By Kim Freeman, Director of HR Services, JD
As 2019 begins, management may wonder what is in store for their businesses in the area of Human Resources and employment law.
Fortunately, well before the clock struck midnight December 31, employment lawyers and HR professionals were prognosticating on that topic.
While these forecasts aren’t guaranteed, 2018 provided plenty of clues to make some educated predictions. No matter what changes occur, businesses that partner with a Professional Employer Organization (PEO) such as Resourcing Edge, have a team of HR professionals to help with policy updates, handbook addendums, and trainings.
Employment lawyers at Ogletree Deakins and Jackson Lewis recently made their 2019 employment law predictions, which covered areas such as wages, discrimination/harassment, medical/recreational marijuana, sick leave, and immigration.
According to Ogletree attorney Sean Urich, there may be movement in increasing the federal minimum wage, given that dozens of states and locals have approved increases to take effect in 2019. In addition, Urich and Tara Burke, an attorney at Jackson Lewis, agree that regulators and lawmakers may revisit overtime exemptions.
“We expect to see the Department of Labor finally take action again on the regulations governing overtime exemptions from the FLSA. We expect that the new minimum salary will be higher than it is now, but lower than the Obama Administration’s rule that was declared invalid by a federal court in late 2017,” Burke said.
Urich likewise believes that pay equity disputes will continue to increase. By law, men and women must receive equal pay for equal work.
According to Burke, wage and hour litigation will continue to be a focus. Companies in a co-employment relationship with a PEO can rest easier knowing experienced payroll partners are keeping up to date with any legal changes. But if internal audits are needed, management should seek legal counsel so that the results are protected by attorney-client privilege, Burke said.
Urich’s partner, Adam Dougherty, predicts that sexual orientation will be recognized as a protected category. At least 20 states, plus the District of Columbia, Guam, and Puerto Rico, already have statutes that protect against both sexual orientation and gender discrimination in employment in the public and private sector.
For private employers “sexual orientation” is not a protected class pursuant to Title VII of the Civil Rights Act.
Ogletree Attorney Victoria Vish believes more jurisdictions will “ban the box” in some manner. At least 12 states and 17 localities have rules that regulate “the timing of three main employer actions during the employment process: (a) inquiring about criminal history; (b) providing disclosures and requiring completion of a background check authorization form; and/or (c) actually conducting a background check.”
There is consensus in the legal community that harassment claims will likely continue to rise. The EEOC reported a 50 percent increase of such claims in 2018 over the previous year.
“While the number of claims relating to celebrities and other high-profile individuals, and the related media attention, may be diminishing, we expect to see the number of EEOC charges, law suits and internal complaints to continue to rise,” Burke said. She recommends that employers focus on robust training programs that include topics on workplace civility, bystander conduct and unconscious bias.
In a PEO partnership, businesses have access to HR professionals who can provide expert advice to help employers avoid costly mistakes and lessen risk of discriminatory practices.
Burke forecasts that marijuana will remain a “hot topic of concern” for employers in 2019. Despite marijuana being illegal under federal law, many jurisdictions allow its possession and use for medical reasons. A few states and localities have even approved recreational use. This patchwork of laws regarding pot has complicated matters surrounding drug free workplaces.
In most states, employers can prohibit the use of marijuana, even medically, but there are states that likewise require employers not discriminate.
Another item that Burke foresees keeping HR busy in 2019 is sick leave. “I expect that paid sick leave law compliance will continue as a trend in 2019 as more laws are passed and we expect to see enforcement action surrounding existing laws,” she said. In fact, more than a dozen states, cities, and counties have paid sick leave of some type on the books and there is talk of a federal paid sick leave law that will apply to private companies.
Burke said accrual is usually not the issue, although it is important to get that right. The difficulty for businesses is complying with protected time, call-off, reasons for leave, and covered family members given the many different laws. A PEO partner, such as Resourcing Edge, can help businesses stay compliant with these laws.
The hot-button issue of immigration is not expected to cool down in the new year, according to Ogletree attorneys Urich and Collin Brodrick.
Urich predicts US Immigration and Customs Enforcement (ICE) will ramp up its investigations of worksites that may be out of compliance with US immigration laws. Other experts agree that employers need to remain vigilant about I-9 compliance as it appears ICE received additional funding for enforcement in this area.
Employers who use immigrant labor through H-1B Visas will likely find new rules to comply with starting in April 2019, Brodrick said. New rules will require H-1B visa holders to register electronically with US Citizenship and Immigration Services (USCIS) and mandate “that more individuals with advanced degrees from US institutions are selected to receive visas,” he added.
Ongoing HR and employment law compliance coupled with new regulations and laws sure to come in the new year can feel overwhelming. But with a partner like Resourcing Edge in your corner, your burden is eased so that you can concentrate on your bottom line.
Kim Freeman is the Director of HR Services at Resourcing Edge, and a licensed attorney. The information presented in this article is for informational purposes only and does not constitute legal advice or create a lawyer-client relationship.