These Federal and State Trends May Prompt Handbook Updates in 2019

 

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP February 12, 2019
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This is the second in a three-part series of articles on employee handbook updates. This article explores federal and state workplace compliance trends. The first article reviews changes to California law, and the third part will focus on global handbook policies.

 

By now, many businesses have updated their employee handbooks to reflect 2018 changes and new laws that took effect Jan. 1. But keeping policies and practices up-to-date is a continuous process. Here are some key issues that employers should monitor in 2019 that may prompt additional revisions to the handbook.

Employers should keep a close eye on administrative actions by various agencies, such as the Department of Labor (DOL), National Labor Relations Board (NLRB), Equal Employment Opportunity Commission and Occupational Safety and Health Administration. Agencies "often take the lead in pushing the administration's agenda [by rulemaking] when doing so through legislation proves difficult," noted Lucas Asper, an attorney with Ogletree Deakins in Greenville, S.C. 

But "more activity on the state and local levels will almost certainly have the biggest impact in 2019."

Employers should expect to see more state family-leave requirements, state and local sick-leave laws, accommodations laws, policies arising out of the #MeToo movement and continued marijuana legalization, said Fanny Ferdman, an attorney with BakerHostetler in New York City. "All of these will continue to impact policies and procedures as 2019 unfolds."

Federal Law

The DOL is expected to soon propose a new overtime rule that will raise the salary threshold for the Fair Labor Standards Act's white-collar exemptions from overtime pay. President Barack Obama's administration sought to more than double the $23,660 annual salary threshold to $47,476, but that rule was blocked.

It seems likely that the federal minimum salary for exempt employees will increase, but the amount will be substantially lower than what the Obama administration approved, noted Margaret Grover, an attorney with Wendel Rosen in Oakland, Calif. Secretary of Labor Alexander Acosta has testified to Congress that the salary level below which overtime must be paid should be near $33,000

Some states have a higher salary threshold and may not be affected by a new rate. For example, California employers with 25 or fewer employees must pay exempt workers at least $45,760, and employers with at least 26 employees must pay exempt workers $49,920 or more.

[SHRM members-only toolkit: Calculating Overtime Pay in the United States]

At the federal level, employers should also review recent NLRB guidance and decisions. If an employer made substantial revisions to align its policies with memorandums and case decisions from the Obama administration's NLRB, there may be opportunities to revisit some of those policies based on guidance from and case decisions under President Donald Trump's board, Asper said.

If employers have not already done so, they should look at the NLRB general counsel's 2018 guidance on employee handbooks, which rolled back prior guidance on a number of policies, said Tracy Billows, an attorney with Seyfarth Shaw in Chicago.

So far in 2019, the NLRB has issued a decision limiting the definition of what constitutes "protected, concerted activity" and another broadening the standard for who is considered an independent contractor under the National Labor Relations Act.

However, employers should be aware that the pendulum could swing back if a new president is elected in 2020, Asper noted.

State and Local Updates

The proliferation of paid-sick-leave, paid-family-leave and paid-parental-leave laws will continue to challenge employers to determine the best compliance approach, Billows said, noting that employers should also look for pregnancy leave and accommodation laws at the state level.

While some leave laws don't require specific policies or handbook language—so long as the employer is complying—others have very specific requirements. "This is a constantly moving target right now, so there is no better time than the present to get your handbook up-to-date," Asper said.

More state and local laws that address sexual-harassment prevention, pay equity and marijuana legalization for both recreational and medicinal use are also expected, Ferdman noted.

Although federal and state laws conflict on marijuana's legal status, employers in states where marijuana use is permitted should review and update their drug and alcohol policies, said Amy Traub, an attorney with BakerHostetler in New York City. Employers in states where cannabis use is legal may still prohibit use in the workplace, but they should generally:

  • Distinguish between the use of marijuana for medical purposes and recreational purposes.
  • Outline the disciplinary process to be followed if an employee possesses or uses marijuana while at work.
  • Explain how and to what extent they will accommodate an employee who is medically permitted to use marijuana. Some states that allow medicinal use provide employment protections for registered users, others do not.

'Cultural Forces'

On both the federal and state levels, "cultural forces" are at least as significant as legal changes in prompting employers to revisit their policies, noted Gina Roccanova, an attorney with Meyers Nave in Oakland, Calif. Some large employers, for example, have ended their practice of requiring employees to sign arbitration agreements—not because of any changes in the law but due to pressure from employees and the public. 

"Employees are also demanding greater transparency from their employers," she said.

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