Embed Size (px)
Citation preview
Top 10Employment Law Challenges of 2017
2017 Will Bring Significant Changes in the Workplace
New Federal Administration
oTrump White House
oRepublican House & Senate
1 2
Federal Agency Actions/ State & Municipal Laws
Aimed at expanding employee rights
Criminal penalties
Administrative actions
Litigation
Costs of Noncompliance
Harm to business reputation and public image
Civil fines
Each new year brings changes in the workplace and the legal landscape that keep employers on their toes. Failure to comply could make an employer susceptible to:
XpertHR Survey: Most Challenging HR Compliance Issues of 2017 o Surveyed nearly 1,200 HR
professionals in November 2016 on their views of compliance challenges in 2017
o Responses came from small, medium and large employers, a wide variety of industries, spanning all geographic areas of the country
Job Level Breakdown:
Company Size Breakdown:
6%7%
27%
35%
16%
2%4% 3%CEO, C-Level, EVP
SVP, VP, GM
Director
Manager, Supervisor
Administrator, Analyst, Specialist, Coordinator
Business Owner
Other
Junior/Entry-Level
49%
21%
19%
11%
1 - 249
250 - 999
1,000 - 9,999
10,000+
Compliance Challenge: Election1
Historic election There is now a great deal of uncertainty with incoming Trump administration and Republicans now in control of both the House and the Senate.
Obama’s initiativesMany employers are wondering what will happen to Obama’s pro-employee initiatives
Compliance Challenge: Election1What Is at Stake?
o The Supreme Court and its effect on employment cases
o The National Labor Relations Board's (NLRB's) appointees and issues which include expanded workplace rights, protected concerted activity, independent contractors, temporary workers and joint-employer doctrine
o Obama-backed employment initiatives such as: the revised overtime regulation; the Equal Employment Opportunity Commission's (EEOC's) revised EEO-1 Report that will collect data on compensation and hours worked, plus the EEOC's focus on expanding protections based on gender identity and sexual orientation; increased penalties and reporting requirements under the Occupational Safety and Health Administration (OSHA); paid sick leave for federal contractors and immigration measures.
o Congressional measures backed by Democrats related to fair pay, reasonable accommodations for pregnant women and paid sick leave
o Cyber security and data privacy
o Federal regulations on businesses and the return to states’ rights
o Trump proposals - 6 weeks of paid maternity leave for working mothers, and a nationwide E-verify mandate
Compliance Challenge: Election1
Minimum wage (Arizona, Colorado, Maine and Washington)
Recreational marijuana (California, Massachusetts and Nevada)
Medical marijuana (Arkansas, Florida, Maine and North Dakota)
Paid sick leave (Arizona and Washington)
State and Local Legal Changes
Compliance Challenge: Election1What an Employer Should Do
o Comply with the laws that are on the books, at least until they are changed
o Monitor developments closely
o Maintain adequate records and documentation regarding employees and employment actions
Compliance Challenge: Workforce Planning221st Century Workforce Trends Impact Recruiting, Hiring and Retention
Gig economyAlternative work arrangementsAging workforce
Search for talent/finding high quality applicantsChanging societal demographics Global marketplace
Compliance Challenge: Workforce Planning2
XpertHR Survey
of respondents said they were extremely or very challenged in finding high quality applicants
were extremely or very challenged by employee engagement and satisfaction
were extremely or very challenged by employee retention
found aligning talent retention strategy with business objectives to be extremely or very challenging
55%
45%
43%
felt extremely or very challenged by screening candidates (i.e., Ban the Box, FCRA/credit checks)
found aligning talent acquisition strategy with business objectives to be extremely or very challenging
21% 37%
38%
Compliance Challenge: Workforce Planning2What an Employer Should Do
o HR should play an active role in shaping the evolving workforce
o Align HR objectives with business objectives
o Investing in talent - greater return on investment/improves economic performance
o Bring creative solutions to business challenges
o Strengthen corporate brand and reputation
o Follow trends in technology, industry and diversity
o Provide mentoring and leadership to employees
Compliance Challenge: Mandated Employee Leave Protections
3
Following the rapid rise of leave laws
Managing complex interrelationshipsThe following are examples of potential interplays between varying leave laws:o Injured employee - FMLA, ADA and
workers' compensationo Sick employee - State and local paid
sick leave laws and the ADAo Pregnant employee/new parent -
FMLA, state family leave laws, paid family leave insurance
o Military employee – USERRA, ADA- family military leave- state military leave laws
Federal - FMLA, ADA, USERRA*Federal
Guidance from EEOC
State and local level –
paid sick leave,
military leave,
domestic violence leave,
bereavement leave
* FMLA - Family and Medical Leave | ADA - Americans with Disabilities Leave | USERRA - Uniformed Services Employment and Reemployment Rights Act
Compliance Challenge: Mandated Employee Leave Protections
3
XpertHR Survey
28%
of employers find administrative burden of managing leaves extremely or very challenging
found determining what federal, state and local leave law provisions apply to specific employee situations to be extremely or very challenging
34%
