversight of the marijuana industry

Massachusetts

Voters in Massachusetts passed[8] an initiative (Question 4) which legalizes the recreational use of marijuana for adults over the age of 21. The initiative passed by a 54-46 margin. The Question 4 initiative regulates and taxes marijuana for recreational use like alcohol.

The initiative legalizes:

-possession up to 1 ounce of marijuana outside of an individual’s residence,

-possession of up to 10 ounces of marijuana in an enclosed, locked space within their residences,

-growing up to 6 marijuana plants in an enclosed, locked space within their residences and possess the marijuana produced by those plants in the location where it was grown. No more than 12 total marijuana plants can be grown in a single residence.

Implications for the Workplace in Massachusetts

The law does not mention drug testing, but it does state that it does not affect employer's authority to enact workplace policies.

MEDICAL MARIJUANA 2016 BALLOT RESULTS

Florida

Voters in Florida passed[9] an initiative (Amendment 2) that legalizes the medical use of marijuana. The initiative passed by a 71-29 margin. Previously, a medical marijuana initiative in Florida had been defeated by a 2% margin in 2014.

The 2016 Amendment 2 initiative legalizes:

-the medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician,

-allows caregivers to assist patients’ medical use of marijuana,

-Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers.

Implications for the Workplace in Florida

Amendment 2 restricts on-site marijuana use at work, and it is unclear how this law will affect drug testing programs.

Arkansas

Arkansas had two competing proposals: The Arkansas Medical Cannabis Act (Issue 7) and the Arkansas Medical Marijuana Amendment (Issue 6). Issue 7 was struck from the ballot on October 27th, 2016 by the Arkansas Supreme Court due
to invalid signatures. Voters in Arkansas passed Initiative 6, legalizing the medical use of marijuana. Issue 6 passed by a 53-37 margin. Issue 6 makes repeal of the law impossible as it is a state constitutional amendment. It legalizes medical cannabis under guidance of a physician. The program under the control of Arkansas Alcoholic Beverage Control and a new medical marijuana commission.

Implications for the Workplace in Arkansas

Issue 6 states "An employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual's past or present status as
a qualifying patient or designated caregiver" (Sec. 3). This provision will likely create require employers to be able to demonstrate an employee is impaired before terminating or disciplining an employee for testing positive for marijuana.

Montana

Voters in Montana passed[10] an initiative (I-182) that further reduced restrictions on the medical use of marijuana. The initiative passed by a 58-42 margin.

Montana reinstated its medical marijuana laws through I-182. The initiative allows patients to access and use marijuana for several debilitating illnesses. Medical marijuana was originally made legal in 2004 in the state. However, legislative restrictions made implementation of the law a challenge.

The new measure (I-182) repealed former measure SB 423's requirements that medical marijuana providers have no more than three patients and the state review physicians who prescribe marijuana to more than 25 patients per year.
The measure allowed physicians to prescribe marijuana for patients diagnosed with chronic pain or post-traumatic stress disorder (PTSD).

Implications for the Workplace in Montana

The existing medical marijuana law in Montana does not prohibit workplace drug testing and the newly approved initiative does not change existing law in this regard.

North Dakota

A measure in North Dakota (Measure 5) legalized the limited use of medical marijuana. It passed[11] by a 64-36 margin.

The initiative made it legal for North Dakota residents who suffer from one of several debilitating illnesses to use marijuana with a doctor’s permission. They can possess up to 3 ounces of marijuana for medical purposes from either a state-licensed dispensary or a personally grown supply.

Implications for the Workplace in North Dakota

The new law does not mention the workplace or drug testing.

LEGALIZATION OF MARIJUANA AS OF NOVEMBER 12, 2016
*Note: This map does not include states that have allowed limited medical use of CBD oil or states that have decriminalized marijuana. There are variations in the states marked as illegal in the map above.

As this map demonstrates, more than half the states in this country allow individuals to use marijuana for recreational and/or medicinal purposes. Unlike Department of Transportation and the Department of Defense regulations which
call for zero tolerance of marijuana use, the trend is for state laws to require an employer to show that an employee was “impaired” by marijuana before taking an adverse employment action.

