Federal Court Strikes Down 2024 DOL Salary Basis Rule

On November 15, 2024, the District Court for the Eastern District of Texas invalidated the Department of Labor’s (DOL) 2024 rule increasing salary thresholds for white-collar and highly compensated employee exemptions under the Fair Labor Standards Act (FLSA). This decision reverts the salary basis for these exemptions to pre-July 2024 levels of $35,766 annually ($684 per week).

The now-overturned DOL rule, issued in April 2024, had raised the white-collar exemption salary to $43,888 per year ($844 per week) starting July 1, 2024, with a second phase set to increase it to $58,656 annually ($1,128 per week) on January 1, 2025. The rule also increased the highly compensated employee exemption threshold to $132,964 annually in 2024 and $151,164 in 2025, alongside a provision for automatic salary updates every three years.

The court ruled that the DOL exceeded its authority under the FLSA, which emphasizes employees' duties rather than salary in determining exemption status. By setting high salary thresholds, the court argued that the DOL effectively replaced the duties test with a salary-only standard, contradicting the statute. The court also deemed the automatic increases invalid under regulatory procedures.

Employers nationwide can now revert to the previous salary basis but should note that certain states and localities, including California, New York, Colorado, and Washington, enforce higher salary thresholds. While the DOL could appeal, many expect the current administration to let the decision stand.

Employers with questions on compliance should consult their city attorney, or you may contact OMAG General Counsel Monica Coleman, at mcoleman@omag.org or (405) 657-1422.

First Responders, PTSD, and Mental Health Resources

First responders, including police officers, firefighters, paramedics, and emergency medical personnel, play a crucial role in our society. They rush to the scenes of accidents, fires, medical emergencies, and disasters to protect and save lives. However, the very nature of their work exposes them to traumatic and stressful situations daily, often leading to mental health challenges, including Post-Traumatic Stress Disorder (PTSD). In this article, we will explore the impact of PTSD on first responders and highlight the importance of mental health resources in providing them with the support they need to cope with the demands of their challenging profession.

The Silent Struggle: PTSD Among First Responders

First responders are often regarded as heroes, and rightly so, for their selfless dedication to public safety. Yet, behind the scenes, many of them silently struggle with the psychological toll of their work. PTSD is a mental health condition that can develop in individuals who have experienced or witnessed traumatic events. For first responders, these events can include everything from responding to violent crimes, witnessing fatal accidents, or battling life-threatening fires.

The prevalence of PTSD among first responders is alarmingly high. According to research conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA), approximately 30% of first responders develop behavioral health conditions, including PTSD and depression. These conditions can significantly impact their personal lives, job performance, and overall well-being.

The Stigma Surrounding Mental Health

Despite the increasing awareness of mental health issues, there remains a significant stigma surrounding mental health challenges in the first responder community. Many first responders fear that acknowledging their mental health struggles could jeopardize their careers or damage their reputations. As a result, they often suffer in silence, avoiding seeking help when they need it the most.

However, the consequences of untreated PTSD and mental health issues can be severe. It can lead to self-destructive behaviors, substance abuse, strained relationships, and in the worst cases, even suicide. Recognizing the importance of addressing these issues is essential for the well-being of first responders and the communities they serve.

Mental Health Resources for First Responders

Fortunately, there is a growing recognition of the need to provide first responders with the mental health support they deserve. Many organizations, both public and private, have taken steps to develop specialized resources and programs tailored to the unique needs of first responders.

1.     Peer Support Programs: These programs train experienced first responders to provide emotional support and guidance to their colleagues.

2.     Counseling and Therapy Services: Access to confidential counseling and therapy services is crucial for first responders.

3.     Employee Assistance Programs (EAPs): EAPs offer a wide range of services, including counseling, crisis intervention, and referrals to specialized mental health providers. They provide a safe and confidential avenue for seeking help.

4.     Training and Education: Mental health awareness training is becoming more common in first responder organizations. Training programs aim to educate personnel about the signs and symptoms of mental health conditions and how to support themselves and their colleagues.

5.     Legislation and Policy Changes: Some states and regions have implemented legislation to ensure that first responders receive adequate mental health coverage and support.

