Ready or Not, Here It Comes! 2018 Brings New Labor & Employment Laws for the U.S.

As we prepare to turn the calendar to 2018, U.S. employers look ahead to the next wave of labor and employment regulations. On January 1, 2018, and throughout the coming year, employers across the nation will confront a host of new or amended federal, state, and/or local laws. This article summarizes impending obligations that may flow from these law changes in the chart below and also highlights some anticipated activity.

Ongoing Federal Activity

At this time last year, employers faced uncertainty about how the Trump administration and Congress might alter federal labor, employment and benefits obligations. Although change to federal workplace policy has not come as quickly as many expected, the pace of change is likely to accelerate as nominations and appointments to critical positions are filled. Indeed, action on the nominations to the National Labor Relations Board (NLRB), Equal Employment Opportunity Commission (EEOC), and Department of Labor (DOL) signals that expected changes in workplace policy will be forthcoming in the year ahead.1

With that in mind, employers should pay particular attention in 2018 to several potential developments at the federal level, including possible additional changes in immigration law and enforcement.2 Health care policy, including the viability of the Affordable Care Act (ACA), also remains in flux. After Republicans failed to “repeal and replace” the ACA through the legislative process, the White House issued an executive order to try to reform the nation’s healthcare system through regulatory channels.3 Meanwhile, efforts to revamp the tax code are well underway in Congress, some aspects of which would have a significant impact on benefits and executive compensation, but are far from settled.

Employers saw some changes in 2017 on several key labor and employment issues, and 2018 is likely to bring further federal legislative and/or administrative developments in these areas. For example, in 2018 the DOL is expected to revisit the now-scuttled update to FLSA overtime regulations. The agency's Wage and Hour Division will likely engage in further rulemaking to decide what the new salary level should be for overtime purposes. In June, Labor Secretary Alexander Acosta announced the withdrawal of two controversial Wage and Hour Administrator's Interpretations on independent contractors and joint employment.

Relatedly, in Congress, House Republicans passed a bill in 2017, entitled the Save Local Business Act (H.R. 3441), that would amend two labor and employment statutes to clarify when an entity can be deemed a “joint employer.”4 The bill moves now to the Senate, where its fate is less certain. In the face of an increasingly complex maze of state and local paid leave laws, lawmakers in Congress are proposing a novel approach to paid leave and workplace flexibility. In an effort to promote workplace flexibility and streamline employer paid leave obligations nationwide, Representative Mimi Walters (R-CA) House introduced the Workflex in the 21st Century Act (HR 4219). This bill would create a voluntary program whereby employers that choose to offer their employees a minimum number of compensable leave days per year and institute a flexible work arrangement would be exempt from the current patchwork of local and state paid leave laws.5 This legislation could clarify and simplify compliance burdens on employers across the nation.

Ongoing State and Local Activity

Of course, they say that “all politics is local,” and 2017 did not disprove that theory. Given the lingering gridlock in Congress, the most significant labor and employment developments taking effect in 2018 arose at the state and municipal levels. As the chart below demonstrates, municipalities have paved the way for new regulation on a variety of topics, including protected or paid time off, pregnancy accommodations, background checks, and equal pay.

Many new state and local laws enacted in 2017 have already taken effect. The chart below focuses only on those laws that are set to take effect in the new year and beyond. Readers interested in keeping abreast of legislative activity at the state and local levels should follow State of the States, our monthly report featuring notable bills and trends percolating in the statehouses and city halls nationwide.6

Laws Taking Effect in 2018

As the year winds down, employers should prepare for changes scheduled to take effect in 2018. The chart below briefly recaps laws and regulations that will become operative sometime in 2018. (We’ve included a few late bloomers from 2017 as well, and a sneak peek at 2019.) Although local and industry-specific laws may be listed, these samples are included primarily to highlight compliance challenges employers face. In addition, not all state and local minimum wage laws are included in this article. A complete discussion of minimum wage rate changes for 2018 can be found in a separate Littler Insight, The Minimum Wage in 2018: A Rates-Only Update. Because the below list does not cover every possibly applicable federal, state, and local law, employers may find it helpful to discuss with knowledgeable counsel which local, state, and/or federal laws will apply in 2018.

Click here to read more and to see the chart which briefly recaps laws and regulations that will become operative sometime in 2018.

