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Apr 28, 2015

A clear pattern is emerging, and perhaps you already see it.

New legislation, greater enforcement, high-profile court cases and shifting policies and attitudes about new technology has led us to dub 2015 as “The Year of the Employee” in terms of winning new rights, garnering enhanced benefits and filing more lawsuits against employers.

Many years ago, unions were necessary to protect the safety of their membership. As those workplace safety issues mitigated, and union membership steadily declined, Federal and State governments have stepped into the role of “workplace protector” and have really turned up the heat on businesses lately.

These new laws and new policy shifts have done more to propel employee rights in the last year than in the last five or 10 years!

New legislation contributing to Year of the Employee

Health care reform (the Affordable Care Act) is the single biggest example. Companies with 100 or more full-time equivalent employees must provide health insurance to their employees. In 2016, this will be pushed downstream to businesses with 50-99 employees.

In addition to health care, all eyes are focused on several court cases surrounding pregnancy discrimination and accommodation. It is very likely that businesses of all sizes will need to be sensitive to accommodations and treatment of workers.

Massachusetts has been extremely active in the legal area, leading the charge with a slew of new worker protections, including a minimum wage hike, sick leave (impacting businesses of all sizes), domestic violence leave, parental leave expansion (effective April 7, 2015), among other pending legislation.

Wage enforcement in the Year of the Employee

Add to this list some high-profile wage and hour violations as a result of forcing employees to work off the clock, failure to pay overtime, inappropriate tip sharing and other issues (see case about a Korean restaurant in New York).

We also expect that rules for overtime eligibility will change dramatically over the next year. The U.S. Department of Labor will soon issue new guidance on the Fair Labor Standard Act’s exemption rules, determining which employees can be paid on a salary basis without overtime.

Massachusetts’ new Attorney General, Maura Healey, will be no shrinking violet and many in the business community suspect she will come at wage and hour violations, and the new sick leave law, with a vengeance for enforcement.

Employers should recognize that filing complaints is easier than ever with websites. Class action cases are quickly becoming the norm and employment related lawsuits increased over 400 percent since the 1990’s.

Social media liberties are also contributing

Recently, a court case (an NLRB ruling) protected an employee for posting vulgar and obscene comments on Facebook against a supervisor and his family! It is becoming increasingly difficult to determine what is a fireable offense, and what must be accepted as protected speech.

Gone are the days when you can require an employee to provide you with their social media passwords. Language forbidding negative talk about the company, employees or supervisors in your employee handbook is facing an uphill battle.

Marijuana laws putting companies in a bind

Many companies perform random drug tests for their operations. In states where stores and possession is legal, this posed a grey area for THC testing.

Watch for court action on wrongful termination from drug tests and approved medical use.

Sexual discrimination complaints gaining steam

Experts say the outcomes of three gender-bias lawsuits filed in Silicon Valley could affect HR organizations across the country.

In California, sexual discrimination complaints have soared 61 percent from 2011 to 2014. The court cases have mainly focused on big name companies, while smaller case have gone to mediation, but some new laws may come out of these cases.

Religious discrimination and accommodation

Companies needs to be very sensitive to religious wear (i.e. head scarves) during the interviewing process and in managing their workforces.

Retailer Abercrombie & Fitch is in the middle of a Supreme Court case on this very topic.

Employee scheduling laws may develop

Think the government won’t interfere with scheduling employees? Wrong.

The practice of “Clopening,” where employees are scheduled to close the business and then return early to open the business (having little rest in between) is gaining legislation steam as an unfair labor practice.

Another related government initiative is looking into last-minute scheduling. Many retailers and other similar establishments have instituted “on-call” scheduling for much of their staff. Various government entities are investigating these practices and new legislation could be on its way.

One rumor floating around is that employers could be forced to issue employee schedules 21 days in advance!

New York’s Attorney General is currently scrutinizing 13 large retailers for their staffing practices. Watch for guidance and potentially a new round of laws to set minimum employee “rest periods.”

5 things you can do to protect your business

Collectively, this is really shaping into “the Year of the Employee.”  Your risk as a business for lawsuits, fines and penalties has never been greater!

But there are ways for you to plan ahead, and start reviewing areas that are hotspots within your organization to reduce your risk.

1. Understand and meet your obligations under ACA

Begin looking at your plans and work with your brokers to ensure that your plans are affordable and do not put you into the “cadillac tax” category.

Ensure that you have an adequate means to record and calculate work hours for employees. Manual calculations will make it much harder. Consider implementing a Time & Attendance solution.

New reporting requirements, 1095-B and 1094-C, will need to be calculated and submitted for ALE’s in 2016. Consider an HCM solution like iSolved HCM to automatically populate these forms.

Request our ACA whitepaper and other materials to read up on ACA and your responsibilities.

2. Revise/revamp job descriptions

The job description has been a central point in many legal cases lately, and MassPay has been recommending that businesses take a closer look at each job description in order to avoid potential trouble.

Hot spots that cause legal issues include vagueness and discriminatory requirements that serve to exclude a specific group or class of workers.

3. Identify potential wage/hour violations

The Economic Policy Institute estimates that employees lose $50 billion annually to wage theft (big number that invites enforcement). Some of the most common and visible violations include:

  • Paying below minimum wage;
  • Diverting tip money;
  • Refusing to pay overtime;
  • Not getting tips on credit cards;
  • Improper records of work hours;
  • Working off the clock;
  • Not posting information on worker rights.

In this day and age, technology can be both a great tool as well as a huge liability for businesses. Allowing non-exempt employees to access email or other work-related content via smart phones and tablets can create catastrophic wage and hour violations for an employer.

4. Update your employee handbook

Vague policies, as well as missing policies, such as an inclement weather policy or a BYOD (Bring Your Own Device) policy, can lead to confusion, misinterpretation and risk of legal action if corporate policy is not clearly documented and updated to keep up with changing workforce issues.

Should a company be faced with a wrongful termination or other employment lawsuit, a court will typically refer to the employee handbook and related policies as an initial step in the case.

5. Automate your HR & payroll processes

Using HR technology like iSolved HCM will streamline your internal process, help you document work hours and absences, maintain I-9 and other employee signed documents and keep you in compliance with ACA, minimum wage and other laws.

This was originally published on the MassPay blog.