Conclusion

First responders are the backbone of our communities, putting their lives on the line every day to protect and save others. It is our collective responsibility to ensure they receive the mental health support they need to cope with the challenges of their profession. PTSD and other mental health conditions should not be viewed as signs of weakness but as natural responses to the extraordinary stressors they face. By offering resources, reducing stigma, and fostering a culture of mental health awareness, we can support our first responders in their efforts to protect and serve, ultimately saving those who save us.

For information about resources available to first responders, contact Monica Coleman at (405) 657-1422 or mcoleman@omag.org.Top of Form 

PUMP for Nursing Mother's Act

The PUMP for Nursing Mothers Act was passed in December 2022; it becomes effective April 28, 2023.  Under the PUMP Act, employers must provide all nursing mothers 1) a reasonable break time to express breast milk; and 2) a private location, other than a restroom, that is shielded from view and free from intrusion. Nursing mothers are covered by the PUMP Act for up to one year after childbirth. Employers with fewer than 50 employees are excused from coverage only if compliance would impose an undue hardship on the employer’s business.

The PUMP Act also contains a mandatory reporting provision that requires an employee to notify her employer if she believes the employer is non-compliant with the PUMP Act. The employer then has 10 days from the date of notification to remedy the situation. An employer waives the 10-day notification period if the employee is terminated for making the request or opposing the employer’s refusal to gain compliance.

Random Drug Testing & Medical Marijuana Act

The Oklahoma Standards for Workplace Drug and Alcohol Testing Act (OSWDATA) contains the requirements for employer drug and alcohol testing in Oklahoma. To conduct drug and alcohol testing, an employer must have a drug and alcohol testing policy. OMAG has a sample policy on the Human Resources page at www.omag.org/human-resources.

1. There are six different kinds of testing in the Act:

2. Pre-employment Testing;

3. For Cause or Reasonable Suspicion Testing;

4. Post-accident Testing;

5. Random Testing;

6. Periodic Scheduled Testing; and

7. Post-rehabilitation Testing.

The focus of this article is on the random testing category and how that coordinates with the Oklahoma Medical Marijuana and Patient Protection Act (OMMPPA). The OSWDATA has a list of safety-sensitive functions that will allow an employer to randomly test its employees whose jobs require performance of any of the listed functions. The OMMPPA also has a list of safety-sensitive categories; the impact of the listing is that those with medical marijuana cards will not be excused from requirements of testing if they are working in a safety-sensitive classification.  

The definition of safety sensitive is based upon the specific job duties assigned to a position and these should be outlined in the job description. The focus should be on the potential threat posed by an employee who is under the influence in the event they make a mistake or fail to perform their duties because of the influence of the drug/alcohol. The Supreme Court has indicated that a safety-sensitive position is one in which the duties involve "such a great risk of injury to others that even a momentary lapse of attention can have disastrous consequences." The fact that an employee drives a city vehicle is not in and of itself enough to classify the position as safety-sensitive. Is driving regularly a primary function of the employee's duties? If so, then that may get the classification closer to a safety-sensitive classification. If driving is an occasional function and driving is not part of the regular, primary duties, then the classification would likely not be designated as safety-sensitive.  Some good examples of safety-sensitive classifications would be sanitation truck drivers, bus drivers, and ambulance drivers. The fact that a position is assigned to the Police Department is also not enough to classify the position as safety-sensitive.

The language that should be included in the safety-sensitive classification’s job description can be found in the OMAG sample policy.

If your city/town has classifications that perform any of the listed duties, random testing should be considered. Remember, a policy must be in place before any testing can be performed. Contact OMAG for assistance in putting a drug and alcohol testing program into effect.