Historically, employers have been able to rely upon marijuana’s designation as a Schedule I illegal drug to justify discipline of employees under workplace drug testing programs and courts consistently have sided with employers
in challenges to termination decisions based on positive tests for marijuana. However, it is unlikely that this trend will continue.

This is an ideal time for employers to reexamine their substance abuse policies to ensure the policies conform to state law. The number of employees who are using marijuana in conformance with state law will continue to grow. Employers
should decide how to address this trend. There are several factors to consider, including: is the workforce covered by Department of Transportation regulations, which trump state law? Are employees in safety sensitive positions? What is the effect of the legalization on the employer’s ability to hire and retain qualified employees? Does the employer’s substance abuse policy address the serious implications of prescription drug or opiate abuse?

In the next part of this series, we will continue to explore issues related to the legalization of marijuana, including the challenges of measuring whether an individual is impaired by marijuana, emerging technology to measure
the presence of marijuana, and issues related to possession of marijuana.

References

[1]
http://vote.sos.ca.gov/returns/maps/ballot-measures/prop/64/

[2]
https://www.cdph.ca.gov/programs/MMP/Pages/CompassionateUseact.aspx

[3]
http://voterguide.sos.ca.gov/en/propositions/64/

[4]http://www.politico.com/2016-election/results/map/ballot-measures/nevada/

[5]
http://www.leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/2000.pdf

[6]
http://www.politico.com/2016-election/results/map/ballot-measures/maine/

[7]
http://www.politico.com/2016-election/results/map/ballot-measures/arizona/

[8]
http://www.politico.com/2016-election/results/map/ballot-measures/massachusetts/

[9]
http://www.politico.com/2016-election/results/map/ballot-measures/florida/

[10]
http://mtelectionresults.gov/resultsSW.aspx?type=BQ&map=CTY

[11]
http://www.politico.com/2016-election/results/map/ballot-measures/north-dakota/

Barbara Johnson is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer

Election Day is Coming – Are You Prepared to Respond to Requests for Time Off for Voting? By Debbi Cohen*

Election Day – November 8 – is quickly approaching. Many states require that employees have reasonable time off work to vote – typically two or three consecutive hours (more in some states) when the polls are open, which could be before or after the employees’ scheduled workday. If employees do not have reasonable time to vote, including either before or after their scheduled workday, employers generally must permit them, upon reasonable advanced notice, to take a reasonable amount of time off from work to vote. Typically, employers may not require employees to use meal or other break times to vote, but if an employee who does not have reasonable time before or after the scheduled workday requests time off to vote, the employee’s supervisor may schedule the employee’s time off at the beginning or end of the workday. The amount of time off that will be considered reasonable will depend upon the circumstances, including the polling hours, distance from work, time of day, business needs and other appropriate factors. Supervisors should inform employees in advance if proof of voting or attempting to vote will be required to substantiate an absence from work, particularly if needed to verify pay status or avoid adverse attendance consequences.

In most states, employers that are required to grant employees time off during the workday to vote do not have to pay employees for the time off. However, in an increasing number of states, if an employee does not have reasonable time, as determined by state law, to vote before or after work, employers must not only grant employees time off to vote, but also cannot withhold pay for the time they are off work or otherwise make a deduction in their pay, thereby essentially making the time off for voting “with pay.” These states include: Alaska, Arizona, California, Colorado, Hawaii, Illinois, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wyoming. Of course, employers in these states can require employees fulfill advanced notice requirements for taking leave and provide proof of voting before paying employees.

Finally, there are a few states in which employers are required to grant reasonable voting leave regardless of whether there is reasonable time to vote outside the employee’s scheduled workday, though employees may be required to provide advanced notice, and there are states that are simply ambiguous as to whether employees must be paid when they take time off from work during their scheduled workday to vote, since the state law simply says that employers may not restrain or otherwise interfere with the exercise of voting rights or inflict any injury or loss upon employees for taking a reasonable amount of time to vote. In this regard, some states, again with advanced notice, also may require more than the customary two to three hours of time off, and two states – Minnesota and West Virginia – require employers, upon request, to grant employees time off with pay during the workday regardless of other possible voting opportunities. Consequently, it is critical that managers and supervisors are prepared to respond to employee voting leave requests and know who to contact if they have questions regarding voting leave or employee requests for time off to serve as election judges or to perform other election-related work.

