The year end is fast approaching and it’s time for employers to fulfill the annual ritual of checking and double checking their employment law compliance “to do” lists. With extremely active federal agencies churning out new regulations, guidance, and opinions throughout 2015, those lists may actually be a little longer than usual. To help get your employment law compliance in top shape for 2016, we’ve compiled some items for your “to do” list.
1. Update your employee handbook
The NLRB has aggressively cracked down on employment policies that it believes chill the rights of employees to engage in protected concerted activity relating to terms and conditions of employment. Among the policies that the NLRB has found to violate the NLRA are: overly broad confidentiality rules and social media policies, bans on employee criticism of the employer, and limits on communications with third parties – particularly about wages. The NLRB issued guidance in March 2015 on lawful and unlawful employment policies, which provides insight for reviewing and revising employee handbook policies.
2. Address protected status issues in policies and practices
Court decisions and EEOC activity have changed the scope of LGBT status protections. In June, the Supreme Court ruled that states must allow and recognize same sex marriages. That ruling has implications for employers’ policies and benefits. In addition, the EEOC has made clear through policy statements and court challenges that it will treat sexual orientation, gender identity, and transgender status as protected categories. Employers who do not want to find themselves in the EEOC’s crosshairs should consider how to incorporate this position in their policies and employment practices.
Similarly, as the result of EEOC guidance and another 2015 Supreme Court decision, policies and practices related to pregnancy accommodations require some year-end attention as well. The takeaway from the Supreme Court’s decision is that employers must consider workplace accommodations for pregnant employees if other workers, such as those with workplace injuries, receive accommodations for their conditions. As a result, employers should review light duty and other accommodation policies to ensure that they cover pregnant employees as well. Employers should also consider the EEOC’s guidance on pregnancy accommodation “best practices,” which includes:
Implementing a strong policy against pregnancy discrimination
Responding to complaints promptly and effectively
Evaluating restrictive leave policies
Collaborating to cover job duties during anticipated absences
Communicating that reasonable accommodation procedures are available for pregnancy-related impairments
3. Prepare for new FLSA White Collar regulations
In July 2015, the Department of Labor (DOL) published proposed rules that may more than double the salary requirement to qualify for the executive, administrative, and professional overtime exemptions. The final rules are expected to become effective sometime in 2016.
Because of the increased salary level under the new rule, many employers will find themselves having to address the FLSA classification status of currently exempt employees. Employers may need to re-classify employees as non-exempt and pay overtime for work over 40 hours in a work week or raise salary levels to meet the new requirement, which is currently expected to be $50,440 per year. Take time now to consider the impact the proposed rule will have on your business and prepare accordingly. Initial steps should include identifying potentially affected employees, reviewing job descriptions, and assessing typical hours of work.
4. Review independent contractor status issues
Also in July 2015, the DOL issued guidance on the classification- and misclassification-of workers as independent contractors. The DOL’s guidance emphasizes the broad scope of employment under the FLSA and concludes that most workers are employees covered by the FLSA. The DOL made clear that it intends to aggressively challenge worker misclassification through investigation and enforcement efforts. This means that employers can expect tough scrutiny of their independent contractor relationships. This also means that your “to do” list should include review of relationships with workers engaged as independent contractors to ensure that those classifications are appropriate.
5. Tackle data security protection
Yes, it’s an employment compliance issue! Although outside hackers get most of the media attention, employees are the most frequent cause of data breaches. A key aspect of an effective data security plan is ensuring that up-to-date and effective policies and procedures are in place to address the risks and legal obligations involved in handling data covered by the many overlapping breach notification laws and rules.
6. Get up-to-date on state law changes
From changes in the minimum wage to ban-the-box laws to paid sick leave, states have been extremely busy in 2015 enacting new employment laws. While the compliance focus is often on federal employment laws, many innovative changes are happening on the state level. And, those “innovative” changes, frequently come with fines and penalties for non-compliance. It’s particularly important for multi-state employers to understand the different laws that apply to their operations.
7. Schedule training
Get it on the calendar now! The agencies’ guidance, rules, and policies over just the last year have clearly impacted employment practices and policies. Supervisors and managers are on the front lines of dealing with employees and implementing your policies. They can’t do their jobs effectively without knowing and understanding these employment law compliance issues.
Tackling your “to do” list now will ensure that your employment law compliance is ready for 2016… and that you’ll still have plenty of time for that holiday shopping list.