Workplace Posters

Every workplace should have a location where workplace posters are posted. This location should be a conspicuous place, i.e., break room, and/or other areas that are accessible to all employees, at each job site in every department/division. If you do not have all these posters, you may print copies at:

https://oklahoma.gov/omes/services/employee-benefits/required-workplace-posters.html

The posters are as follows:

1. Employee Polygraph Protection Act Notice

2. E-Verify Notice

3. FMLA Employee Rights and Responsibilities

4. Equal Employment Opportunity is the Law Notice

5. Employee Rights Under the FLSA Notice

6. OSHA Notice

7. Oklahoma Discrimination Notice

8. Notice to Workers and Registration Certificate

9. Your Rights Under the Oklahoma Minimum Wage Act

10. Form 1A – Oklahoma Workers’ Compensation Notice and Instruction to Employers and Employees (English and Spanish)

11. Oklahoma Public Employee Occupational Safety and Health Notice

12. Department of Justice Right to Work Notice

13. Your Rights Under USERRA Notice

Contact OMAG if your city/town requires assistance in determining what workplace posters are needed, or if you need an audit of your workplace postings.

ADA Interactive Process

Who bears the responsibility between the employee and the employer to request an accommodation under the ADA?

Employee or Employer?

Generally, the individual with the disability is responsible to inform the employer that an accommodation is needed and make a request for an accommodation. However, if an employer is aware that an employee has a disability or knows, or should know, that an employee is experiencing problems because of the disability, the employer should initiate the reasonable accommodation interactive process. The interactive process is a way of communication between the employee and the employer to ensure that the employer can provide reasonable accommodations to the employee with the disability. The interactive process requires employers to:

• analyze job functions to establish the essential and nonessential job tasks,

• identify the barriers to job performance by consulting with the employee to learn the employee’s precise limitations, and

• explore the types of accommodations that would be most effective.

Employers can demonstrate a good faith attempt to accommodate by meeting with the employee, requesting information about the limitations, considering the employee’s requests, and discussing alternatives if a request is burdensome. Because the interactive process imposes mutual obligations on employers and employees, an employer cannot be liable for failure to accommodate if a breakdown in that process is attributable to the employee.

Considering Ross v. City of Owasso

Release or Not Release – That is the Question Considering Ross v. City of Owasso and its Effect on the Confidentiality of Personnel Investigations Under the Open Records Act

November 25, 2020 | Monica Coleman

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What’s the point of the Open Records Act?  The purpose of the ORA is to ensure and facilitate the public’s right of access to, and review of, government records so they may efficiently and intelligently exercise their inherent political power.  51 O.S. §24(A)(2).  The burden is on the public agency seeking to deny access to show a record should not be made available. 

Unless a record falls within a statutorily prescribed exemption in the ORA, the record must be made available for public inspection.  The public body urging an exemption has the burden to establish the applicability of such exemption. 

Under the ORA, there is an exemption that “A public body may keep personnel records confidential . . . [w]hich relate to internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation.”  51 O.S. §24A.7(A)(1).  Section 24A.7(A)(2) provides an exemption to record production “where disclosure would constitute a clearly unwarranted invasion of personal privacy.”  Finally, Section 24A.7(B) provides that “all personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying.”

Note the permissive language in Section 24A.7(A)(1) where “may” is used.  “May” is a permissive word indicating discretion rather than mandate.  Therefore, under Section 24A.7(A)(1), a public body has the discretion to decide whether or not to keep confidential any records that relate to internal personnel investigations as delineated in the statute.  Generally, it is the “public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.”  51 O.S. §24A.2.

In Ross v. City of Owasso, the Oklahoma Court of Civil Appeals was faced with answering the question concerning whether the City of Owasso abused its discretion when it refused to release a copy of an investigative report (the Fortney Report) concerning Owasso’s City Manager and potentially criminal acts and violations of City policy he may have committed.  The City argued that if the behavior of a public official is not criminal, but, merely “unethical/questionable,” this creates a public policy interest in the City keeping any investigation of the behavior secret, and indicates the lack of a public “need to know” under the Act. 

While it’s a fine distinction, it is a distinction nonetheless, that the focus of the Court wasn’t really the reported conduct of the City Manager, so much as it was the potentially inappropriate expenditure of public funds when the governing body paid him a sizable severance when they could have terminated him for cause and paid him nothing.  Ross’s request was not intended for general investigative or journalism purposes.  Ross ¶20.  The Court determined that Ross’s request involves a central matter of good governance – the allegation that substantial public funds were improperly expended paying a severance package to the City Manager because the City Manager’s contract explicitly required the forfeiture of any right to severance pay if his employment was severed for cause.  Ross ¶20.  The report would have provided answers regarding the City Council’s ability to terminate the City Manager for cause as a result of the investigation.