of employers find tracking and complying with rapidly changing leave laws across states to be extremely or very challenging while 28% find tracking and complying with rapidly changing leave laws across municipalities to be extremely or very challenging
of respondents to indicate that determining overall business strategy for employee leave benefits and compliance is extremely or very challenging
28% 28%
Compliance Challenge: Mandated Employee Leave Protections
3
What an Employer Should Do
o Determine which leave laws apply to each workplace
o Revise policies and procedures, employee handbooks and workplace notices to properly advise employees of their rights under leave laws
o Review all paid time off, vacation or other paid leave policies and reasonable accommodation policies to determine if other policies may need to be created
o Train supervisors on leave laws and how to handle leave requests
o Understand how different leave related laws intersect
Compliance Challenge: Threat of a Cyber Breach4
Rapid pace of technological developments, omnipresent internet and mobile devices
o Significant impact on the workplace in terms of mobility, communication, productivity and efficiency
o Risks with regard to safety and security - can lead to data breaches and loss of confidential information or damage an employer’s reputation
Minimize riskHR needs to take steps to minimize risk of cyber breaches and to protect digitally-maintained confidential information, such as trade secrets
Compliance Challenge: Threat of a Cyber Breach4
XpertHR Survey
32%of respondents stated that they found preventing cyber breaches to be extremely or very challenging
of respondents noted that managing mobile devices and wearable technology is extremely or very challenging
44%
Compliance Challenge: Threat of a Cyber Breach4
What an Employer Should Do
o Safeguard confidential information and minimize the risk of a cyber breach
o Critically assess, audit and properly safeguard the confidential information belonging to:• Employers (i.e., trade secrets and confidential and proprietary information)• Employees (i.e., credit reports, social security numbers and driver's license
information, health and medical records) • Customers (i.e., credit card data and purchasing records)
o Make sure employer’s confidential information is secure through the use of encryptions and firewalls
o Develop, implement and enforce policies to minimize risk• Confidentiality policies• Privacy policies• Mobile device policies• Policies regarding social media and internet use • Policies relating to business ethics and employee conduct
Compliance Challenge: Threat of a Cyber Breach4
What an Employer Should Do (Continued)
o Utilize nondisclosure agreements
o Train employees and supervisors
o Screen potential employees for dishonest or fraudulent conduct
o Conduct exit interviews
o Make sure all equipment and technological devices are returned
o Terminate access to private and confidential information
Compliance Challenge: Benefits and the ACA 5ACA (The Affordable Care Act)
Reporting deadlines, penalties
Challenging issues around complicated relationships such as independent contractors, gig economy and joint employersThe annual health care reporting requirements
Failure to comply with deadlines face penalties and costs
On-demand or gig economy with large number of independent contractors and temporary employees
Joint-employer doctrine and determining which entity controls the employee is a further complication
Compliance Challenge: Benefits and the ACA 5XpertHR Survey
of respondents stated that ACA reporting requirements were very or extremely challenging
38%
of respondents ranked this as their first, second or third highest concern for 2017 on a scale of 1-10
30%
were concerned about the ACA in general and rated it extremely or very challenging
36%
Compliance Challenge: Benefits and the ACA 5Benefit Programs
ProsHelps attract and retain employees, increases employee engagement and provides an employer with a significant competitive advantage
ConsRising healthcare costs require creative strategies and evolving offerings
27%
extremely challenged or very challenged by offering different benefits to different groups of employees
challenged by aligning benefits offerings with business objectives
21%
Compliance Challenge: Benefits and the ACA 5XpertHR Survey
Compliance Challenge: Benefits and the ACA 5
What an Employer Should Do
o Complete the proper forms accurately and in a timely manner
o With regard to independent contractors, gig workers, or in a joint-employer situation, an employer should carefully assess each worker and the employment relationship, and evaluate who has the right to control and direct the individual’s work as well as how, where and when the work is performed
o Offer creative options such as tuition reimbursement, flexible work time, commuting benefits, gym membership, dental and vision insurance
o Manage needs of different cohorts with different generations in the workforce - reject cookie cutter approach
o Consider supplemental and voluntary options, personalization and customization
o Understand increased use of technology and mobile applications
o Make sure that any wellness programs comply with the EEOC’s rules under the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) effective January 1, 2017
ACA Employee Benefits
Compliance Challenge: Evolving Workforce 6New Ways of Working
Telecommuting
Job sharing and flexibility
Flex timeOn-demand or gig economy – independent contractors / freelancers / temporary / contingent workers
Ability to employ workers from diverse geographic areas
Compliance Challenge: Evolving Workforce 6Pros
Flexibility for workers, savings on commuting and childcare
Compliance Challenge: Evolving Workforce 6Challenges