*Debbi Cohen is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer

White House Introduces Worker.Gov, By Debbi Cohen

On October 28, the White House introduced a new website designed to make it easier for employees to learn about their employment rights and, if appropriate, to file charges and complaints against their employers. The new site – Worker.gov – is in beta version and is supposedly designed to improve with use and feedback.

Unlike agency specific websites, employees who visit Worker.gov do not need to know which law they think may have been violated or which agency they think can help them. Instead, they are led through a series of user-friendly questions about their lives and jobs, which direct them down paths to determine whether they need assistance, based on the answers they provide, and in the end, if deemed warranted by the site, they are given the option of filing a charge or complaint with the appropriate agency. The site is a partnership among the U.S. Department of Labor, the National Labor Relations Board, the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice.

Information on Worker.gov is provided under broad headings related to equal treatment, “the right to engage with others to improve wages and working conditions,” the right to a safe and healthy work environment, and the right to be paid. According to the DOL’s press release announcing the site, this is “providing workers access to critical information about their rights under the major labor statutes in a way that makes sense to them.” The focus is on the workers’ sense of fairness, rather than on particular laws. Of course, since unfair is not generally unlawful, it remains to be seen what effect, if any, launch of this site will have on the filing or processing of charges and complaints.

Debbi Cohen is Counsel with Benton Potter & Murdock, P.C.
Important Notice and Disclaimer

DOL Issues Final Rule Establishing Paid Sick Leave for Federal Contractors – Are You Ready? By Debbi Cohen

Last week, the U.S. Department of Labor (DOL) published its Final Rule to implement Executive Order (E.O.) 13706, which was signed by President Obama on Labor Day 2015, establishing paid sick leave for Federal Contractors. In short, the Rule will apply to “covered contracts” – defined broadly and with limited exceptions in the Rule – which are newly solicited, awarded outside the solicitation process, renewed, extended, or amended on or after January 1, 2017, and it requires parties that enter into covered contracts with the Federal Government to provide “covered employees” – again, there are limited exclusions, including a temporary exclusion for employees covered by a collective bargaining agreement – with up to 7 days (56 hours) of paid sick leave annually.
Even for those Federal Contractors that already offer paid time off to their existing workforces, now would be a good time to review your policies and procedures to ensure they satisfy the requirements of the E.O. and Final Rule. In addition to specific requirements related to leave accrual rates, certification and use, there are carryover provisions and other stringent administrative obligations, recordkeeping, contract clause and notice requirements, and anti-retaliation prohibitions. For compliance assistance, consult counsel.

Debbi Cohen is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer

Important Notice and Disclaimer

The materials and information available at bpmlawyers.blogspot.com are provided for informational purposes only and not for the purpose of providing legal advice or soliciting legal business. Recipients of content from this site, clients or otherwise, should not act or refrain from acting on the basis of any content included in this Blog without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. The content of this Blog is general information and may not reflect current legal developments, verdicts or settlements. Benton Potter & Murdock expressly disclaims all liability with regard to actions taken or not taken based upon any or all of the contents of this Blog. Use of and access to this Web site/blog or any of the e-mail links contained within the site do not create an attorney-client relationship between (a) the authors, editors or Benton Potter & Murdock, and (b) the user or browser. The opinions expressed at or through this site/blog are the opinions of the authors of each specific post and may not reflect the opinions of the editors, Benton Potter & Murdock or any of its attorneys or clients. Unsolicited information sent to Benton Potter & Murdock by persons who are not already clients of the firm is not subject to any duty of confidentiality on the part of the firm.

Barbara L. Johnson to speak at 2016 Minority In-House Counsel Association Conference

Barbara L. Johnson, Counsel with Benton, Potter & Murdock has been invited to speak about Going Global: Developing International Expertise at the 2016 Minority In-House Counsel Association Conference. The Conference will be held on October 25-26 at the Metropolitan Club in Chicago, Illinois. This conference is designed to capture the variety and experience of minority in-house and corporate counsel. The conference will feature a luncheon presentation by Paula Boggs and N. Cornell Boggs, III, who will discuss “What Do I Need to Start Feeding My Kids Now to Make GCs Out of Them,” as well as presentations by other general counsel from around the country. Benton, Potter & Murdock is pleased to be a sponsor of the 2016 MIHCA Conference. If you are interested in attending or sponsoring this event, you may contact Robert. Johnson@MyMIHCA.org.