The Court applied a “balancing test and determined that the balance in this case clearly favored disclosure.”  Ross ¶21.  “The records request involved a high-profile employee in an official position, not routine day-to-day personnel employment matters.  It involves specific questions of why the City Manager, who was accused of misconduct, was granted a substantial severance package, paid for by the taxpayers of Owasso, instead of being fired.  In short, it is a “core” Open Records matter going directly to questions of the legitimacy of the Mayor and City Council’s good governance and use of funds, and the citizen’s inherent political power to inquire into these matters.” Ross ¶21

“Because the City identified no valid privacy, state, or public interests in withholding the Report, the Court found it should be disclosed under the Open Records Act.”  Ross ¶21.

In Ross, the Court held that the City had failed to meet its burden to show that it had a valid basis under the Open Records Act to show why the records should not be made available.  Ross ¶22.  So, an important takeaway from Ross is that the public body must give a reason for not producing the requested record.  This means that the public body must have an official ruling on any record request where records are not going to be released.  If the request is made in a Council-Manager form of government where the City Manager has the authority over personnel matters, then it seems more prudent for the City Manager to make that official reason for refusing to produce records that are deemed confidential under the Act.  This will avoid the governing body from being placed in a position of violating the law by encroaching into personnel matters that are not their area to be in.

In sum, what was Ross really about?  It was about the public’s right to know how its governing body was spending the public’s money.  It had little, if anything, to do with the fact that the City Manager was terminated and more to do with the reasons underlying his performance and the governing body’s interest in removing him.  Public monies were spent when there was a contractual mechanism for paying him nothing.  That was the central point of focus for the court and one that tipped the scales in favor of release of the records.

So, what are the options available to public bodies considering the ruling in Ross?

• The public body could just give up the records.  That ends the matter and favors the public’s right to information. 

• Sometimes, release could open other issues such as Constitutional rights violations.  Under those situations, maybe it is best to fight to keep the records confidential.  The City Attorney will have to defend in these situations in court.  This means it is likely the court will want to review the records and decide for itself whether the records should be released.  This means that the Court will conduct an in-camera review and privately determine whether to release the records.

• If the Court determines the records should be released, or perhaps the parties decide to release cooperatively, a protective order can be put in place to protect the records from being used beyond the intended purpose of the request.

• Cities with collective bargaining or other appeal/grievance procedure, may have a defense that the discipline is not final until it has run through the grievance and/or appeal procedures.

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DISCLAIMER:  OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG offers this guidance to help your municipality make informed decisions. You should always consult with your City Attorney before taking any actions based on this guidance.  If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).

New year, new you, new benefit - Employee Assistance Program (EAP)

Starting February 1, 2020, the Oklahoma Municipal Assurance Group (OMAG), began offering an Employee Assistance Program (EAP) to all Plan Participants and their employees. The EAP, available at NO COST to Plan Participants, their employees, and their employees’ family members, can help them:

•   Be more present and productive at work

•   Get help when they don’t feel like themselves

•   Grow their personal and career skills

•   Receive care after a traumatic event or diagnosis

•   Make healthy lifestyle choices

•   Improve and inspire their daily lives

Available through OMAG, the EAP offers a wide variety of resources to help people best manage their lives. This FREE benefit can help with almost anything to make life easier:

• Counseling (in-person, online, telephonic, in-the-moment)

• Personal assistance for daily tasks

• Life coaching

• Financial & legal consultation

• Help to improve relationships

• Referrals to almost anything

Visit ndbh.com using the code OMAG or call 800-624-5544 to learn more about how EAP can help you stress less, balance work and life, improve relationships, reduce debt, live healthier (+ so much more!) today.

Questions? Contact Monica Coleman at 405-657-1422.

HERE'S TO A BETTER YOU!

Municipal Employers and the Coronavirus - Be Flexible!

With Spring and Summer approaching, many of your employees will be travelling outside the State for vacation and then returning to work and potentially spreading the virus at work. As explained in Municipal Employers and the Coronavirus – Just the Facts! there is much more to learn about the transmissibility, severity, and other features associated with the Coronavirus and investigations are ongoing.

