2016: A Year of Employment Law Changes

Human Resources professionals in companies large and small are likely to agree that 2016 was a particularly taxing year, with its steady flow of dramatic revisions to existing labor and employment laws.

Legislation and the courts, not to mention the “court” of public opinion, have all contributed to the unique challenges HR departments across the country are now facing – changes in overtime laws, managing traditional drug testing in the age of legalized marijuana and battles with transgender discrimination, to name just a few.

It can be dizzying to keep up with it all the developments and updates. Perhaps acknowledging the sheer number of changes to contend with, attorney Peter Siegel from Greenspoon Marder has compiled a helpful list of top HR developments impacted by state and federal statutes, laws and court decisions.

According to Siegel, these are the employment-related developments likely to make the most impact in 2017.  This article is an attempt to summarize Siegel’s message and offer brief solutions.

Overtime Laws

In May of last year, the U.S. Department of Labor issued changes to the overtime exemption rules under the Fair Labor Standards Act. The ruling was supposed to go into effect December 2016, until a a district judge in Texas entered a nationwide injunction. Up until that point, the threshold on the minimum salary for exempt employees was getting ready to double to $47,476 annually.

What does this mean for you? It remains unclear. Some companies that had already announced the salary changes moved forward with them anyway. Others did not. I provided an overview of this topic in my article, “Overtime Rules Change… Again,” in our December 2016 newsletter.

Marijuana in the Workplace

Today, legalized marijuana, both medical and recreational, have created a challenge for organizations to establish and reinforce clear drug-testing rules*.

As of July 2016, 25 states and the District of Columbia have legalized the use of medical marijuana. Protections for legal marijuana usage vary widely from state to state, with rules that run the gamut. To make matters worse, there is no federal acceptance of these new laws.

With a new presidential administration in place, no one really knows the future of how statutes will be enforced. But according to Siegel, the new U.S. Attorney General, Jeff Sessions, may at least pursue steps to slow the nationwide march to legalize marijuana.

*A more extensive overview of this topic, with advice for companies considering a drug-testing program, can be found in our April 2017 newsletter.

Transgender Discrimination

Federal and state government – as well as plaintiff attorneys – have become increasingly aggressive in prosecuting transgender employment discrimination cases. In addition, Spiegel reports, the U.S. Supreme Court recently announced it will hear argument – and then issue a ruling on – a transgender bathroom right’s case involving a Virginia public school student.

It should be no surprise that LGBT-related discrimination is prohibited under title VII of the 1964 Civil Rights Act. As early as 1989, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful under title VII.

David Smith, Ph.D., president and CEO of EASI–Consult® agrees with Spiegel’s argument that employers must train their managers accordingly, update existing employee handbooks and related workplace policies, and ensure that affected employees are sufficiently protected from workplace discrimination and retaliation.

Social Media Policies

Spiegel reports that 78 percent of Americans currently have a profile on at least one social media website. And a recent Pew Research poll revealed that 34 percent of employees report to surfing social media when they want a “mental break” from the job.

The concern for HR is that, unfortunately, today’s tools can become tomorrow’s weapons. Harassment in the workplace knows no boundaries, and so social media has become a source of concern to the point that the courts have gotten involved.

In California, for instance, a man sued for harassment after several of his coworkers made repeated offensive and derogatory comments about his physical disability on a blog created by one of those coworkers. When the employer learned of the blog, an in-house investigation was conducted that determined several employees were accessing the blog from workplace computers.

The court noted that the employer did not take action until two months after learning of the blog.  At the trial, the jury found for the plaintiff and awarded more than $800,000 in damages. (Lora Jennings, Thinking Bigger, Business Media, Inc.)

Spiegel recommends employers implement social media policies that include necessary prohibitions against certain activity.  Smith, too, recommends such a policy – and that companies review any existing policies and implement them with consistency.

For more on this see our March newsletter.

Spiegel concludes that with a new administration, we can expect a wave of new policies, executive orders and legislation aimed at undoing many of the laws implemented during the Obama administration.

Again, we must wait and see but be diligent.

David Smith, PhD, is the president and CEO of EASIConsult®. EASIConsult® works with Fortune 500 companies, government agencies, and mid-sized corporations to provide customized Talent Management solutions. EASIConsult’s® specialties include leadership assessment, online pre-employment testing, survey research, competency modeling, leadership development, executive coaching, 360-degree feedback, online structured interviews, and EEO hiring compliance. The company is a leader in the field of providing accurate information about people through professional assessment. To learn more about EASI•Consult®, visit www.easiconsult.com, email ContactUs@easiconsult.com or call 800.922.EASI.

EASI·Consult® is the registered name for Expert Advocates in Selection International, LLC.
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