Ms. Johnson has more than 25 years of experience in representing employers in employment law matters and has tried more than 30 employment law cases. She is a member of the bars of the United States Supreme Court, the District of Columbia, Texas, and Michigan. She is admitted to practice before the: District Court for the District of Columbia; Fifth Circuit Court of Appeals; and Northern, Southern, Eastern and Western District of Texas. She is certified by the Texas Board of Legal Specialization in Labor and Employment Law, and serves as President, National Employment Law Council, and Chair, the Employment Law Committee of the Business Law Section of the American Bar Association. She is a member of the: American Bar Association’s College of Labor & Employment Lawyers; Texas College of Labor & Employment Lawyers; National Bar Association; International Association of Defense Counsel; Defense Research Institute; and Litigation Counsel of America. She is listed in the International Who’s Who of Business Lawyers, and has been recognized by Washington DC Super Lawyers. Ms. Johnson can be reached at: blj@bpmlawyers.com; 571-356-9007.

Lawsuits Raise Eleventh Hour Challenges to DOL Final Rule On FLSA Overtime Regulations, by Debbi Cohen

With the Department of Labor’s (DOL’s) Final Rule updating the Fair Labor Standards Act (FLSA) overtime regulations scheduled to take effect barely two months from now on December 1, two lawsuits have just been filed seeking to stop the Rule from being implemented as planned. Both lawsuits, one of which was filed by 21 primarily Republican led states, and the other of which was filed by a consortium of business groups including the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Retail Federation, were filed in the same federal court in the Eastern District of Texas. While each group of plaintiffs makes legal arguments specific to its own circumstances, both groups essentially attack the wide-scale workforce restructuring compliance with the New Rule will require along with the potential for hardship they argue could result from new labor costs and decreased workforce flexibility, particularly for smaller employers or organizations with budgetary constraints.
Shortly after the lawsuits were filed, the DOL issued a statement in which Secretary of Labor Thomas E. Perez stated, “We are confident in the legality of all aspects of our final overtime rule.”

As discussed in a prior blog post, the Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional (“white collar”) workers to be exempt. Key provisions of the Final Rule include:

1. It sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, which is currently the South, at $913 per week or $47,476 annually for a full-year worker;

2. It sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally, which is currently $134,004; and

3. It establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

The Final Rule also amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new salary level.

Even though it is highly likely that the lawsuits were filed in Texas because the court there is viewed as both potentially favorable to the plaintiffs in these cases and known to move quickly, employers should not stop preparations they may have already begun, if any, to comply with the new regulations, as there has been no change as yet in the December 1 effective date of the Final Rule. For specific questions you may have regarding ongoing compliance efforts, consult counsel.

Debbi Cohen is Counsel to Benton Potter & Murdock, P.C.

Important Legal Notice and Disclaimer

Important Announcement from the National Association of Minority and Women Owned Law Firms (NAMWOLF)

Benton Potter & Murdock is a proud member of the National Association of Minority and Women Owned Law Firms (NAMWOLF). On September 21, 2016, NAMWOLF released the following landmark announcement:

NAMWOLF is pleased to announce that effective immediately, LGBT owned firms that are NGLCC-certified firms and meet our other law firm admission criteria are eligible to be member firms in our organization. Please review www.namwolf.org for more detailed information regarding our law firm admission criteria. We remain dedicated to assessing and maximizing opportunities for all our diverse member firms. For questions, please contact NAMWOLF's CEO, Joel Stern at joel_stern@namwolf.org.

Join Benton Potter & Murdock, and Atkinson-Baker Court Reporters on the National Mall for the Opening Ceremony of the National Museum of African American History and Culture

In conjunction with Atkinson-Baker Court Reporters, Benton Potter & Murdock will be gathering on the National Mall to enjoy the opening ceremony events for the National Museum of African American History and Culture (NMAAHC) on Saturday, September 24th, 2016. Please join us for the ceremonies.

