They say the future tends to repeat the past. When it comes to employment compliance, this may be especially true.
With the exception of the laws and regulations applicable to federal contractors, not much changed on the federal employment law landscape (except by some case decisions). Rather, most of the changes with respect to workplace rules and regulations occurred at the state level.
Among the new state laws in 2015 that affected employers were:
- The imposition of paid sick leaves in various states and municipalities
- The express requirement to accommodate employee pregnancy needs
- The protection of employee social media privacy
- Increased and expanded requirements with respect to wage disclosures
- The ongoing expansion of “ban the box” legislation, as it relates to employment applications
So, what can we expect for 2016? We can expect further state law expansion of paid sick and parental leaves, additional expansion of “ban the box” rules and regulations, and additional increases in minimum wage limits as most states head toward a $10/hour requirement over time. However, while we continue to expect most changes to occur at the state and local level, there is at least one significant federal change expected for 2016: the increased salary required for maintenance of the Fair Labor Standards Act white collar exemptions.
What does all this mean for you the employer?
First,you must know your state and local laws, and stay vigilant with respect to ongoing developments. If you have operations in multiple states, ask about developments in each state and be cognizant of conflicts between state laws.
Second, be prepared for mandatory paid sick and other forms of leave. To this end, you may wish to consider implementing a paid sick or other leave program now, as most state and local legislation that mandates paid time off (for illness, parenting requirements, and the like) allows employers to take advantage of their own implemented programs (in other words, if you are already providing what the law would require, you are covered).
Third, it may be time to modify your employment application as it relates to inquiries with respect to criminal background history. Although there is no federal “ban-the-box” law in place, the Equal Employment Opportunity Commission(EEOC) has long taken theposition that inquiries into an applicant’s criminal history have a disparate impact on minorities and are, therefore, a discriminatory practice.
Additionally, the president recently directed the Office of Personnel Management(OPM) to take action in the hiring process for federal employees by banning the inquiry into criminal history until later in the process. With the expanding state and local legislation banning inquiries into an applicant’s criminal history, employers are better served limiting these inquiries to those safety or other positions where an applicant’s criminal history has a direct correlation to his or her qualification for the position at issue, and making these inquiries only later in the hiring process.
Fourth, and finally, start budgeting now for increasing minimum wage requirements (at the various state levels) and the likely implementation of the modified salary requirements for exempt status. The Department of Labor Wage and Hour Division is expected to publish the final regulations modifying the minimum salary requirement in June or July 2016. As such, employers can expect the higher salary requirement to take effect in late 2016, unless litigation somehow puts a hold on implementation. The salary increase will be significant (the minimum salary to maintain the exemption is estimated to be $50,440 in 2016).