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Trends to Watch in Employment Law

By Net Assets posted 04-17-2018 11:31 AM

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Human Resources |

Article by Grace H. Lee

Several areas of employment law that impact independent schools are currently in flux due to pending legislation and court cases. Legal experts at the 2018 SHRM Employment Law and Legislative Conference held March 12-14, 2018, in Washington, D.C., discussed the latest on paid leave, work hours, overtime pay and joint employer standards among other matters. Additional developments to watch include a new DOL program to self-correct FLSA and overtime mistakes as well as pay equity laws and increased attention to sexual harassment in the wake of the #MeToo movement.

 Highlights from the conference:

Proposed legislation could impact paid leave and work hours:

  • The Healthy Families Act would require employers with 15 or more employees to provide up to 56 hours of paid sick leave.
  • The Family Act would create a paid family leave insurance fund through payroll tax to provide partial wage replacement for FMLA-qualifying events.
  • The Workflex in the 21st Century Act would expand paid leave and workplace flexibility by allowing employers to offer a minimum threshold of paid leave and a flexible work option that complies with both state and local paid leave law. Employers would have to offer every eligible employee a flexible work arrangement, which could include a compressed work-week schedule, telecommuting program, job-sharing program, flexible scheduling or predictable scheduling.
  • The Legal Workforce Act would require all employers to use E-Verify instead of paper I-9 forms.

While the Obama-era overtime rules may have stalled indefinitely, the DOL regulatory calendar has set October 2018 as the publication date for a new rule (the DOL issued a Request for Information in July 2017). The October date may not be met, however, unless Cheryl Stanton is confirmed as the Wage and Hour Administrator before then. In addition, the notice will have a 60-to-90 day comment period, making it unlikely that a final rule will be issued this year. The new regulations will likely include a higher salary threshold in the low $30,000s, different regional salary thresholds and automatic increases.

In March, the DOL announced the Payroll Audit Independent Determination (PAID) program. It encourages employers to voluntarily uncover violations of FLSA’s overtime and minimum wage requirements and will be tested for a six-month pilot starting in April. Under PAID, the employer is obligated to conduct a self-audit, correct issues going forward, and pay back wages in exchange for waiver forms and a commitment from DOL that there will be no liquidated damages or civil money penalties. The PAID program is not available to employers with existing DOL investigations, when private litigation has already been threatened or filed, or if the employer has a history of violations. PAID will not address state wage and hour violations.

Pay equity has gained momentum, leading to new standards of best practice. The latest pay gap statistics show that for every $1.00 paid to men, women are paid 80 cents, African-American women are paid 63 cents, and Hispanic women are paid 54 cents. A growing number of state and local governments have passed aggressive pay equity laws that sometimes differ and even contradict each other, and the U.S. Court of Appeals for the Ninth Circuit has ruled that salary history does not justify salary gaps

Industry experts advise that if employers are still asking for salary history, they should stop immediately. Asking for salary history perpetuates the pay gap from employer to employer. Eight states have passed salary history bans and 13more have proposed similar laws. Instead of asking for salary history, one emerging best practice is to ask for salary expectations. Employers are encouraged to take proactive measures and conduct a pay equity analysis, determine which pay gaps can be explained with legitimate business reasons, and make adjustments over time to reduce the gap. 

Joint-employer standards are in flux. The NLRB recently issued a decision to overturn a prior ruling that expanded the definition of a joint employer. That decision was vacated, however, as a result of an Inspector General report on potential conflicts of interest involving an NLRB member. As a result, for now, employers must follow the broader interpretation of joint employer, making it easier for an employee of a vendor to bring a claim of employment law violations against both the school and the vendor. The case is  back on appeal in the D.C. Circuit.

Several speakers at the conference addressed the #MeToo movement and the need for effective organizational culture and policies to create workplaces free of harassment. Recommendations for employers include effective harassment prevention training that conveys a clear message of open communication and protection against retaliation for those who come forward. Training should also include bystander reporting obligations to make it easier for victims to report wrongdoing.

Grace Lee is NBOA’s vice president, legal affairs.


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