With the new year less than one month away, the compliance countdown for new laws has begun. Limited time remains in 2015 for employers to ensure policies and practices are developed or revised to meet 2016 obligations. Time is of the essence, particularly as key management personnel are more likely to be absent this time of year because of upcoming holidays and planned vacations. Companies must make the most of what remains of 2015 to ensure they are prepared when they ring in 2016. To assist with this process, we have identified key labor and employment laws that will take effect in 2016 and impact employer operations throughout the country.
Federal legislative developments generally remain a nostalgic concept, as Congress stayed politically incapacitated. The only significant action at the federal level occurred via agency rulemaking, guidelines, and administrative decisions.
In 2015, the bulk of changes occurred at the state and local levels. The total number of generally applicable state labor and employment laws decreased from the number enacted in 2014. The proportion of labor- and employment-related bills enacted at the local level, however, increased. These laws covered a wide spectrum of subjects that have either already taken effect or will take effect in 2016. Popular topics covered at the state and local levels include 1) minimum wage; 2) paid sick leave; 3) pregnancy accommodation; 4) equal pay; 5) veterans hiring preference; 6) social media privacy; and 7) wage disclosure protections.
Efforts to increase the minimum wage show no signs of abating. This has been a bottom-up movement, with an ever-expanding list of localities enacting standards exceeding those in place at the federal and state levels. This push has, in certain instances, caused some states to enact laws preventing cities from doing so.
Paid sick leave is another development that has occurred primarily at the local level, as a federal mandate remains stalled in Congress. Although the number of local jurisdictions with applicable laws continues to exceed the number of state-level laws, the issue gained national attention when President Obama issued an Executive Order requiring that such benefits be provided to certain federal contractors’ employees in 2017.
Lawmakers at the state and local levels also strengthened workplace protections for women. Many laws were enacted to eliminate pay disparities based on sex, and/or provide increased protections to pregnant workers. A handful of laws, for example, require employers to provide reasonable accommodation for conditions relating to pregnancy and childbirth. Included within some of these laws are workplace protections for employees who ask about, discuss, or disclose their wages to their coworkers. Some of these “wage transparency” protections were instituted as standalone measures.
Social media privacy was another popular issue in 2015, with six states enacting bills that limit an employer’s access to an employee’s social media account or password. All but one of these laws have already taken effect.
In addition, laws intended to help veterans have been enacted in an increasing number of states. These measures allow employers to institute policies that provide veterans hiring and promotion preferences without running afoul of fair employment practices laws. The number of states and localities with “ban-the-box” laws prohibiting employers from asking applicants about criminal history also increased.
The vast majority of laws enacted in 2015 have already taken effect. Below we highlight major federal and state laws that take effect in 2016 that will generally impact employer operations throughout the United States.1 Additionally, we have included a sample of local obligations that will arise next year. Although we have also included some industry-specific laws, these are included solely to highlight an employer’s complex task of keeping track of federal, state, local, and industry-specific obligations. This list is non-exhaustive, so employers are encouraged to consult with knowledgeable counsel to determine which local, state, and/or federal challenges await them in 2016.
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The coming election year promises to be eventful. Although federal labor and employment laws are unlikely to be enacted in 2016, lawmakers from both sides of the aisle will continue to introduce “message” bills that have little chance of passage, but serve as campaign trail fodder. Meanwhile, the effects of the most significant law in recent memory—the Affordable Care Act—will continue to be felt in 2016.24 Because of the congressional gridlock, however, employers can expect most legislative advancement to continue to occur at the state and local levels.
In addition, the latest regulatory agenda released by the federal agencies indicates that employers can expect important new rulemakings to be finalized in the next and final year of the Obama Administration. With projected completion of new regulations on the white collar overtime exemptions, “Fair Pay and Safe Workplaces” Executive Order, NLRB persuader rule, and OSHA silica standard, among others, employers could face significant burdens in the year ahead. Although the regulatory agenda and timeline is subject to change, employers should prepare for these changes.25