As a public employer there are many practical and legal issues to consider when deciding whether an employee can return to work after out of state travel.  On one hand, public employers must manage and maintain a health, safe and sanitary work environment for all employees.  On the other hand, employees have a right to use their vested benefits, like vacation leave, on their own terms without interference from their employer.

What is the best way for a municipality to weigh the rights of the public employer and the public employee?

• The key is communication and flexibility. 

Although the municipality cannot dictate how employees use their leave or where employees travel outside of work, municipalities can proactively caution employees about the consequences of travelling out of State. This can be done through a memo or policy from the City Manager or governing body which would set (1) explain to employees that the municipality is taking this seriously and the steps being taken by the municipality to reduce the exposure to employees and (2) the potential consequences of employees travelling to travelling while on personal leave. (See sample memo at end document)

The City should use caution when requesting medical information from employees to avoid any issues with the Americans with Disabilities Act. Before questioning an employee about potential exposure or medical conditions, the municipality must have enough facts to determine if there is a reasonable concern that the employee poses a threat to themselves or co-workers. 

• Have you traveled out of the State or Country?

• Have you traveled to a Country with a Level 2 or 3 advisory as defined by the CDC?

• Do you have any other reason to believe that you have been exposed to the COVID-19?

• If you have been potentially exposed, do you have flu like symptoms?

If an employee can answer any of these questions in the affirmative then the municipality should engage in a process with the employee to determine whether a self-quarantine should be implemented and whether the employee should use accrued leave to cover the absence from work or a possible remote-working accommodation. 

Given the uncertainty of the "coronavirus disease 2019" (COVID-19), and the fact that the seasonal influenza (flu) virus is also widespread, the City is taking proactive steps to address a number of business concerns. First and foremost, we want to maintain a safe workplace and encourage and/or adopt practices protecting the health of employees, or others. We also want to ensure the continuity of business operations in the event of a pandemic.

We ask all employees to cooperate in taking steps to reduce the transmission of communicable diseases in the workplace. Employees are reminded of the following:

• §  Stay home when you are sick.

• §  Wash your hands frequently with warm, soapy water for at least 20 seconds.

• §  Cover your mouth with tissues whenever you sneeze, and discard used tissues in the trash.

• §  Avoid people who are sick with respiratory symptoms.

• §  Clean frequently touched surfaces.

The City will provide alcohol-based hand sanitizers throughout the workplace and in common areas. Cleaning sprays and wipes will also be provided to clean and disinfect frequently touched objects and surfaces such as telephones and keyboards.

Employees are encouraged to use telephone and video conferencing instead of face-to-face meetings as much as possible during this outbreak. IT support services are available to employees who need assistance with this technology.

It is critical that employees do not report to work while they are experiencing respiratory symptoms such as fever, cough, shortness of breath, sore throat, runny or stuffy nose, body aches, headache, chills or fatigue. Employees who report to work ill will be sent home in accordance with these health guidelines. We provide paid sick time and other benefits to compensate employees who are unable to work due to illness.

The City cannot prevent employees from travelling to affected areas for personal reasons, but the City may request that the employee self-quarantine for a prolonged period before returning to the workplace.  Employees will be able to use accrued sick leave and/or vacation leave.  The City will also consider on a case-by-case basis, requests from employees to work from home.  While not all positions are conducive to telework, those positions with primary job duties that can be effectively performed remotely will be given consideration.

DISCLAIMER:  OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures until some of the issues can be decided by the Legislature or the Courts. You should always consult with your City Attorney before taking any actions based on this guidance.  If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).                                

OMHRP Tip of the Month - August 2019

Hiring the best qualified candidate:

1. Prepare all questions in advance and ensure they are job-related
   Establish benchmarks for desired responses

2. Take notes of each candidate’s responses

3. Consider having the candidates “audition” for the job by utilizing practical exercises that simulate the job they are seeking

4. Listen to the candidate talk about an issue that is important to them personally

5. Have a team member take them on an interview of the office and get the team member’s feedback about the interaction

6. Check references!!!