The Ever-Changing Workplace
Hot Topics in 2014
February 26, 2014Employment law is constantly changing. As an employer, it is important to be sensitive to these developing areas of law and how they could potentially affect business in 2014. Although some of these topics have been gaining steam in previous years, 2014 is sure to raise continued awareness of these employment practices areas for employers both large and small.
1. Wage and Hour: Every day brings a news story about another employer being sued for a wage and hour violation. There are many issues in this arena from working without pay to working for a rate less than minimum wage to misclassifying employees as exempt. Whatever the reason, it is extremely important as an employer to evaluate how employees are paid.
If many of a business's employees are currently classified as exempt, the employer should review all the standards to make sure these employees are truly exempt. If an employee is classified as exempt who does not meet the qualifications, then there is a violation of the National Labor Relations Act. Employers should review employee's job responsibilities to make sure they truly fall under the exemption.
Employers should also be aware of having employees do any type of work "off the clock." If you see an employee who is consistently working well over 40 hours a week that is classified as exempt, be wary. Courts could start to see an increase in lawsuits against employers who are using "exempt" status to get away with not paying overtime.
Check out this document for more information on exempt employees:
http://www.dol.gov/whd/regs/compliance/fairpay/fs17d_professional.pdf
2. DOMA: The case of United States v. Windsor (2013) will have a huge impact on employment practices this year. In the holding in Windsor, the United States Supreme Court invalidated a key provision in the Defense of Marriage Act (DOMA) which had previously defined marriage as between a man and a woman. Under federal law, both same-sex and opposite-sex couples will now be treated equally that are married. Expect court cases to arise in regards to benefits for same-sex spouses. This change could also affect taxes that are/were paid for benefits provided to same-sex spouses previously. Employers want to be aware of both federal changes (and state changes are more states legalize same-sex marriage) to make sure they are treating all employees equally under all provisions of the law.
3. Harassment: Most individuals recognize that it's inappropriate for a man to make offensive sexual comments to a woman in the workplace. Most supervisors have been trained to know they cannot base promises or threats about work on sexual favors (quid pro quo). What a lot of employers do not realize is that harassment extends beyond the outdated standards of the 1990s. Employers should be cognizant of all types of harassment in the workplace. Employees who are taunted because of their race or religion can file suit under an overall theory of a "hostile work environment." The best protection as an employer is to have a strong harassment policy in place. Train your employees to understand all types of harassment and that all harassment is against the law. Encourage employees to speak up if they feel that they are being harassed at work. Watch for this area of law to grow and develop as more lawsuits get filed under the theory of a hostile work environment.
4. ACA: Many employers are already seeing dramatic changes due to the Affordable Care Act (ACA). The requirements of the ACA can extend well beyond the knowledge of some Human Resources professionals. Employers should consult with an attorney who is well versed in the nuances of the ACA if they have any questions about what their responsibilities are under the act. One of the most important ACA components for some employers will be to determine if it applies to a their business.
The definition of a large employer has changed under the ACA. The ACA applies to any employer with 50+ full-time equivalents. A formula has been designed that employers can use to determine how many employees they have under the ACA. It is important to know that the ACA applies to ALL common law employers with at least 50 full-time equivalent employees including churches and other tax-exempt organizations. The ACA also designates specific affordability requirements for the coverage that employers offer to employees. Employers may be setting themselves up for lawsuits and heavy fines if they miss deadlines because of a misunderstanding of whether the ACA applies to them and/or their obligations under the ACA.
Check out these websites for more detailed information on the ACA and full-time equivalent employees:
http://www.sba.gov
http://www.irs.gov
http://www.hhs.gov
5. GINA: If you're not familiar with this acronym, then you should be. The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits an employer from using an employee's genetic information when making employment-related decisions. An employer is also prohibited from requesting and/or requiring an employee to supply any genetic information about the employee or their family. So what does that mean?
As insurance costs are on the rise due to the ACA or rising costs of healthcare, employers must be very careful to not use any information based on an employee's genetics when making employment decisions. The fact that every woman in Suzie's family has had breast cancer is not a basis for choosing to hire Sam instead. Now, that seems rational, but the problem can also come in the inadvertent gathering of information. Employers want to be extremely careful with genetic information that they may gather for other reasons, such as reasonable accommodation or FMLA. This information should be kept private and preferably in a separate file so it has limited accessibility. Even though GINA has been around since 2008, expect an increase in complaints filed in court or with the EEOC in future years because of violations of this act.
Check back for future blog articles about these and other relevant employment practices topics!
Nicole Crump, JD, CIC
Director of Employment ADR
EDR Systems
This information is the opinion of the writer and is not meant to be construed as creating an attorney-client relationship or as legal advice to an individual or business. Please consult your attorney if you need legal advice on the issues above.