Are you a business owner concerned about the labor and employment law changes coming your way in 2018? In times of uncertainty, it’s best to prepare for any obstacle the world might toss at you. But how do you get ready for new legislation you’re not familiar with in the first place?
We have been watching the Department of Labor (DOL) and its interpretation of the Fair Labor Standards Act like a hawk, and you can see what updates the DOL has made recently here. We’ve also been tracking efforts in several states to update employment laws (i.e., scheduling ordinances, paid time off, and discrimination policies). It’s clear that change is happening and will continue in 2018.
At TSheets, we are committed to helping our customers increase their awareness of trustworthy resources that can help them keep track of pending changes and ensure they’re complying with any new mandates that could affect their businesses.
What’s in the news?
To get a better grip on the ever-fluctuating landscape of employment policies and trends for 2018, we reached out to our friend and employment law attorney Maria Hart, of Parsons Behle & Latimer, to get the latest on what’s expected this year.
DOL overtime laws
Under the Obama administration, the Labor Department announced that the former overtime salary threshold, previously $23,000 annually, would rise to more than $47,000, and would be updated every three years to reflect wage growth. That administration’s rule change would have meant 4 million more workers would be eligible for overtime.
These changes were set to go into effect in December 2016 but were ultimately put on hold by a federal judge and then by Trump’s new administration. Last year, we started getting some indication of the DOL’s trajectory on overtime and the FLSA.
“[The DOL] requested commentary and questions about the issue, in a peremptory fashion, and we’re tracking whether a new rule will be issued at some point this year,” said Hart. This would trigger, initially, a comment period, with the eventual implementation of any proposed rule. If the DOL proposes changes to the existing rule, she expects the overtime threshold for exempt employees would be much lower than the original $47,000 salary level proposed in 2016.
“The DOL will probably release a revised rule that’s going to look somewhat different,” Hart continued. “We’re expecting it will be lower. It hasn’t been changed in 13 years, which is what motivated the revisions under the prior DOL. However, the increased salary threshold was just so substantial, and I know many businesses are breathing a collective sigh of relief.”
Predictive scheduling and paid leave
Hart also talked about changes rolling out in states and cities across the nation addressing what is known as “predictive scheduling.” Under these new predictive scheduling ordinances, employers are required to provide more notice to employees regarding upcoming shift schedules and any changes, particularly last-minute changes, to those schedules. More states and cities are also proposing new legislation addressing mandatory paid leave.
Activity at the National Labor Relations Board (NLRB)
In addition, attorneys are keeping an eye on the National Labor Relations Board (NLRB). The NLRB greatly expanded its influence under the guidance of Obama-appointed board members with a series of employee-centric decisions.
On December 14, 2017, the now Republican-led NLRB issued a number of new decisions unwinding Obama-era precedence. By way of example, the prior board issued decisions limiting employer handbook policies that might be “reasonably construed” by employees to infringe on their right to engage in protected activity, also known as Section 7 rights under the National Labor Relations Act.
Workplace civility rules, confidentiality policies, and social media policies were deemed unlawful under the “reasonably construe” standard, even if an employer had a legitimate reason for the rule. According to the new decisions, such as the Boeing decision, employers may once again have policies restricting certain activities so long as the rule is neutral, has a legitimate purpose, and does not interfere with National Labor Relations Act (NLRA) rights.
#MeToo in the workplace
In 2016, employees filed 91,503 charges with the Equal Employment Opportunity Commission (EEOC). Of these charges, 12,860 involved sex-based harassment and 6,758 involved sexual harassment alone. With the #MeToo movement and rise in sexual harassment and assault reporting and/or awareness in professional spheres around the country, Hart says it’s also very important to have an HR team that is prepared to evaluate your HR policies.
The place to start is with handbook policies. Does your company have a policy addressing equal employment opportunity, anti-harassment and discrimination, complaint procedures, and anti-retaliation? Are these policies up to date?
The second issue to address is training your employees. If your employees aren’t sure who to talk to, remind them. And create a very direct line of communication to HR personnel of different sexual orientations so that everyone feels comfortable bringing up their issues.
“The time is now for employers to offer sensitivity training, review policies, and provide specialized training for supervisors, managers, and HR staff regarding harassment and discrimination. Employers need to make sure they’re not endorsing any sort of negative work environment,” said Hart. “It’s a good time, in light of discussions that are happening at a local and national level, to say to employees, ‘We value you, we value what you do, and we want this to be good work environment and a welcoming and positive place to work.’”
What can you do now to ensure compliance with changing laws?
- Overall, it’s about staying informed and having support. “You’ll need to have the right people to give you information should a change come down the pipe,” said Hart.
- If you haven’t already, create a strong relationship either with an employment attorney or make sure your HR manager is following these issues closely. Subscribe to updates from the DOL, and follow employment blogs and stories for updates.
- If you haven’t had an initial audit of your company handbook in the past year, it’s a good idea to do your research and conduct an internal self-assessment to see where you stand.
It’s time to catch up on the few changes that have already begun, and at TSheets, we’re following legislation at the state and federal level closely. Having a time tracker like TSheets can be one of your best lines of defense when it comes to avoiding FLSA lawsuits, managing compliance with predictive scheduling laws, and accounting for time off as more states and cities implement regulations. Keep your employee’s time accurate and secure for your reference in the coming months.
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Maria Hart is s a member of the Litigation, Trials, and Appeals practice group at Parsons Behle & Latimer. Ms. Hart’s practice focuses generally on commercial litigation and business law. She has experience representing businesses and individuals in both Idaho and Montana.