For those of you planning on attending the Opening Ceremony of the NMAAHC on Sept 24th, Benton Potter & Murdock, along with Atkinson-Baker Court Reporters, will be meeting at Café du Parc* between 8:30-9:00 am and will venture forth into the National Mall at 9:30 am to find a good place from which to witness the ceremony. If you plan to join us, please shoot an email to John Murdock at jm(at)bpmlawyers.com or call 703.992.6950.

Please join us. All friends and family members are welcome - we hope to see you there!

*CAFE DU PARC (LOCATED IN THE WILLARD INTERCONTINENTAL HOTEL)
1401 Pennsylvania Avenue N.W. Washington, D.C. 20004

(Photos of the museum are Smithsonian Museum images.)

Benton, Potter & Murdock Participating in 2016 NAMWOLF Annual Meeting & Law Firm Expo – September 14-17, 2016, in Houston!

Benton, Potter & Murdock is very excited to be participating in the 2016 NAMWOLF Annual Meeting & Law Firm Expo in Houston, Texas September 14-17, 2016.

The NAMWOLF Annual Meeting & Law Firm Expo is a three-day conference providing unique opportunities to connect corporate counsel from Fortune 1000 companies and minority and women owned law firms. The conference features NAMWOLF’s signature event, the Law Firm Expo, which provides an opportunity for In-House Counsel to meet with the Nation’s top minority and women owned law firms in a relaxed networking environment.

Benton Potter & Murdock is proud to be part of this event. Join us next week at the Hilton Americas-Houston for your opportunity to meet with the top minority and women owned law firms in the country, as well as in-house counsel from some of the Nation’s leading corporations.

BARBARA L. JOHNSON JOINS BENTON POTTER & MURDOCK, P.C. AS COUNSEL

Benton Potter & Murdock, P.C., is pleased to announce that Barbara L. Johnson is now Counsel to the firm. She brings a wealth of experience handling a broad range of labor and employment legal issues, including civil rights discrimination claims in federal and state court, class and collective actions, whistleblower/retaliation claims, wage and hour claims, public law (municipalities and schools), breach of contract claims, and arbitrations. She also represents employers before state and federal agencies, including the Equal Employment Opportunity Commission, state Human Rights agencies, the Department of Labor, and the Department of Justice. She assists employers with developing and implementing employment policies, conducting workplace investigations, regulatory and compliance matters, implementing diversity and leadership programs, and day-to-day employment law issues.

Ms. Johnson has more than 25 years of experience in representing employers in employment law matters and has tried more than 30 employment law cases. She is a member of the bars of the United States Supreme Court, the District of Columbia, Texas, and Michigan. She is admitted to practice before the: District Court for the District of Columbia; Fifth Circuit Court of Appeals; and Northern, Southern, Eastern and Western District of Texas. She is certified by the Texas Board of Legal Specialization in Labor and Employment Law, and serves as President, National Employment Law Council, and Chair, the Employment Law Committee of the Business Law Section of the American Bar Association. She is a member of the: American Bar Association’s College of Labor & Employment Lawyers; Texas College of Labor & Employment Lawyers; National Bar Association; International Association of Defense Counsel; Defense Research Institute; and Litigation Counsel of America. She is listed in the International Who’s Who of Business Lawyers, and has been recognized by Washington DC Super Lawyers.

Ms. Johnson can be reached at: blj@bpmlawyers.com; 571-356-9007.

DEBBI M. COHEN JOINS BENTON POTTER & MURDOCK, P.C. AS COUNSEL

Benton Potter & Murdock, P.C., is pleased to announce that Debbi M. Cohen is now Counsel to the firm. Ms. Cohen has spent over 25 years successfully working on behalf of employers in all aspects of traditional labor law, labor and employee relations, employment law and litigation. She brings a wealth of experience handling a broad range of labor and employment legal issues. She provides counsel, strategic support, investigative, and alternative dispute resolution services to businesses seeking to enhance operations by minimizing workforce disruptions and resolve workplace disputes at the earliest possible opportunity and lowest possible cost. Ms. Cohen represents employers before federal courts and administrative agencies, including the Equal Employment Opportunity Commission, state Human Rights agencies, the National Labor Relations Board and the Department of Labor. Her services include counseling related to all aspects of the employment relationship; handling discrimination charges and other employment complaints; collective bargaining; grievance handling, mediations and arbitrations; labor and employee relations strategic planning, particularly related to mergers, acquisitions and divestitures, and government contractor compliance; and assisting employers with developing and implementing employment policies, practices and training.

