Hot Topics in Employment Law: What to Worry About in 2016

With a title like that, and a chance to hear directly from three of the region’s leading employment law attorneys from Meyers Roman, it shouldn’t come as a surprise that even on a dreary April morning there was a packed house for the latest program in ERC’s “Ask the Expert” series.

The program lead off with partner Jonathan Hyman describing the overall employment law landscape that has been constructed by various federal agencies in recent years as “activist”. With very little chance of legislative action at the federal level, these administrative agencies have, in recent years, taken on a more forceful role in making changes aimed at protecting and promoting worker’s rights, changes which have generated new challenges and questions for employers. 

Over the course of the next two hours, Jon, along with colleagues Seth Briskin and Steven Dlott, provided the attendees with critical insights into the targeted enforcement areas and tactics being employed by the Equal Employment Opportunity Commission (EEOC); Occupational Safety and Health Administration (OSHA); Bureau of Workers Compensation (BWC); Department of Labor (DOL); specifically the Wage & Hour Division, and National Labor Relations Board (NLRB) to find evidence of wrongdoing on the part of employers. Highlights from the materials covered for each of the agencies are described below.

Equal Employment Opportunity Commission (EEOC)

Systemic Discrimination

The EEOC is focused on uncovering and challenging policies and practices that intentionally or unintentionally target specific groups (i.e. gender, race, ethnicity, economic, etc.). Areas of particular interest for which employers should be aware include policies and practices impact hiring/firing decisions, rates of pay, background checks, wellness programs, and accommodations for and/or discrimination against pregnant women and LGBT employees.

Looking Ahead: Major Rule Changes

• Revised EEO-1: The new EEO-1 form would significantly expand reporting requirements to include pay data by gender, race, and ethnicity. This is aimed at discovering and addressing pay equity (again both intentional and unintentional). However, the U.S. Chamber of Commerce has been quite vocal in their opposition of this expanded reporting requirement questioning whether or not the additional information will provide the information necessary to determine if/when pay is inequitable.
• LGBT Discrimination: Already in the works, the EEOC has announced that they will take cases based on sexual orientation and gender identity. This is despite the fact that Title 7 technically does not include specific language that would group LGBT individuals together as a protected class. With Congress unlikely to act on the issue, the EEOC is simply expanding their interpretation of the Title 7 language.
• Pregnancy Discrimination: On the surface this topic is fairly straightforward, as discrimination against pregnant employees is already illegal under the ADA. However, a new Ohio bill, the Pregnancy Reasonable Accommodation Act is likely to pass this year with rare bi-partisan support in the state legislature, thus codifying practices that are already being followed—with a little nuanced language could pose challenges for employers. Under the new state law, an employer would be required to go one step further than “reasonable” accommodation and instead offer the pregnant employee her “preferred” accommodation. In short, the employee wouldn’t have to accept the first accommodation offered to her and could request a modification to fit her own “preferences”.

Occupational Safety and Health Administration (OSHA)

Emphasis Programs Vary by Region

Each region of the country (Ohio falls in Region V) has its own set of emphasis programs based on “certain high risk workplace conditions or industries” that are more common in that geographic area.

Areas that are somewhat unique to Region 5 include dairy farms and grain handling facilities, building renovation/rehabilitation/demolition, tree trimming operations, carbon monoxide hazards in construction, and maritime industries.

Employers should also be aware that even in the absence of an “emphasis program” or specific safety standard on the books, OSHA can always invoke the “General Duty Clause” and cite an employer for a situation that is uncovered that they feel poses a safety or health hazard to their employees.

Looking Ahead: New Standards & Penalties

• Increasing Penalties: Likely to hit this summer, the penalties for OSHA violations are going up for the first time since 1990. Violations are grouped into categories, i.e. Willful, Serious, Other-Than-Serious, De Minimis, Failure to Abate, and Repeated, and are largely based on how imminent the danger was and whether or not the employer knew about the violation. Not only are the penalties going up for all categories, but they will continue to go up across the board in accordance with CPI year over year.
• The Rules Have Already Changed: Not exactly a “look ahead”, but there are definitely some rules that have been tweaked in noteworthy ways in the very recent past of which employers should be aware. Key examples noted during the presentation include: whistleblower protections—language changed from “motivating factor” to “good cause”; injury reporting changes—condensed time frames for reporting fatalities, injuries, etc.; repeat violation statute of limitations—lengthened from 3 years to 5 years; and new standards for confined spaces—mandatory training.

