Employment Law This Week®: Special Year-End Wrap-UpEpisode 98: Week of December 18, 2017 December 18, 2017
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This week’s stories include ...
(1) 2017: Paid Leave Goes Local
Our top story: Paid leave goes local. The year 2017 saw the passage of a slew of new state and local paid leave laws, many of which go beyond what is required under the Family and Medical Leave Act (FMLA). Employers in these jurisdictions may find that their own policies are not in compliance with these new laws, even when they are more generous than what is required under the FMLA. New laws include amendments to the California Family Rights Act; universal paid leave in Washington, D.C.; and paid family leave in New York State. Nancy Popper, from Epstein Becker Green, has more:
“We've seen, with the new paid family leave laws, pay associated with leave laws. Previously, they were unpaid leave. We've also seen expanded reasons for the use of this type of leave, not just for one's own serious health condition, but also to care for family members, like grandparents and grandchildren. The federal FMLA also only provides leave for employers with 50 or more employees. These new state and family paid leave laws are providing leave for much smaller employers.”
(2) Equal Pay Legislation Ramps Up
Pay equality is on the march. Continuing a trend that began in 2016, we saw a lot of activity this year around equal pay. Approximately 100 bills were introduced this year, in more than 40 jurisdictions. Most legislation centered around three major actions: expanding existing equal pay regulations, banning questions about salary history, and increasing transparency around pay. The trend is likely to continue next year, including on the federal level, where the Equal Employment Opportunity Commission (EEOC) has made “Ensuring Equal Pay for All Workers” one of its top six priorities moving forward.
(3) Workplace Sexual Harassment in the Current Climate
Sexual harassment scandals in the entertainment, news, and political spheres were at the forefront this year, and the “#MeToo” movement made clear just how universal the problem is. Employers that fail to take affirmative steps to prevent harassing behavior or respond to allegations of harassment risk exposure to EEOC charges or litigation. Recent studies indicate that less than a quarter of employers have reevaluated the risks of sexism or harassing behavior in light of recent revelations in the media, but we expect those numbers to grow in 2018.
(4) Cybersecurity Evaluation
There are increasing threats to cybersecurity. The year 2017 brought us the Equifax security breach, one of the worst data thefts in history. Data security has never been more important, or challenging, to address. Some vulnerabilities that employers should consider are the lack of stringent remote access management, a failure to regularly assess risks, and the absence of an insider threat program, since most data breaches come from employees or trusted third parties.
(5) Big Changes for Wage & Hour
Labor Secretary Acosta has withdrawn the joint-employer and independent contractor guidance and has announced a return to the practice of issuing opinion letters. The Department of Labor was enjoined from enforcing new regulations more than doubling the minimum salary for white-collar overtime exemptions before the regulations were finally withdrawn. Acosta has also proposed rescinding some limitations on tip pooling. And the stage is set for even more changes in 2018. Paul DeCamp, from Epstein Becker Green, tells us what we’re likely to see in the coming months:
“In 2018, I think employers are going to get some answers to a number of the questions that were raised in 2017. We're going to see a decision from the Supreme Court on the enforceability of these class waivers in arbitration agreements. We will get clarity, almost certainly, on the issue of what will be the salary threshold for the executive, administrative, and professional exemptions, and then we're also going to see where exactly is the Department of Labor going in its enforcement policy, in terms of how it handles investigations, imposes penalties, seeks liquidated damages, and that sort of thing. So we're going to see more guidance about where the Department will be in its enforcement.”
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