In the past year, a host of court cases, legislation and regulatory actions have questioned the very nature of who is considered an employer and who is considered an employee along with what rights and benefits employees should be entitled to in the workplace.
Workforce policies and practices will need to be revisited to minimize employer liability and protect legitimate business interests. As a result, here are the 10 most challenging employment issues facing employers in 2016 and suggestions for how to prepare:
In Obergefell v. Hodges, the US Supreme Court issued a landmark decision and ruled that same-sex couples have a constitutional right to marry and are therefore entitled to the same rights and benefits as opposite-sex married couples nationwide. This is a major shift for employers who no longer need to deal with differing state laws. An employer should revisit its policies and practices regarding EEO and discrimination, employee benefits, leave policies, family and medical leave, marriage status and tax information to ensure it lawfully implements this ruling.
2015 was a breakthrough year with respect to workplace rights for lesbians, gays, bisexual and transgender (LGBT) individuals as state and local lawmakers continue to expand LGBT rights in the workplace and prohibit discrimination, harassment and retaliation based on sexual orientation and gender identity as well as provide reasonable accommodations. It is critical for an employer to incorporate equal employment opportunity into its policies and employee handbooks.
Reasonable Accommodations for an Increasingly Diverse Workplace
As workplaces become more inclusive, employment policies and practices must keep up with the times. That means complying with various federal, state and local laws and providing workers with reasonable accommodations based on pregnancy, religion, disability and sexual orientation if doing so would not create an undue hardship.
Paid Sick Leave
The trend toward providing paid sick leave and permitting workers time off to care for themselves and their families has gained momentum. This past year, paid sick leave was mandated for federal contractors and an increased number of states and cities passed paid sick leave legislation.
National Labor Relations Board on the Prowl
The NLRB is continuing to vigorously pursue employers who implement and seek to enforce rules prohibiting employees from engaging in protected concerted activities under Section 7 of the National Labor Relations Act (NLRA) or collective action to improve their wages, hours and working conditions. Thus, 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.
Wearable devices can be used in the workplace to improve communications, safety and employee health and wellness. However, these devices also carry a number of risks for employers as well. Thus, your company should be prepared to implement wearable technology policies and outline proper workplace use.
Expanding Who Is Entitled to Overtime and Raising the Minimum Wage
The Department of Labor’s proposed regulations, which are likely be finalized in the spring of 2016, would greatly increase the number of employees eligible for overtime by raising the salary for exemption to $50,440. As a result, an employer should reassess its workforce and determine if any changes should be made such as increasing the salary of employees who are currently exempt, reclassifying employees or reviewing job descriptions.
Providing Independent Contractors with Increased Rights
Based on recent worker misclassification cases on both the federal and state level as well as guidance from the Department of Labor (DOL) suggesting that most independent contractors are actually employees when viewing the economic realities and evaluating all factors, a prudent employer should assess all independent contractor relationships. This review is absolutely critical to reduce the risk of misclassification.
The Joint Employer Standard: Expanding the Pool of Employers
This past year, the NLRB issued the game-changing decision of Browning-Ferris Industries of California, which substantially expanded the standard for finding that two employers constitute a joint employer for collective bargaining purposes and liability under the NLRA. Previously, two entities were joint employers if they shared the ability to directly and immediately control or determine essential terms and conditions of employment.
However, the new standard broadens this definition and states that a joint-employer relationship exists if the alleged joint-employers possess, exercise or simply retain the right, directly or indirectly, to control essential terms and conditions of employment, even if control is not actually exercised.
Thus, an employer should closely evaluate its business relationships and contracts to assess whether it has the right to control, either directly or indirectly, the terms and conditions of a contracted employee or another company’s employee.
Telecommuting and Flexible Work Arrangements
Studies show that approximately 30% to 45% of the US workforce now telecommutes on some basis or engages in flexible work arrangements. Those numbers are likely to continue growing in 2016. If an employer permits telecommuting, it should be sure to maintain a firm policy that sets forth clear guidelines and expectations and make sure to monitor workers so as to maintain productivity.
And don’t forget about….
Health Care Reform
In 2016, applicable large employers will be required to report the terms and conditions of the health care coverage they provide or else could be liable for a total penalty of $3 million in a calendar year.
What’s the biggest employment challenge facing your company in 2016? Let us know by leaving a comment below.