In the past year, there have been tremendous workplace changes as court cases, legislation and regulatory actions have called into question the very nature of employee rights and employer obligations. Based on these developments, an employer may need to revisit its workforce policies and practices to minimize employer liability and protect legitimate business interests. Here are the 10 most challenging employment issues facing employers in 2016 and suggestions on how to prepare:
Based on the Supreme Court’s decision in Obergefell v. Hodges in 2015, same-sex couples have a constitutional right to marry and are entitled to the same rights and benefits as opposite-sex married couples nationwide. This is a major shift for employers, eliminating differing state laws. An employer should revisit its policies and practices regarding EEO and discrimination, employee benefits, leave, marital status and tax information to lawfully implement this ruling.
LGBT rights in the workplace are rapidly expanding as new laws on the state and local level prohibit discrimination, harassment and retaliation based on sexual orientation and gender identity and require employers to provide reasonable accommodations. It is critical for an employer to incorporate LGBT rights into its policies and employee handbooks.
As workplaces become more inclusive and diverse, employers must comply with federal, state and local laws providing workers with reasonable accommodations based on pregnancy, religion, disability and sexual orientation, if doing so would not create an undue hardship. As a result, an employer should implement and enforce reasonable accommodation policies and train supervisors and managers to make a good faith effort to provide such accommodations.
Paid Sick Leave
The trend toward providing paid sick leave and permitting workers time off to care for themselves and their families has grown immensely. Paid sick leave is required for federal contractors and an increased number of states and cities passed paid sick leave legislation. Affected employers should comply.
National Labor Relations Act Compliance
The National Labor Relations Board continues to vigorously pursue employers maintaining rules prohibiting employees from engaging in protected concerted activities or collective action to improve wages, hours and working conditions under Section 7 of the National Labor Relations Act. An employer should be particularly cautious and ensure that workplace policies on social media, confidentiality, investigations and communications, among other things, are narrowly tailored and do not infringe upon employee rights.
Rapid advancements in technology have led to new uses for wearable devices at work such as improving communications and increasing safety, employee health and wellness. An employer should implement wearable technology policies and outline proper workplace use to minimize employer risks.
The Department of Labor’s (DOLs) proposed regulations, likely to be finalized in 2016, would greatly increase the number of employees eligible for overtime by raising the salary for exemption to $50,440. Accordingly, an employer should reassess its workforce and determine if changes are needed such as increasing the salary of currently exempt employees, reclassifying employees or reviewing job descriptions.
Recent federal and state worker misclassification cases as well as DOL guidance suggest most independent contractors are actually employees when viewing the economic realities and evaluating all factors. A prudent employer should assess all independent contractor relationships and presume most independent contractors are actually employees.
Both the NLRB in Browning-Ferris Industries of California and the DOL have substantially expanded the joint employment standard and recognized that two entities may be joint employers if they possess, exercise or simply retain the right, directly or indirectly, to control the same worker’s terms and conditions of employment even if control is not actually exercised. As a result, an employer should closely evaluate its business relationships and contracts to assess whether it has the right to control (directly or indirectly) the terms and conditions of a contracted employee, or another company’s employee, and be careful about amount of control exerted.
Telecommuting is on the rise as approximately 30-45 percent of the US workforce now telecommutes or engages in some other form of flexible work arrangements. If an employer allows employees to telecommute, it should maintain a firm policy setting forth criteria for selection of employees who may telecommute, expectations and methods for monitoring productivity.