Ms. Cohen is a member of the bars of the United States Supreme Court, the District of Columbia, and Tennessee, and is a mediator and registered neutral with the Georgia Office of Dispute Resolution.

Ms. Cohen can be reached at: dcohen@bpmlawyers.com; 202-798-6053.

Final Rule and Guidance Issued on Fair Pay and Safe Workplaces Executive Order for Federal Contractors, by Debbi Cohen

The Federal Acquisition Regulations Council (“FAR Council”) and the U.S. Department of Labor (“DOL”) have issued their Final Rule and Guidance implementing President Obama’s Executive Order 13673 – “Fair Pay and Safe Workplaces.” Together, the Rule, Guidance and commentary total over 800 pages, and is effective October 25, 2016.
As a reminder, under some of its more onerous elements, E.O. 13673, which was issued on July 31, 2014, requires that companies bidding on federal contracts valued at over $500,000 have to indicate at the initial bid submission stage whether they have had any “administrative merits determinations, arbitral awards or decisions, or civil judgments”rendered against them during the preceding three-years for violations of specified federal labor and employment laws and/or their “equivalent state laws.” The information disclosed will then be used by contracting officers, in consultation with an agency’s “labor compliance advisor,” (“ALCA”) to determine whether the bidder has a satisfactory record of integrity and business ethics to obtain the federal contract. E.O. 13673 also requires that bidding contractors ensure that their subcontractors meet the same requirements, and that both successful primes and their subs update information semi-annually during the term of the contract.
Although effective October 25, under the new Rule, disclosure requirements contained in the E.O. will only apply to solicitations valued at $50 million or more until April 25, 2017; thereafter, the disclosure requirements will begin to be included in solicitations valued at $500,000 or more. Further, although the Proposed Rule contained a three-year look back for covered violations, the Final Rule only requires contractors to look back one year when the Rule first becomes effective. The look-back period will then increase gradually each year until October 2018 when it will reach the proposed three-year look-back period.
One significant change between the Proposed Rule and the Final Rule involves the reporting obligations of subcontractors. First, subcontractor reporting is not required to begin until October 25, 2017, a year after prime contractor reporting. Second, prime contractors will no longer be responsible for assessing the labor violations of their subcontractors as initially proposed. Rather, covered subcontractors must now report their labor violations directly to the appropriate ALCA, who will assess the disclosed violations and make a recommendation regarding the suitability of the subcontractor, which the subcontractor will then report back to the prime contractor.
As noted in prior posts, it is not too soon to begin preparing for compliance with E.O.13673. In particular, you could, in consultation with counsel, (1) review your records for reportable events; (2) check to ensure you have processes in place to handle compliance, reporting and corporate oversight for record-keeping; (3) confirm you have processes in place to ensure appropriate remedial actions are taken in the event potential violations of the specified laws occur, and that remedial actions are recorded for mitigation purposes; (4) implement procedures for monitoring subcontractor compliance; and (5) perhaps reconsider strategies for resolving the types of claims covered by E.O. 13673, since even entering into a voluntary settlement agreement or consent order, which may otherwise have made good business or financial sense before E.O. 13673, could have different and possibly adverse consequences going forward. In this regard, it is important to note that, to date, the DOL has still not released a comprehensive list of state laws that are covered by the E.O., but the final guidance just issued did clarify the scope of the administrative determinations that could be considered violations against a contractor. These include EEOC reasonable cause determinations, NLRB complaints, Wage and Hour unpaid wage determinations (WH-56), OSHA citations, and OFCCP show cause notices, to name a few troubling examples.

Debbi Cohen is Counsel to Benton Potter & Murdock, P.C.

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