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There has been a clear trend over the last few years for state legislatures—not federal—to pass employment laws, and that's expected to continue, according to Jonathan A. Segal, an attorney with Duane Morris in Philadelphia and New York City.
No matter what is proposed in the U.S. Congress, change never happens quite as fast as we think it's going to, Segal said during a breakout session at the Society for Human Resource Management Employment Law & Legislative Conference on March 13.
"Although one party now controls the House of Representatives, the Senate and the presidency, there are political divisions within the Republican Party itself, so it's going to be interesting to see what happens at the national level," he said.
Much of the action is taking place in the statehouses. Here are some of the issues he expects to see on the state and local levels and what he thinks HR advocates should keep in mind.
The federal minimum wage is $7.25 per hour, but the majority of states have higher wage thresholds. Nineteen states raised their minimum wages this year, and some states and cities are working their way up incrementally to $15 per hour.
Many states have increased the minimum wage through the ballot box, Segal noted. Even "ruby red" states like Alaska, Arkansas, Nebraska and South Dakota have voted overwhelmingly to increase wages.
The average person votes as an employee, not an employer, so it's not surprising that we get these results, he said.
"What does this mean for you as an advocate?" he asked. Sometimes HR professionals support an increase but wonder about what the adverse impact will be if the minimum wage is raised too high.
If HR professionals decide to advocate against an increase, they should be careful about how they approach it and should focus on the impact it would have on the business.
Exempt Salary Threshold
The federal salary threshold for exempt employees was supposed to double in December 2016, but that rule is now on hold.
[SHRM members-only toolkit: Determining Overtime Eligibility in the United States]
Segal said he's hoping that what will come out of the legal entanglement over the overtime rule is a reasonable increase, but not so quickly and not by so much as the original rule, because businesses need time to adjust.
States are beginning to look at this issue too, he said.
New York state recently recognized that the salary threshold in New York City is too high for other areas of the state, and lawmakers approved different thresholds for different regions.
New York may have set the template for how to change the threshold while taking local differences and variations in cost of living into consideration, Segal said.
The idea of requiring businesses to abide by predictable schedules is percolating across the country, he noted. Employees' need for predictability in order to have work/life balance is understandable, but businesses also need to be able to stay open late or start work early to meet client needs.
Laws requiring businesses to post predictable schedules may impose penalties on businesses that have on-call scheduling, fluctuating hours, back-to-back shifts, split shifts or last-minute schedule changes.
"In advocacy, we have to talk about the adverse impact," he said. If businesses don't change their work hours to meet clients' needs, they may lose customers and jobs.
However, predictable schedules aren't all bad. If predictable scheduling laws are not passed, employers may still want to incorporate these principles into their policies. Employers can say they will be as predictable as they reasonably can be and that they welcome ideas about managing work/life balance while maintaining the authority to make the final decision.
Some of the best companies are trying to make work more predictable, and that may translate to happier and more productive employees, Segal noted.
State and local lawmakers are raising many other legislative proposals:
HR advocates will want to track these bills, Segal said.
Advocates should evaluate bills carefully and think about their position before they oppose a bill. Their arguments should be based on how the measure could hurt employees or businesses and what the unintended consequences of the bill would be.
Segal recommended that employers avoid saying they'll go out of business or could never comply with the proposed law. Remember that what you're writing or what you're tweeting is discoverable in a lawsuit, he noted.
Importantly, HR advocates should pick their battles. For example, he said, it may not be the best use of resources to oppose a bill with bipartisan support that the president is expected to sign.
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