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Legal protections for employees are likely to expand at the state level in 2018 but shrink under federal law, employment law attorneys say. At the federal level, expect a more employer-friendly Department of Labor (DOL), a new proposed overtime rule and greater deference by the National Labor Relations Board (NLRB) to employee handbook policies. But retaliation claims will continue to be prevalent. At the state level, more sexual harassment training laws and pay equity legislation may be passed, as well as laws legalizing marijuana use and requiring paid leave.
More Employer-Friendly DOL
The DOL is likely to shift how it approaches enforcement, most likely returning to more traditional, pre-Obama administration practices, predicted Paul DeCamp, an attorney with Epstein, Becker & Green in Washington, D.C.
He said employers should expect the DOL to:
Proposed Overtime Rule
The DOL predicted in its fall regulatory guidance, published Dec. 14, 2017, that it will issue a proposed overtime rule by October 2018. The DOL is expected to raise the salary threshold for white-collar exemptions but not as high as the Obama administration had.
The Society for Human Resource Management (SHRM) has recommended that the DOL raise the salary threshold from $23,660 to nearly $32,000 annually. The Obama administration overtime rule, a regulation that has been halted while the Trump administration develops its new overtime rule, would have doubled the salary threshold. SHRM opposed this doubling as "too much, too fast."
Greater Deference to Handbook Policies
Changes are afoot at the NLRB as well. The Obama NLRB struck down a number of handbook policies, applying Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Under Lutheran, the board set out a test for when the rule of any employer—unionized or not—will violate the National Labor Relations Act (NLRA). This rule included examination of whether employees would reasonably construe the rule's language to prohibit protected, concerted activity. The rule has been applied to strike down social media and confidentiality policies under the Obama board.
But Lutheran was overturned Dec. 14, after Republicans assumed control of the board. Now that it has been overruled, employers should expect to receive more latitude with policies that are neutral on their face, such as confidentiality policies, said Harry Johnson III, an attorney with Morgan Lewis in Los Angeles and a former NLRB member.
Continued High Number of Retaliation Claims
Retaliation claims are likely to remain prevalent, said Samuel Lilliard, an attorney with Fisher Phillips in Columbus, Ohio. The number of retaliation claims has nearly tripled since 1997, and retaliation now is the most frequently filed charge with the Equal Employment Opportunity Commission. Even if a discrimination or harassment claim fails, a retaliation claim may prevail, he noted. All that is needed to win such a claim is to show protected activity, an adverse employment action and a causal connection between the two.
Sexual Harassment Training
"The end of 2017 marks an unprecedented recognition of sexual harassment in the workplace," said Cheryl Orr and Irene Rizzi, attorneys with Drinker Biddle in San Francisco, in an e-mail to SHRM Online.
As a result, employers should take a look at their sexual harassment policies, complaint and investigation procedures, and training programs, attorneys said. "The impact from what's happening in Hollywood and in politics will trickle down, and we may see new harassment laws and more training mandates at the state level," said Matthew Deffebach, an attorney with Haynes and Boone in Houston.
[SHRM members-only HR Q&A: What is meant by the term 'reasonable person'?]
Currently, California and Connecticut require businesses with 50 or more employees to provide sexual harassment training to supervisors. Businesses with 15 or more employees in Maine must provide training to all workers at the start of their employment. In other states, such as Massachusetts, Rhode Island and Vermont, employers are encouraged—but not required—to provide training.
"We expect more state and local governments to adopt mandatory training programs that will require in-person, annual training for all employees," said John Lomax, an attorney with Snell & Wilmer in Phoenix.
Pay Equity Laws
Many states and cities have banned salary history questions during the interview process. Aimed at combating wage disparities based on gender, these laws generally prohibit employers from asking job applicants about their prior or current compensation and relying on salary history to set pay levels, Orr and Rizzi explained.
California, Delaware, Massachusetts, Oregon, New York City, Philadelphia, Puerto Rico and San Francisco have passed such laws (though Philadelphia's ordinance has been put on hold pending the outcome of a lawsuit challenging the ban).
Some of those laws took effect in 2017 and others will take effect in 2018. More states—such as Idaho, Maryland, New York, Rhode Island, Texas and Virginia—are considering similar legislation.
Marijuana Laws and Drug Testing Policies
Multistate employers will likely face more state and local regulatory efforts in 2018 regarding marijuana use, Lomax predicted.
Furthermore, a tight labor market combined with the increasing number of jurisdictions that recognize medical or recreational marijuana are causing employers to rethink drug testing practices that have been in place for decades, he said.
"In 2018, we are likely to see a continued expansion of employee-friendly rulings in this area," Orr and Rizzi said.
Paid Family Leave
California, New Jersey and Rhode Island currently offer paid family leave, and New York will join the list in 2018. Washington state and Washington, D.C., have also passed such laws, but they won't take effect until later.
Paid family leave in New York will be a big change for employers, said Lauren Leyden, an attorney with Akin Gump in New York City, noting that the program will be phased in over the next few years. Employers need to understand the calculations and other mechanisms of the law and how new requirements compare to current employer offerings, she added.
Although only a handful of states offer paid family leave, others are expected to follow.
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