Once again we’ve had a busy year in the areas of Human Resources and Employment Law. Here is a brief summary of some of the recent changes in both Ohio and Federal employment laws.
Although this issue has received a lot of recent attention in the media, nothing has changed from a legal perspective. However, public perception and the public tolerance for businesses to continue to employ persons accused of sexual harassment has significantly changed in 2017. Increased awareness of what sexual harassment is and employee’s rights may also lead to increased claim reporting and lawsuits.
Action Needed: Review and update your harassment and discrimination policy, including your reporting and investigation procedure. Now more than ever, employers should conduct annual training for all employees on the company’s sexual harassment policy. Supervisors/managers should also receive additional training on how to respond to and investigate claims. Proactive measures can provide a company with an affirmative defense, but also go a long way to reduce or eliminate misconduct and claims.
Effective September 29, 2017, the Ohio Bureau of Workers’ Compensation (BWC) statute of limitations changed from 2 years to file a claim to 1 year. Other changes were made including the time to file an appeal to court and suspending a claim if a claimant fails to attend a permanent partial disability (PPD) medical exam.
Action Needed: Anyone handling workers’ comp claims for a company should be aware of the new statute of limitations. Companies that do not use third party administrators (TPA’s) should become familiar with all the new changes in effect.
NLRB – Employee Handbooks
In December, 2017, the National Labor Relations Board (NLRB) issued a ruling setting a new standard by which it will determine if policies stated in an employee handbook violate an employee’s rights under the National Labor Relations Act (NLRA). Under the new standard, a facially neutral policy that has the potential for interfering with an employee’s NLRA rights will be evaluated under two factors: a) the nature and extent of the potential impact on NLRA rights, and 2) the legitimate justification associated with the rule. Examples of policies that could impact an employee’s NLRA rights include “no camera/video” rules and certain restrictions on social media postings.
Action Needed: Employers should review their employee handbooks to determine if any policies can be or need to be changed. Employers should use caution, as this is only one ruling and the new standard may be clarified or elaborated upon in subsequent rulings. Still consult legal counsel prior to taking action against employees who engage in activity that may be protected under the NLRA, as this has been a moving target for several years.
NLRB – Joint Employers
In December, 2017, the NLRB changed its standard for determining whether “joint employer” liability extends to company contractors or franchisees. Under the new standard there must be “proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint employer status will not result from control that is ‘limited and routine’.
Legislation has currently passed the House of Representatives, but is pending in the Senate, that would amend the “joint employer” definition as it appears in both the NLRA and FLSA.
Action Needed: Companies that are closely related, either through ownership or franchise agreements, should consult with legal counsel and review whether their current employment practices meet the new definition of “joint employer”. (Most businesses try to avoid joint employer designation.)
FLSA Salary Test – Final Ruling
In late August, a federal judge in Texas issued a final ruling that invalidated the 2016 increase to the FLSA’s salary test (from $23,660 to $47,476). The court had placed a preliminary injunction on the rule in November 2016, and issued its final ruling in August 2017. The DOL has filed an appeal, but has also asked the court to place the appeal on hold while the DOL reviews public comments to determine what the new salary test increase should be. Current DOL Secretary Alexander Acosta has stated that he believes the salary test needs to be increased, and has given figures in the low $30,000 range as what he believes is appropriate.
EEO-1 Reporting Requirements
In August, 2017, the Office of Management and Budget (OMB) put a hold on the EEOC’s 2016 proposed revisions to the EEO-1 report, which would have increased reporting requirements on pay data and hours worked. (The EEO-1 is only required for employers with 100 or more employees.)
OSHA – Post-Accident Drug Testing Rule
In December, 2016, a new OSHA rule regarding post-accident/injury drug testing went into effect. Under this new rule, OSHA disfavored across-the-board post-accident/injury drug tests, as they could have a “chilling effect” on employees reporting work related injuries. Lawsuits challenging this rule were filed in several courts. Over the summer of 2017, OSHA asked two separate courts to stay the proceedings pending a revision of this rule, and the court cases were put on hold. In October, OSHA filed a status report in one of these cases stating that OSHA was going through the rulemaking process to “reconsider, revise or remove” provisions of this rule.
While the rule is under “reconsideration”, employers are urged to comply with the existing rule, which allows for post-accident/injury testing where there is a “reasonable possibility” that drug/alcohol use could have been involved. There’s not much official guidance on this – a bee sting is not reasonable, nor is a repetitive strain injury. But an injury caused by lack of machine guarding would be reasonable.
Action Needed: As we wait for the rule revision, employers should individually assess each workplace accident/injury to determine if it is “reasonable” that drug/alcohol use may have been involved. Employers who drug test as a part of the BWC’s Drug Free Safety Program are exempt from this rule.
I9 Immigration Form
The I9 immigration form, filled out by all new hires within 3 days of employment, was updated in 2017. All employers should be using the new I9 form – with a revision date of 7/17/17 – for all new hires. Existing employees do not need to complete a new form.
Transgender and Sexual Orientation as Protected Classes
In October, 2017, the Department of Justice (DOJ) issued a memorandum that stated Title VII (the Civil Rights Act that prohibits workplace discrimination) does not protect “gender identity per se, including transgender status”. The EEOC had taken prior positions that transgender employees were protected by Title VII. This statement also conflicts with court decisions in several Federal Circuit courts (including the Sixth Circuit, which covers Ohio) that have ruled that Title VII covers transgendered employees. In addition, in 2017 the DOJ and EEOC have taken opposing positions on whether sexual orientation is protected under the EEOC.
Action Needed: There is no consensus in either the courts or the Federal administrative agencies as to whether sexual orientation or gender identity are protected classes under discrimination laws. Employers are urged to act with caution before taking any action against applicants or employees based on gender identity or sexual orientation.
Ohio’s “Guns in Trunks” Law
Signed by Governor Kasich on December 19, 2016, and in effect since March 17, 2017, this law prohibits employers from having policies that prevent employees from keeping guns in their cars, even when the car is parked on company property. Guns must be kept in an enclosed compartment or container, and this only applies to persons with concealed carry licenses.
Action Needed: If your current policy prohibits weapons on company premises and specifically includes the company’s “parking lot”, then you will need to update your employee handbook accordingly.
Minimum Wage Increase
Ohio’s minimum wage will increase from $8.15 to $8.30, effective January 1, 2018. If you have employees in other states, check those states as well. The Federal minimum wage remains at $7.25/hour.
Download Ohio’s new poster here: http://www.com.ohio.gov/documents/dico_2018MinimumWageposter.pdf
If you have any questions regarding any of these issues how it impacts your business and employees, please contact Jennifer Corso. firstname.lastname@example.org, 216-381-3400.