Edward Harold, BridgeTower Media Newswires
With Congress solidly divided in Washington, D.C., it’s unlikely that we’ll see any major legislative changes to the laws governing the employment relationship in 2020. But that does not mean there will be no changes at all: New statutes coming from lawmakers are but a small part of government regulation of employment.
Particularly at the federal level, regulations pertaining to each of the major employment laws dwarf the actual laws in word count. They are the purview of the executive branch, and these rules changes are where we expect see the greatest changes over the upcoming year. Since the beginning of the Trump administration, federal agencies have been busy repealing, redefining or rewriting a host of regulations, and this trend will continue in 2020.
The Wage and Hour Division of the U.S. Department of Labor regulates and enforces compliance with the Fair Labor Standards Act (FLSA). It has recently been trying to update some of its guidance to reflect aspects of the current economy that simply did not exist when the guidance was issued. For example, it added several modern fringe benefits that employers now provide (such as gym memberships) to the list of benefits that do not have to be included as part of the employees’ pay when calculating overtime, and we can expect to see similar revisions in 2020. The only major change we foresee taking place is an increase in the amount of salary an employee must be paid in order to be considered exempt from overtime from its current rate of $455 per week to $684 per week, or $35,568 per year.
The more significant activity we expect to see related to the FLSA is an increase in litigation. Because the FLSA is complex, it is easy for employers to make mistakes. Employers are strictly liable for these mistakes and plaintiffs can be entitled to back pay, liquidated damages and their attorneys’ fees because of them. While individual claims under the FLSA are generally small, the liability can become quite large when these cases are brought on behalf of other employees.
The Equal Employment Opportunity Commission regulates a variety of laws prohibiting workplace discrimination, including Title VII (race, gender, color, national origin and religion), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), among others. In 2020, we expect the EEOC to continue its focus on the ADA. Particularly, it is examining employer policies on job qualifications to determine if individuals with disabilities are being unlawfully excluded from jobs they are capable of performing. The EEOC is also heavily scrutinizing inflexible leave policies, as employees who may require leave in excess of the hardline policy might have be eligible for a reasonable accommodation under the ADA.
The EEOC will also continue its focus on issues of pregnancy discrimination. The agency takes the position that employees who have restrictions based on their pregnancy must be treated the same as employees who have physical restrictions based on non-pregnancy conditions. Thus, if you allow light-duty assignments for employees who cannot do their job as a result of workplace injury, the EEOC would say the same benefit must be provided to pregnant employees.
One area that should gain some clarity this year is whether Title VII’s prohibition on discrimination on account of sex protects individuals from workplace discrimination based on sexual orientation. A few years ago, the EEOC first took the position that Title VII covered sexual orientation discrimination. Since that time, several federal appellate courts have reached conflicting decisions on the issue, some agreeing with the EEOC and some refusing the broader interpretation. The U.S. Supreme Court has three cases before it in the current term that involve workers alleging they were discriminated against on account of their sexual orientation. It is very likely the result of these combined cases will decide the issue one way or another.
Whichever position the Supreme Court chooses, the only way to change its result would be for Congress to take action. If the Court declines to extend sexual orientation discrimination to Title VII’s coverage, there appears to be growing consensus for a bipartisan federal solution that would provide workplace rights for LGBT employees.
The National Labor Relations Board (NLRB) regulates federal laws pertaining to the unionization of employees in the private sector. Private-sector union membership has been in decline for years. The Obama administration enacted several regulatory changes designed to counter this trend. The most controversial of those was what became known as the “quickie election rules.”
In order to become represented by a union, a workforce files a petition seeking representation. Then all the employees who will be covered by the union participate in a secret ballot election as to whether they want union representation. The timing between the filing of the petition and the election is generally the only time the employer has to tell its side of the story to employees. Meanwhile, the union has likely been engaged with the employees for months prior to the filing of the petition. By cutting down the time period between the petition and the election, the Obama administration hoped to diminish employers’ ability to combat union recognition. Following the implementation of the quickie election rule, union wins in elections rose slightly.
We expect 2020 to continue the path undertaken by the Trump NLRB to restore balance to agency doctrine that had pivoted toward organized labor under the prior administration. For example, the newly constituted NLRB recently revised the rule governing the timing of union elections. Published in late December, the new rule will take effect in April 2020. It will extend the time periods for all the pre-election administrative procedures deadlines and will likely add back the little more than two weeks of time that the Obama administration rule had reduced the period by. Among the other developments we can expect in the coming year are increased latitude toward workplace rules governing employee misconduct and a reversal of controversial precedent governing use of electronic communication systems during non-working time.
The Occupational Safety and Health Review Commission is responsible for the OSHA Act, the federal law regulating employee health and safety. Over the course of the last decade, OSHA has had to expend significant resources addressing the issues posed by drugs in the workplace. Both the legalization of marijuana as well as the opioid epidemic are at the forefront of the safety and health field. As a result, employers must revisit every aspect of their drug and alcohol policies to address the problem, including their testing regimens, their counseling services and their educational offerings to employees.
Generally, municipalities around the country have focused on minimum wage, leave policies, scheduling policies, ban-the-box policies and questions about prior salary history. It is unclear, however, whether municipalities can legislate in these other areas.
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Edward Harold is regional managing partner in the New Orleans office of Fisher Phillips, focusing on employment litigation in state and federal courts.
