With a change in administration, we could see significant movement in the Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB). Already, on the local and state levels, there has been legislative activity with respect to workplace issues. As such, 2017 could be full of surprises, but we anticipate these 4 issues are worth our attention.
Issue #1: Rise in Gender Discrimination Issues/Complaints
Earlier this year, the Atlantic featured an article, The Revolt of Working Parents which focused on what is being dubbed as the "Maternal Wall" or the "New Glass Ceiling" referencing gender discrimination on the basis of parental responsibilities. The article cited that caregiver lawsuits have tripled during the last decade with more than half of those lawsuits resulting in compensation. We also saw New York City, in May 2016, put into place the New York City Human Rights Law, prohibiting employers from treating employees and applicants with caregiving responsibilities differently than other employees. As more than 20 states already have pending parental leave legislation, we could see even more activity in 2017 on this issue.
LGBT discrimination claims are also on the rise. In FY2016, there were 1,650 LGBT complaints filed with the EEOC, including significant increases in monetary awards for these complaints. As this is an unsettled area for the current administration, we could see more activity in 2017 to shape this area of sexual orientation.
Issue #2: Social Media Activity by Employees
Now is a good time to review your policies regarding how your employees interact on social media. In 2016, the National Labor Relations Board took a fairly broad stance on social media activity being a "protected concerted activity" for employees - even non-union employees. This places employers in a precarious position regarding enforcement of their social media policies. If you've followed the Chipotle decision, the NLRB ruled that Chipotle's social media conduct policy, which prohibited employees from making disparaging, false or misleading statements, was protected conduct under the NLRA. With the appointment of Philip Miscimarra as NLRB Chairman, we could see changes to this over-reaching stance.
Issue #3: OSHA
Much controversy came in 2016 when the Occupational Safety and Health Administration (OSHA) issued interim guidelines to its administrators regarding the enforcement of the new record keeping requirements. The new rule clarified that not only must an employer establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately, but that the procedure would be deemed as unreasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. Essentially, this meant employers had to discontinue their incentive/award programs for being "accident-free" as this would deter employees from reporting illness or accidents. Drug testing for accidents and injuries was also impacted.
Further complicating matters, OSHA has now delayed enforcement of the electronic record keeping provision. This would have required employers to electronically submit their worker injury and illness data, which would then be made public on OSHA's website. A lawsuit filed against this rule by the National Association of Home Builders, the U.S. Chambers of Commerce, National Turkey Federation, National Chicken Council, the U.S. Poultry and Egg Association among others is currently pending.
This rule will be a hotbed of activity throughout most of 2017.
Issue #4: Overtime and Compensatory Time
Two issues are at play here: changes to the overtime threshold and the addition of compensatory time to the private sector. Both should be watched carefully.
As many of you have been following, the Department of Labor's increase in the minimum threshold weekly amount from $455 to $913, under the Administrative Exemption test, has been blocked by the United States District Court for the Eastern District of Texas. This new rule would have affected more than 4 million workers by making these employees eligible for overtime unless they made more than $47,476 per year. The DOL issued an FAQ explaining options available for employers, however costly.
Compensatory time has been proposed for the private sector and is supported by many key establishments, including the Society for Human Resource Management (SHRM). H.R. 1180, the Working Families Flexibility Act of 2017, passed the House, but is pending in the Senate. If signed by President Trump, employees would have the option of being paid overtime or accruing compensatory time. This is another human resource area that we're closely watching.