Bureau of Workers Compensation (BWC)

Violation of Specific Safety Requirements (VSSR)

Unlike the EEOC and OSHA, the BWC, and specifically its Safety Violations Investigation Unit (SVIU), isn’t overhauling any major guidelines or implementing any new target areas. Instead, this portion of the program served as an explanation of how the BWC’s safety investigations, the VSSR, play out as well as steps employers can take to minimize the financial damages they are ultimately assessed.

Also unlike the other agencies, a VSSR investigator that comes onsite to a workplace must limit their investigation to the specific safety codes that have been violated and cited by the injured worker in their BWC claim.

Although the scope of the investigation is narrower than many others related to workplace safety, where employers can face a major challenge is with regard to the timing of these claims. The injured worker has two years from the time of the incident to file the VSSR claim, so it is critical that employers perform as much documentation as possible internally at the time of the incident.

Department of Labor (DOL), Wage & Hour Division (WHD)

Misclassifications

The misclassification of workers that the DOL is currently focused on fall into three major categories:

1. Exempt vs. non-exempt
2. Independent contractor status
3. Unpaid interns/volunteers

The method by which employees are paid as well as the amount of the compensation provided (if any) are largely determined by their classification. For this reason, job descriptions and detailed performance evaluations are key to maintaining accurate up to date classifications for all employees.

Especially when it comes to accurately assigning the exemption status, employers (and specifically HR) should know exactly what job duties each employee undertakes on a day to day basis.

Armed with this knowledge and walking through each step of the specific classification tests, employers should be able to accurately classify their employees. Employers shouldn’t try to force a position into a certain classification regardless of whether it’s for their own or the employee’s benefit. However, when in doubt, the attorneys repeatedly reinforced that “If it walks like a duck and quacks like a duck…” it’s probably a duck. In short, use common sense.

Looking Ahead: Exemption Status

• Overtime Pay: Although it is still in the rulemaking stage, the DOL has proposed and is moving ahead with significant increases to the minimum dollar amount that qualifies a position to be exempt from FLSA overtime. Currently, to be considered exempt from overtime pay an individual must be paid more than $455/week ($23,660 annually). Under the new proposed rule this figure would more than double to $970/week or $50,440 annually. There are also changes in the works for the minimum amounts for “highly compensated” employees.
• Exemption Test: Currently the DOL has not made any changes to the exemption test itself, but there is significant discussion around whether or not changes should be considered in the near future. Another challenging issue that the DOL is likely to weigh in on sooner than later is that of electronic device usage after hours and overtime pay.

National Labor Relations Board (NLRB)

Technology & Protected Concerted Activity

With union membership on the decline, the NLRB is turning to the world of technology to keep up with the evolving nature of “protected” activity—regardless of whether or not a union is in place at the employer in question.

This means that instead of changing rules like many of the other federal agencies discussed previously, for the NLRB, bringing the world of labor relations into the 21^st century requires that an entirely new set of rules be created.

To do this, the NLRB primarily relies on legal precedents from cases they are bringing against employers related to “protected” employee activity on electronic devices.

Looking Ahead: Setting Precedents (Or Not)

• Union Activity: The NLRB has already ruled that employer email systems can be used for union activity and that union petitions can be signed using electronic signatures.
• Social Media: Unlike email and e-signatures, the realm of social media is still a moving target for the NLRB. Without any past guidelines on where to draw the line in terms of what is “protected” on social media, the NLRB are attempting to establish legal precedents that would ultimately assist unions in their ability to leverage social media as a union tool. However, the results from the courts have been mixed, with much to still be worked out in terms of what is considered “protected” activity, specifically on employees’ personal social media accounts.

Disclaimer: ERC does not provide qualified legal opinions. Information obtained through the site and services should not be relied upon or considered a substitute for legal advice. The information ERC provides is for general employer use and not necessarily for individual application. ERC recommends that you consult legal counsel for workplace matters.