Application of federal, state and local laws regarding discrimination and harassment protections
Managing and classifying employees for wages and overtime protections
National Labor Relations Board (NLRB) bargaining rights
Compliance Challenge: Evolving Workforce 6XpertHR Survey
50%extremely challenged when it comes to remote workers and telecommuting or alternative work arrangements such as job sharing and flex time
of employers selected the evolving workforce as one of their top concerns
20%
Compliance Challenge: Evolving Workforce 6What an Employer Should Do
o Establish policies regarding telecommuting/remote workers to meet deadlines, maintain accountability
o Maintain policies requiring employees to track time and avoid working unauthorized overtime
o Properly classify workers
o Evaluate working relationships and make sure they are legally compliant
Compliance Challenge: Equal Pay 7Focus of Federal and State Law
Equal Employment Opportunity Commission (EEOC) Strategic Enforcement Plan Sets forth equal pay as an enforcement priorityEEOCRevised EEO-1 Report will collect information on compensation and hours workedState lawsExpanding reach of state and municipal leave laws. Some amended laws prohibit employers from banning salary discussions, or prohibit employers from requesting salary information
7 Compliance Challenge: Equal Pay XpertHR Survey
Say changes to the EEO-1 Report (to include information on compensation and hours worked) will be extremely or very challenging
25%
one in four believe that equal pay and wage transparency is extremely or very challenging
25%
More than one in three respondents ranked pay issues in their first, second or third workplace challenge in a scale of 1-10
33%
o Review pay practices, job descriptions, salaries, benefits and bonuses to make sure that the employer is not discriminating based on sex, race, national origin or any other protected class
o Make sure wage differentials are based on legitimate and nondiscriminatory factors — such as education, training or experience — and supported by written documentation, or they should be corrected
o Maintain EEO policy prohibiting wage discrimination
o Institute internal multichannel complaint procedure allowing an employer to investigate claims of discrimination
o Create clear guidelines for compensation, including salary increases and bonuses based on predictable, objective and nondiscriminatory factors such as merit, productivity, performance, sales or some combination of factors should be established
7 Compliance Challenge: Equal Pay What an Employer Should Do
o Train managers and those with hiring or supervisory responsibilities on parameters
o Document all decisions regarding hiring pay, performance and promotion
o Implement recordkeeping policies and procedures
o Keep record of wages, job classifications, pay performance, promotion and other terms and conditions of employment
o Avoid limiting employee discussions of wages
7 Compliance Challenge: Equal Pay What an Employer Should Do (Continued)
Compliance Challenge: Employee Handbooks 8Pros
Communication tool between employer and employees
Guides managers and supervisors on how to handle frequently encountered issues
Sets forth standards for employee behavior, workplace conduct and performance expectations
Incorporates and communicates an employer’s goals and mission Prevents and defends against lawsuits
8XpertHR Survey
Compliance Challenge: Employee Handbooks
of respondents are extremely or very challenged by keeping employee handbooks current with new laws and trends
find it extremely or very challenging to ensure handbooks are read and used actively by employees
are extremely or very challenged by having employee handbooks align with their business objectives
are extremely or very challenged by incorporating municipal requirements into employee handbooks
40%
42%
21%
of respondents feel extremely or very challenged by the NLRB invalidating employer policies
are extremely or very challenged by multistate handbook variations
21% 22%
26%
8What an Employer Should Do
o Remain compliant with latest federal, state and local laws and the interplay between those laws
o Monitor legal developments in areas such as EEO, leave, safety and accommodations that change rapidly
o If employer operates in multiple jurisdictions, consider adopting broad workplace policies encompassing federal, state and municipal requirements or use addenda
o Draft policies in a narrow and unambiguous manner so they do not infringe upon the employee right to engage in protected concerted activity
o Be particularly cautious about policies addressing social media, contact with the press, confidentiality, investigations and employee communications
Compliance Challenge: Employee Handbooks
8What an Employer Should Do (Continued)
Compliance Challenge: Employee Handbooks
o Make the employee handbook and its policies easily accessible, readable, relevant and interesting
o Use hypotheticals, practical examples, anecdotes and narratives as well as colors, visuals and graphics
o Train all employees and supervisors on handbook provisions
o Require employees and supervisors to acknowledge receipt and review
Compliance Challenge: Overtime Changes 9Revised Overtime Rules
New overtime rules scheduled to take effect on December 1, 2016 would have made salaried workers earning up to $47,476 per year or $913 per week eligible for overtime pay.On November 22, 2016,
the US District Court for the Eastern District of Texas issued a preliminary injunction preventing the DOL from implementing and enforcing the new overtime rule. The DOL may appeal the injunction, but for the time being, the overtime rule will not be implemented or enforced.