Article Spotted By: Alison Peters

Article Written By: Ilyse Schuman, Michael J. Lotito and Betsy Cammarata  

Article Originally Published November 13, 2017 on Littler Insight

6 Benefit Issues for Employers to Address in the Wake of Natural Disaster

As Florida and the East Coast assess damage from Hurricane Irma, employers should be prepared to address storm-related issues. Those who are required to close their businesses need to determine whether they need to pay workers who stay home — which puts those employers on the hook for unemployment compensation — and whether workers’ compensation applies to weather-related injuries.

Here are six questions employers may have — and answers — about how the hurricane will continue to affect their operations.

1) Does the Fair Labor Standards Act require me to pay employees who miss work because of the weather?

The answer to this question depends on whether the employee is exempt or non-exempt.

Exempt employees: If the business closes because of the weather, the FLSA requires employers to pay an exempt employee his or her regular salary for any shutdown that lasts less than a week. Under the FLSA, an employer cannot deduct an exempt employee’s pay based on the quantity or quality of the employee's work or when he or she is ready, willing and able to work but no work is available. Thus, deducting an exempt employee’s pay for absences due to a business closing that lasts for less than a week would jeopardize the employee's exempt status. A private employer may, however, deduct the period of absence from the employee's paid vacation or paid time off, as long as the employee receives his or her full salary for the week.

If the business remains open but an employee cannot get to work because of the weather, an employer can deduct an exempt employee’s salary for a full day’s absence. Under the FLSA, an employer can deduct an exempt employee’s pay for a full-day absence taken for personal reasons without jeopardizing the employee’s exempt status. Employers cannot, however, deduct an exempt employee’s salary for less than a full-day absence without jeopardizing the employee’s exempt status.

Nonexempt employees: Under the FLSA, employers generally are not required to pay nonexempt employees for any days that the employee does not perform any actual work. Thus, employers are not required to pay employees for days they did not come to work or for days when the business was closed because of a weather event. This does not apply to nonexempt employees who are paid on a fluctuating workweek basis. These employees must be paid their full weekly salary for any week during which any work is performed, even if they miss some work due to the storm.

State reporting pay requirements: Be aware that some states have reporting pay or “show-up” pay requirements that require employers to pay a minimum amount to employees who show up for work even if they do not perform any work. Employers should familiarize themselves with the requirements of these state laws. Additionally, collective bargaining agreements may require employers to pay employees for a guaranteed minimum number of work hours regardless of the number of hours actually worked.

2) May I count absences due to the storm against an employee’s Family and Medical Leave Act allotment?

Although the FMLA regulations do not specifically address natural disasters, the regulations state that if, for some reason, the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. Thus, it appears that if an employer’s business is closed for a week or more because of the storm, the days the business is closed would not count against an employee’s FMLA leave allotment.

If the business is closed for less than a week, the FMLA’s regulation pertaining to holidays likely would apply. The FMLA regulation provides, “the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.” Similarly, if a business is closed for a day or more during a week in which an employee is on FMLA leave, the entire week would count against the employee's FMLA leave allotment. If, however, the employee is taking FMLA leave in increments of less than a week, only the days that the business is closed and on which the employee would be expected to work can be counted against the employee’s FMLA allotment.

3) Am I required to pay an employee for on-call time?

Under the FLSA, if the employer requires an employee to be on-call while the office is closed due to a weather emergency and the employee cannot effectively use the time for his or her own purposes, the employer must pay the employee for the on-call time. Employers are not required to pay employees who are at home and available to the employer but able to use the time for their own purposes. State laws may impose different or more stringent requirements for on-call time.

4) Are employees who are discharged as a result of the storm entitled to unemployment compensation?

Employees who are out of work for reasons other than their own misconduct generally are entitled to unemployment compensation as long as they have met the requirements of the state’s unemployment compensation laws. In some states, an employer’s unemployment compensation account is not charged when an employee is discharged because of a natural disaster. Employers should check the laws of the states in which they do business.

5) Are workers’ compensation claims the exclusive remedy for employees who are injured at work due to conditions that resulted from a tropical storm or hurricane?

Generally, employees who are injured during the course and scope of employment are limited to workers' compensation claims and cannot sue the employer in court over the injuries. If, however, the injuries are the result of an employer’s deliberate or intentional conduct rather than an accident, the employee may have the ability to sue the employer in state court. Employers should check the laws of the states in which they do business.

6) What steps can I take to ensure my employees’ safety upon their return to work?

