Top 10 Legal Challenges Employers Will Face in 2016


By Allen Smith January 8, 2016

The new year will bring a host of demanding tasks for employers, including 10 top employment law challenges, according to a report issued by XpertHR, a publisher of online HR legal information.

Same-sex marriage now is lawful nationwide following the Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Consequently, employers need to ensure that their policies and practices don’t discriminate against those in same-sex marriages, Beth Zoller, a legal editor with XpertHR, said in an interview with SHRM Online. “Employers must revisit their policies and practices regarding EEO [equal employment opportunity] and discrimination, employee benefits, leave policies, family and medical leave, marriage status, and tax information to ensure they lawfully implement this ruling,” the report stated.

Protections for lesbian, gay, bisexual and transgender (LGBT) individuals are expanding at the federal and local levels, meaning that prudent employers will treat LGBT workers as a protected class, Zoller said. The federal government pronounced in 2015 that treating a LGBT worker less favorably based on sex or gender stereotypes is a violation of Title VII of the Civil Rights Act of 1964, the report said.

Reasonable accommodations for an increasingly diverse workplace are necessitated partly by a 2015 Supreme Court decision that job applicants require religious accommodations. In a separate decision, the Supreme Court ruled that workplace policies that deny accommodations to pregnant workers that are provided to other employees may violate the Pregnancy Discrimination Act. Employers should aim to make accommodation policies more inclusive, Zoller said.

Paid sick leave is another emerging trend. In September 2015, President Barack Obama signed an executive order providing paid sick leave for federal contractor employees, the report noted. Four states—California, Connecticut, Massachusetts and Oregon—as well as Washington, D.C., and more than 20 municipalities have created their own paid-sick-leave laws. Aside from legal requirements, offering paid leave is “a way to retain valuable employees,” Zoller noted.

The National Labor Relations Board’s (NLRB’s) pursuit of numerous workplace policies, such as social media and confidentiality policies, is an ongoing obstacle for employers, the report noted. The NLRB is keen on halting employer actions that stifle employees’ protected, concerted activity, Zoller said. “Avoid overly broad language in social media policies and confidentiality policies,” as they can intrude on protected, concerted activity, she added.

Workplace wearables pose both benefits and risks to employers, the report noted. Benefits include enhanced worker communications and increased workplace safety. In addition, wearables can be part of employee training, such as when employees record themselves performing a task and share the recording with a colleague who provides instantaneous feedback.Risks include possible employee access of inappropriate information, possible loss of employee productivity, invasion of privacy concerns and the potential disclosure of an employer’s confidential information. Employers should have a policy on wearables, Zoller said, adding that they will frequently have to revisit their policy as the technology changes.

The redefinition and expansion of who is entitled to overtime and the increases in the minimum wage at the state and local levels will be among employers’ biggest challenges. The increase in the salary threshold for white-collar exemptions from overtime will “greatly increase employer costs” and result in reclassification of much of the workforce, Zoller noted.

The provision of increased workplace rights for workers who once were classified as independent contractors will have a substantial impact on employers. It has become “increasingly difficult to classify workers as independent contractors,” Zoller said. Misclassification of individuals as independent contractors could lead to the failure to: withhold employment taxes,include workers on medical benefits plans under the Affordable Care Act, complete I-9 forms, pay unemployment compensation insurance, pay workers’ compensation insurance, and provide Family and Medical Leave Act leave—any of which could result in significant penalties.

The NLRB’s revision of the joint-employer standard and expansion of the pool of employers will have a critical impact on labor relations and business relationships of many employers, the report said. The NLRB’s decision in Browning-Ferris Industries of California Inc., 362 NLRB No. 186 (2015), made it much easier to determine that two entities are joint employers, Zoller noted. Under this ruling, a franchisor’s mere potential of control over a franchisee is enough for them to be considered joint employers. “The more discretion a business can vest in its subcontractor, franchisee, subsidiary or distributor, the less likely it will be that the entities will be considered joint employers,” the report said.

Telecommuting and flexible work arrangements are growing in popularity. Telecommuting has increased by more than 80 percent since 2005, and approximately 30 percent to 45 percent of the U.S.workforce now telecommutes on some basis.Employers need to make sure employees are not working unauthorized overtime from home, and apply telecommuting policies evenhandedly so there isn’t favoritism or discrimination, Zoller stated.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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