2018 Workplace Legal Trends

Posted by Jeff Pelliccio on Mar 21, 2018 9:00:00 AM

In ICS insights

A number of laws impact how employees are expected to act at work or to prevent prohibited activities. It's important to understand how these impact your office and what HR resources and recourse there are.

Employees can expect more rights under their state law and less under the federal government in 2018. The federal government will feature a Department of Labor (DOL) that favors employers, a new proposed overtime ruling and a National Labor Relations Board (NLRB) bow to handbook policies. On the state level, retaliation claims will continue, and we can expect more sexual harassment training requirements and possible pay equity legislation, wider marijuana use, and a better paid leave option. It's worth examining the new trends.

Employer-Friendly DOL

With the DOL shift, the department will change its enforcement policies, returning to traditional practices in place before Obama, such as:

  • No liquidated damages unless a case goes to court
  • Abandoned expansion of the employment relationship (the department won't take on franchisees or other non-traditional employment scenarios)
  • Drop the third year of back pay unless an employer blatantly acted with willful intent
  • Open discussions with employers who admit to violations and agree to back-pay settlements

Expected Changes to Overtime Rule

The Fair Labor Standards Act (FLSA) has rules regarding when employees receive overtime pay. Exempt employees are salaried and typically don't get overtime because they aren't eligible for it, presumably due to their higher level of pay. Hourly employees, who usually make less money, receive overtime when they work over 40 hours a week. The overtime rule defines the salary floor below which salaried and hourly employees are eligible for overtime. 

In the fall 2017 DOL regulatory guide, the department stated it would raise the salary for white-collar exemptions, but at a lower level than the Obama administration. Previously, the Society for Human Resource Management (SHRM) stated that the DOL should increase the threshold from $23,660 to $32,000, allowing more salaried people to claim overtime. The halted Obama administration overtime rule doubled the salary threshold but was squashed by the Trump administration.  The Obama change was widely viewed as too aggressive.

Favoring Handbook Policies

The Obama NLRB eliminated many handbook policies, using the 2004 ruling in the Lutheran Heritage Village-Livonia case. That decision clarified the Board’s prior standard over workplace employee handbook policies that violate federally protected rights governed by the National Labor Relations Act (NLRA).  

Under the board's Lutheran Heritage standard, employers were found in violation of the NLRA if their workplace rules failed to forbid prohibited activities, respond appropriately when such activities occurred, and move to restrict them. The standard of judgment was whether a reasonable employee could "reasonably construe" a violation of their NLRA rights.

To replace Lutheran Heritage “reasonably construe” standard, the Board enacted a new test. The new rule states that handbook policies that violate the NLRA will be judged based on the nature and severity of any potential impact and legitimate justifications regarding the rule. This means the board will consider nature and extent of the employer's violation of the NLRA and will consider reasonable justifications the employer had.

Rising Retaliation Claims

The Supreme Court widened legal protections many years ago to combat a rash of sexual harassment class actions and backlashes from those accused or by others within the company. The retaliation claims come from workers accusing employers of discrimination and taking employers to court for unlawful retaliation. Although just a fraction of these charges become lawsuits, the trend may indicate a shift in attitudes against discrimination in the office.

Retaliation claims tripled after 1997, and retaliation is regularly cited in Equal Employment Opportunity Commission filings. Retaliation claim can prevail even if the discrimination or harassment case fails.

Sexual Harassment Training

Following the national outcry over recent revelations of sexual harassment at work in politics and Hollywood, sexual harassment training has received a lot of attention. Employers should review their sexual harassment policies, the way they investigate complaints and their HR training programs.

It's likely that states will beef up their sexual harassment laws as well. For example, Connecticut and California make employers with 50 or more associates give sexual harassment training, typically conducted by HR, to all supervisors. In Maine, businesses with at least 15 employees have to train new workers. Massachusetts, Vermont and Rhode Island encourage HR training for sexual harassment at work without requiring it. 

Pay Equity Laws

Across the US, cities and states have banned asking an interviewee for salary information. This is meant to prevent wage gaps based on gender. Under these laws, a prospective employer can't ask an employee about compensation at previous jobs. Right now, four states, four cities, and Puerto Rico have these laws. This includes Delaware, California, Oregon, Massachusetts, San Francisco, Philadelphia, New York City and Puerto Rico. 

More laws are expected to crop up this year. In fact, Maryland, Idaho, Rhone Island, Virginia, and Texas are reviewing these laws.

Marijuana and Drug Testing Policies

Employers that have offices in more than one state may face lighter local and state regulation regarding marijuana use and drug testing policies. 

A tight labor market and a growing number of cities and states that recognize recreational and medicinal usage will lead to new drug testing practices. Marijuana retailers are happily predicting the demise of the drug test. 

Paid Family Leave

Paid family leave provides salary from an employer, municipality or insurer if you are unable to work for a longer period of time. It covers you if you are recovering from serious health issues or caring for a seriously ill family member. It gives the parents of newborns or new adoptees time to bond as a family.

New Jersey, California and Rhode Island have paid family leave. Meanwhile, New York is expected to adopt similar laws in 2018. Washington state and Washington, D.C., has passed but not yet enacted Paid Family Leave. 

New York and other states that adopt or plan to adopt the Paid Family Leave face big changes. Programs take years to phase in, and employers have to get to know how this changes their wage commitment.

Keeping Up With the Times

If you're having a hard time keeping up with all of the changes, contact us for the staff you need. A lot is going on in the workplace, and it will continue to change so make sure you have the people you need. We'll find you the top professionals to move your workplace to the next level. 

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