The Occupational Safety and Health Administration (OSHA) states that employers are responsible for providing a safe and healthful workplace for their employees. Employers are required to protect workers from the anticipated hazards associated with the response and recovery operations that workers are likely to conduct. OSHA’s response/recovery page features a link to OSHA’s Hurricane eMatrix, which outlines the activities most commonly performed during hurricane response and recovery work and provides detailed information about the hazards associated with those activities. The eMatrix is designed to help employers make decisions to protect workers and offers recommendations for personal protective equipment, safe work practices and precautions for each activity.

Article Written by: Salvador P. Simao
Article Originally Posted in: Employee Benefits Adviser, September 12, 2017
Article Spotted by: Alison Peters

What One Company Learned from Forcing Employees to Use Their Vacation Time

Have you ever felt burned out at work after a vacation? I’m not talking about being exhausted from fighting with your family at Walt Disney World all week. I’m talking about how you knew, the whole time walking around Epcot, that a world of work was waiting for you upon your return.

Our vacation systems are completely broken. They don’t work.

The classic corporate vacation system goes something like this: You get a set number of vacation days a year (often only two to three weeks), you fill out some 1996-era form to apply for time off, you get your boss’s signature, and then you file it with a team assistant or log it in some terrible database. It’s an administrative headache. Then most people have to frantically cram extra work into the week(s) before they leave for vacation in order to actually extract themselves from the office. By the time we finally turn on our out-of-office messages, we’re beyond stressed, and we know that we’ll have an even bigger pile of work waiting for us when we return. What a nightmare.

For most of us, it’s hard to actually use vacation time to recharge. So it’s no wonder that absenteeism remains a massive problem for most companies, with payrolls dotted with sick leaves, disability leaves, and stress leaves. In the UK, the Department for Work and Pensions says that absenteeism costs the country’s economy more than £100 billion per year. A white paper published by the Workforce Institute and produced by Circadian, a workforce solutions company, calls absenteeism a bottom-line killer that costs employers $3,600 per hourly employee and $2,650 per salaried employee per year. It doesn’t help that, according to the Center for Economic and Policy Research, the United States is the only country out of 21 wealthy countries that doesn’t require employers to offer paid vacation time. (Check out this world map on Wikipedia to see where your country stacks up.)

Would it help if we got more paid vacation? Not necessarily. According to a study from the U.S. Travel Association and GfK, a market research firm, just over 40% of Americans plan not to use all their paid time off anyway.

So what’s the progressive approach?

Click here to learn more...

Article Written by: Neil Pasricha & Shashank Nigam
Article Published On: Harvard Business Review, August 11, 2017
Article Spotted by: Alison Peters

Unlimited Vacation Policy? What You Should Know

Like an increasing number of employers these days, your workplace may offer a flexible or "unlimited" vacation policy. The idea: You're free to take as much time off as you choose, as long as you get the job done. It's a focus on producing great results, rather than just putting in the hours.

At my company, ZenPayroll, we feel that our flexible vacation policy helps build an ownership mentality. We want our employees to think like owners and consider what's best for both themselves and the company. Letting them figure out their own vacation time shows that we trust and respect them, which in turn strengthens their commitment to the company.

Other businesses are finding similar benefits. Netflix, for instance, lets its salaried employees take as much time off as they want—and nobody, including managers or employees, tracks it. "We should focus on what people get done, not how many hours or days worked," the company said in a slideshow called "Freedom & Responsibility Culture."

From an employee perspective, however, figuring out how to use your company's flexible vacation policy may be challenging. How can you maximize this great perk your company offers without giving your managers or teammates the impression you're abusing it?

Here are some guidelines to help.

Article Spotted By: Alison Peters
Article Written By: Joshua Reeves
Article Published On: The Muse

Want to know more about Unlimited PTO? 

Join HR Options' webinar on July 20th, where employment law specialist Jeanine DeBacker will take a deeper dive into popular Unlimited PTO programs - and how your company can implement and manage them. Register now!

Canada: The Potential Pitfalls Of Fixed-Term Employment Contracts

Article spotted by Alison Peters
Original article by Terra Welsh, Thompson Dorfman Sweatman LLP

Originally published October 19 2016 via  Mondaq Newsletter

On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination – after only 23 months of employment.

The employee in question had a written contract with a five-year term. The employer terminated the employee's employment 23 months into the contract, without alleging cause. The employer's right to early termination without cause was governed by the following provision:

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