Hot Employment Topics to Watch
As 2015 winds down, we reflect on the many legal changes that occurred in 2015 and that will shape the coming year. Many laws that are key to and essential for the workplace are set to change in 2016 or are in the legal spotlight. ThinkHR recently presented a webinar hosted by Samantha Yurman, attorney and legal editor, addressing these topics with Chief Employment Knowledge Officer, Laura Kerekes. Samantha and Laura discussed a significant amount of information regarding highly technical laws and compliance issues employers should be aware of now and in the coming year, including:
- Medical marijuana and workplace drug testing. While states continue to pass medical (and sometimes recreational) use laws, employers have an absolute right to maintain a drug-free workplace and can prohibit employees from using marijuana in or about the workplace and from working under the influence of marijuana. Employers can discipline employees for use in the workplace or working under influence of marijuana.
- Social media and § 7 of the National Labor Relations Act. Employers cannot prohibit employees’ discussion about the terms and conditions of employment for the mutual aid and benefit of the workforce. Social media (Facebook, Twitter, Yelp, posting, updating, commenting, etc.) when used by employees to communicate in regard to the workplace to address conditions at work may not be stifled and if stifled by workplace policy is a violation of NLRA § 7 protections.
- Distracted driving on company business. The Occupational Safety and Health Administration (OSHA) calls upon employers to prohibit any work policy or practice that requires or encourages workers to text while driving. Employers who require their employees to text while driving violate the Occupational Safety and Health Act. Employers should work with their trusted insurance broker to design risk reduction efforts that put safety first and help identify any loopholes in policies and coverage, thereby protecting both employees from injury and employers from liability.
- Ban the Box. The Equal Employment Opportunity Commission (EEOC) recommends, and some state and federal laws require, that employers remove the criminal history check box from job applications. Employers may condition offers of employment upon obtaining a satisfactory background check. As of December 1, 2015, 19 states have adopted ban-the-box policies: California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, and Virginia. Seven states have completely removed the conviction history question on job applications for private employers: Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island.
- Pregnancy in the workplace. Employers must be prepared to implement legal protections and make necessary accommodations for pregnant workers. The federal Pregnancy Discrimination Act’s fundamental requirements are that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or other related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work. State level protections are also in place regarding pregnancy discrimination. (See www.dol.gov/wb/maps/2.htm.)
- Unpaid interns and volunteers. All employers should ensure unpaid interns and volunteers are not subjected to workplace harassment and/or discrimination. Federal laws have been introduced and state laws enacted to provide workplace protections to unpaid interns and volunteers. Workplace policies must be crafted to ensure equal protections for all persons in the workplace, not just those receiving a pay check.
- Employee versus independent contractor. According to the IRS, an individual is an independent contractor if the employer has the right to control or direct only the result of the work and not what will be done and how it will be done. The key is the right to control. Misclassification occurs when an employee is incorrectly labeled an independent contractor, resulting in significant legal and financial repercussions both for the worker and the employer.
- Wage and hour law changes. The U.S. Department of Labor proposed an overhaul of the minimum wage and overtime laws which would result in an increase to the standard salary level to $970/week or $50,440 annually (from $455/week or $23,660 annually). Industry-wide predictions are that the overhaul would be enacted in late 2016.
- Paid sick leave laws. Currently there is no federal law that requires paid sick leave for private employees; however, the federal Healthy Families Act was introduced and would provide employees the opportunity to earn a minimum of seven paid sick days (56 hours) per year to care for themselves or their families. States are also beginning to move toward requiring paid sick leave for employees.
Final Thoughts on Best Practices for 2016
The major trend for employment law this year and into the next is change. Employment and labor laws are in constant flux and employers may find it difficult to stay up to date with all the intricacies. Let our exceptional knowledge base of Human Resource Advisors on ThinkHR’s world-class Hotline help you and your company throughout the years to come. ThinkHR helps your company gain the competitive advantage with the most trusted and most used HR solutions and services.
ThinkHR customers can watch our recent webinar, Hot Employment Topics to Watch, by signing in to Comply and navigating to the webinars library.