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10 HR Compliance Trends to Watch in 2018 (Part 2)

Last week we introduced five compliance trends impacting employers’ hiring, scheduling, and anti-harassment practices. Here are the remaining five compliance trends to watch in 2018.

#6: Paid Family and Paid Sick Leave Laws

In recent years, paid family leave (PFL) and paid sick leave (PSL) laws have been enacted by a number of jurisdictions.

PFL:

Paid family leave generally provides partial wage-replacement benefits to workers for covered absences. Coverage varies among jurisdictions but generally includes bonding with a newborn, or a newly placed adopted or foster child, or caring for a family member with a serious health condition. The jurisdictions with a paid family leave program include:

  • California
  • San Francisco
  • New Jersey
  • New York
  • Rhode Island (referred to as Temporary Caregiver Insurance)
  • Washington (benefits begin January 2020)
  • District of Columbia (benefits begin July 2020)

PSL:

Eight states, the District of Columbia, and more than 30 local jurisdictions require employers to provide paid sick leave to eligible employees. The states with paid sick leave requirements include:

  • Arizona
  • California
  • Connecticut (employers with more than 50 employees must provide paid sick leave to “service employees”)
  • Massachusetts
  • Oregon
  • Rhode Island (effective July 1, 2018)
  • Vermont
  • Washington

There have also been various proposals to amend federal law to require or encourage employers to provide paid family leave and/or paid sick leave, but these proposals are still in the early stages of the legislative process and their fate is uncertain.

#7: Pregnancy Accommodations

Many states have enacted laws requiring employers to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions. In 2017, Connecticut, Nevada, and Vermont became the latest states to enact such requirements. A reasonable accommodation is generally a change or modification made to the structure or manner of an employee’s position allowing them to perform the essential functions of the role, absent an undue hardship to the business.

If you are subject to a pregnancy accommodation law, develop policies and procedures on how to respond to accommodation requests. Keep in mind, even if your state doesn’t have specific pregnancy accommodation rules, you may still be required to provide employees with impairments related to pregnancy with a reasonable accommodation under the Americans with Disabilities Act.

#8: New Proposed Overtime Rule Possible

In May 2016, the Department of Labor (DOL) released a Final Rule that would have increased the minimum salary required to be exempt from overtime under the Fair Labor Standards Act (FLSA). However, a federal judge blocked the DOL from implementing the Rule, concluding that the DOL exceeded its authority by raising the minimum salary so significantly that it became the determinative test for exempt status, diminishing the importance of the duties test. The DOL filed an appeal of the federal judge’s decision, but that appeal is being held while the DOL undertakes new rulemaking.

On July 26, 2017, the DOL published a Request for Information (RFI) to initiate the rulemaking process, seeking comments from the public about the overtime exemptions. The comment period for the RFI ended in late September 2017, and the DOL is now considering the feedback so it can draft new proposed rules (a process that typically takes several months). The proposed rule would likely increase the minimum salary required for exemption but not as high as the blocked 2016 Final Rule. Meanwhile, some states have proposed legislation that would change the state rules on exemption from overtime. Watch for developments in 2018.

#9: Minimum Wages

Eighteen states and many local jurisdictions have new minimum wages that became effective on December 31, 2017 or January 1, 2018. Some additional jurisdictions will see increases at other times throughout 2018. In some states, an increase in the minimum wage can also affect minimum salary requirements for exempt employees. For example, both California and Alaska require employers to pay a salary of at least twice the minimum wage to bona fide administrative, professional, and executive employees. Additionally, most jurisdictions require employers to post a minimum wage notice in the workplace. If you’re required to post a notice, make sure it’s the most up-to-date version.

#10: Re-Examination of NLRB Positions

Under Section 7 of the federal National Labor Relations Act (NLRA), employees have the right to act together, with or without a union, to improve wages and working conditions, and to discuss wages, benefits, and other terms and conditions of employment.

During the Obama administration, the National Labor Relations Board (NLRB) and the NLRB’s General Counsel defined Section 7 protections broadly to not only preclude employer policies that directly restricted Section 7 rights but also preclude policies that could be construed to limit these rights. Many common employer policies were under scrutiny, including those with rules prohibiting “disrespectful” conduct, requiring confidentiality of workplace investigations, and restricting photos/videos in the workplace. In late December 2017, the NLRB set forth a new test to apply when it hears cases on whether such policies are lawful. Separately, the new General Counsel of the NLRB issued a memorandum stating that he will reexamine many of the positions of the previous General Counsel. Look for developments in 2018 and beyond.

Final thoughts:

As laws and regulations continue to change, be sure to regularly review workplace forms, policies, practices, and training to ensure compliance with current federal, state, and local requirements. Keep in mind, elections held in late 2017 and 2018 could affect the quantity and types of legislation we see going forward.

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