Legal protections for employees are likely to expand at the state level in 2018 but shrink under federal law, employment law attorneys say. At the federal level, expect a more employer-friendly Department of Labor (DOL), a new proposed overtime rule and greater deference by the National Labor Relations Board (NLRB) to employee handbook policies. But retaliation claims will continue to be prevalent. At the state level, more sexual harassment training laws and pay equity legislation may be passed, as well as laws legalizing marijuana use and requiring paid leave.
More Employer-Friendly DOL
The Department of Labor is likely to shift how it approaches enforcement, most likely returning to more traditional, pre-Obama administration practices.
Employers should expect the DOL to:
- Not seek liquidated damages unless a matter goes to court.
- Abandon exotic theories of the employment relationship, such as going after franchisees or other relationships not normally viewed as employment.
- Not seek a third year of back pay for willful violations unless an employer clearly has acted with bad intent.
- Listen to employers willing to confess a violation as part of a supervised back-pay settlement.
Proposed Overtime Rule
The Department of Labor predicted in its fall regulatory guidance, published Dec. 14, 2017, that it will issue a proposed overtime rule by October 2018. The DOL is expected to raise the salary threshold for white-collar exemptions but not as high as the Obama administration had.
The Obama administration overtime rule, a regulation that has been halted while the Trump administration develops its new overtime rule, would have doubled the salary threshold.
Greater Deference to Handbook Policies
Changes are afoot at the NLRB as well. The Obama NLRB struck down a number of handbook policies, applying Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Under Lutheran, the board set out a test for when the rule of any employer—unionized or not—will violate the National Labor Relations Act (NLRA). This rule included examination of whether employees would reasonably construe the rule’s language to prohibit protected, concerted activity. The rule has been applied to strike down social media and confidentiality policies under the Obama board.
But Lutheran was overturned Dec. 14, after Republicans assumed control of the board. Now that it has been overruled, employers should expect to receive more latitude with policies that are neutral on their face, such as confidentiality policies.
Continued High Number of Retaliation Claims
Retaliation claims are likely to remain prevalent. The number of retaliation claims has nearly tripled since 1997, and retaliation now is the most frequently filed charge with the Equal Employment Opportunity Commission. Even if a discrimination or harassment claim fails, a retaliation claim may prevail. All that is needed to win such a claim is to show protected activity, an adverse employment action and a causal connection between the two.
Sexual Harassment Training
The end of 2017 marks an unprecedented recognition of sexual harassment in the workplace.
As a result, employers should take a look at their sexual harassment policies, complaint and investigation procedures, and training programs. The impact from what’s happening in Hollywood and in politics will trickle down, and we may see new harassment laws and more training mandates at the state level.
Currently, California and Connecticut require businesses with 50 or more employees to provide sexual harassment training to supervisors. Businesses with 15 or more employees in Maine must provide training to all workers at the start of their employment. In other states, such as Massachusetts, Rhode Island and Vermont, employers are encouraged—but not required—to provide training.
We expect more state and local governments to adopt mandatory training programs that will require in-person, annual training for all employees.
Pay Equity Laws
Many states and cities have banned salary history questions during the interview process. Aimed at combating wage disparities based on gender, these laws generally prohibit employers from asking job applicants about their prior or current compensation and relying on salary history to set pay levels.
California, Delaware, Massachusetts, Oregon, New York City, Philadelphia, Puerto Rico and San Francisco have passed such laws (though Philadelphia’s ordinance has been put on hold pending the outcome of a lawsuit challenging the ban).
Some of those laws took effect in 2017 and others will take effect in 2018. More states—such as Idaho, Maryland, New York, Rhode Island, Texas and Virginia—are considering similar legislation.
Marijuana Laws and Drug Testing Policies
Multistate employers will likely face more state and local regulatory efforts in 2018 regarding marijuana use.
Furthermore, a tight labor market combined with the increasing number of jurisdictions that recognize medical or recreational marijuana are causing employers to rethink drug testing practices that have been in place for decades.
In 2018, we are likely to see a continued expansion of employee-friendly rulings in this area.
Paid Family Leave
California, New Jersey and Rhode Island currently offer paid family leave, and New York will join the list in 2018. Washington state and Washington, D.C., have also passed such laws, but they won’t take effect until later.
Paid family leave in New York will be a big change for employers. The program will be phased in over the next few years. Employers need to understand the calculations and other mechanisms of the law and how new requirements compare to current employer offerings.
Although only a handful of states offer paid family leave, others are expected to follow.
Joe Boone, MBA, SPHR, is the founder and president of Strategic HR Solutions, LLC, a human resources consulting firm that provides small businesses with a wide range of virtual and onsite HR solutions to meet their immediate and long-term needs. From ensuring legal compliance to writing customized employee handbooks to conducting sexual harassment training, businesses depend on our expertise and cost-effective human resources services to help them thrive.
Visit our website at www.strategic-hrsolutions.com.