Be Prepared Even if Taking the Wait and See Approach

by FordHarrison
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My son is addicted to movie trailers. Don’t get me wrong, I love movie trailers myself, but my son takes it to another level. I recently checked the YouTube history on the iPad we permit our kids to use and found that instead of playing games on the multitude of kid-friendly applications we downloaded, my son has been digesting trailers for upcoming movies via YouTube on a fairly regular basis. The funny thing is, it hasn’t been my five year old son, but rather my three year old who has taken to this habit, allowing me to come to four conclusions.

First, my three year old somehow knows how to navigate YouTube even better than I do. Second, now I know why my son keeps beating his chest like a gorilla and then roaring (Thank you trailer for Kong: Skull Island), as well as why he keeps asking me “Where are the beasts?” (Thank you trailer for Fantastic Beasts and Where to Find Them). Three, I guess I need to spend Thanksgiving weekend putting some parental restrictions on the Ipad and/or YouTube before this gets really out of hand. And four, there are a lot of movies coming out soon, which makes sense because it is the holiday season.

Want comedy? Office Christmas Party (referenced in my colleague Robin Kallor’s prior post), Bad Santa 2 or Edge of Seventeen might be your cup of tea. Into comic book movies? Doctor Strange is out, but there’s also Wonder Woman and Guardians of the Galaxy 2 coming soon. Hardcore fans of established franchises (i.e. Harry Potter and Star Wars)? Then you’ve got the aforementioned Fantastic Beasts, as well as Rogue One: A Star Wars Story. Interested in movies with early Oscar buzz and that range from traditional dramas to musicals to even science-fiction? Well, Manchester by the Sea, La La Land, Arrival, Fences, Patriots Day, and Passengers are just a handful of these movies.

Of course, there are certain movies that everyone has individually earmarked as a must see, based either on the strength of the trailer, or due to their personal interests. For example, I’m a Star Wars fan, so there’s no way I’m not seeing Rogue One. However, with so many movies coming out, the majority of us take a wait and see approach for most of these films. If a movie gets universal acclaim and great reviews, or friends recommend that something is a must see, then we will typically raise that movie a few notches up on our priority list.

It’s one thing to wait and see whether you want to see a particular movie. It’s an entirely different animal for employers to wait and see when it comes to compliance. However, with a new administration entering the White House, it is normal to question what changes may come, both when it comes to new regulations, as well as how recently issued regulations may be affected.

One example of this is the U.S. Department of Labor regulations with respect to overtime exemptions, which employers have likely begun preparations to comply with over the past several months. These regulations, which were published in May 2016 and become effective December 1, 2016, drastically increase the minimum salary level an employee must be paid in order to be considered exempt from overtime under the white collar exemptions. I won’t go into any further detail on these new regulations as they’ve been in the news for a long time and employers should not only know about these new rules by now, but likely have begun preparations for compliance months ago, whether it be increasing salaries, converting employees to non-exempt, or taking other appropriate business measures.

However, with a new administration in power, it is natural to ask whether there is any chance these new regulations will be modified, amended, or even repealed or overturned. Currently, there is a lawsuit pending in the Eastern District of Texas (consolidated from two separate lawsuits, one brought by over 50 business entities and organizations and the other brought by 21 states) seeking to enjoin the new overtime rules and ultimately arguing that the USDOL exceeded its authority in establishing certain components of the regulation. The court has indicated it will provide a ruling on the preliminary injunction motion by November 22nd, and if injunctive relief is denied, a hearing on November 28th on the expedited summary judgment motion will be held.

Even if this litigation does not impact the new regulations, as most experts suspect, there is the possibility of legislative or other agency action that could be taken. The various options that exist are too voluminous to list or delve into here, but it is important to be aware that the coming months may shed further light on these possibilities.

The bottom line is that employers have to be prepared to comply effective December 1, 2016. Employers can certainly take a wait and see approach, balancing the cost of compliance with the risk of liability, to see whether any potential changes to the new regulations come into play through the efforts of the new administration or through judicial means. However, employers must carefully balance this risk as there is no guarantee that any relief, whether it be judicial, legislative, or executive, will occur.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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