9XpertHR Survey
One in three of respondents stated that the revised overtime rules were going to be extremely or very challenging
33%One in five of respondents anticipated that properly classifying and managing newly nonexempt employees under the revised overtime rules would have beenextremely or very challenging
20%
More than four in ten of respondents revealed that preventing nonexempt employees from working off hours, such as checking emails, would have been extremely or very challenging
40%
Compliance Challenge: Overtime Changes
9What an Employer Should Do
Compliance Challenge: Overtime Changes
If rules go forward
o Proceed with the changes regarding reclassification of workers
o Revise employee handbook and internal policies and practices on time-keeping, meal and rest breaks, working off the clock, overtime, and telecommuting
o Closely monitor any overtime worked to avoid liability
o Communicate changes to employees and supervisors
o Provide proper training
If employers had not changed pay practices
o Maintain their current pay practices and should wait and see what happens in the courts
o Track employee hours
Employers that increased, or planned to increase, salaries
o May rescind raises but this could lead to morale and communication issues
o Make up difference with bonus
o Focus on minimizing negative feelings and providing continued incentive
1 2 3
10 Compliance Challenge: Diversity in an
Increasingly Global World Pros of a Diverse Workforce
Increasingly global world
Better brand reputation and customer relations
Compliance perspective – EEO laws
Higher productivity and efficiency
Numerous business and cultural benefits
Improvements to thebottom line
10 Compliance Challenge: Diversity in an
Increasingly Global World XpertHR Survey
found aligning diversity and inclusion efforts with business strategy is extremely or very challenging
20%
found building and maintaining a diverse workforce to be extremely or very challenging
20%
of respondents feel extremely challenged or very challenged when it comes to managing different generations in the workplace
26%
o HR should be proactive and incorporate diversity into the employer’s organization create an inclusive workplace with training and policies to support
o Align diversity with business goals and corporate strategies
o Obtain buy-in of key stakeholders and those in upper management
o Understand benefits diversity bring to the organization
o Look beyond geographic pool when hiring, and reach out to a wide variety of candidates
o Maintain neutral job advertisements
o Focus on an individual’s education, skills and experience
10 Compliance Challenge: Diversity in an
Increasingly Global World What an Employer Should Do
o Develop and enforce policies and practices encouraging diversity and tolerance
o Prohibit discrimination and harassment
o Provide reasonable accommodations
o Provide training to supervisors and employees
o Consider utilizing employee resource groups or affinity groups for those who share common traits or characteristics (i.e., working mothers, LGBT individuals, veterans, Hispanics and individuals with disabilities) as valuable tools to promote diversity
10 Compliance Challenge: Diversity in an
Increasingly Global World What an Employer Should Do (Continued)
Final Thoughts
o Prepare for challenges o Review and revise workplace
policies and practiceso Ensure workplace policies
and practices are legally compliant
o Be proactive and prepared to respond to changes in a meaningful way
o Remain transparent with employees regarding any changes to workplace polices and practices
Free Annual Report: Top 10 HR Compliance Issues of 2017Each new year brings new challenges to the workplace. Are you prepared?Get practical tips and expert guidance on how to respond and ensure legal compliance with 2017's top HR challenges and emerging trends.
GET THE GUIDE
XpertHR: A Trusted ResourceCompliance is a critical part of the HR function — and one that can divert you from the ability to play a more strategic role in your organization. We’re here to help!
o Choose from flexible solutions and a range of subscription options to best meet your needs.
o Whether you’re focused on international, national, state or local issues, we have the answers.
o Give your entire team immediate access to the information and resources they need.
With content written by more than 400 attorneys from 70 of the country’s top employment law firms — and edited by an in-house team of legal editors and HR professionals — XpertHR takes the worry away.
LEARN MOREVIDEO OVERVIEW
www.xperthr.com
[email protected] 855-XPERTHR XpertHR USA @XpertHRusa
