XpertHR Outlines Top 10 Scariest Employment Challenges in 2016

By Denise Johnson | December 28, 2015

According to the Equal Employment Opportunity Commission’s most recent Performance Accountability Report, the agency secured more than $525 million in fiscal year 2015 for victims of discrimination in all sectors of employment.

The increased focus on employment issues prompted XpertHR to release a report on the 10 Scariest Employment Challenges in 2016.

Same Sex Marriage

The Supreme Court ruling in Obergefell v. Hodges requires employers provide the same benefits to individuals in same-sex marriages. “The Court ruled that the Constitution requires all states to license same-sex marriages and to recognize such marriages when they were lawfully licensed and performed out of state. This historic ruling clears the way for same sex marriages nationwide by declaring that same-sex married couples can no longer be denied the benefits that are provided to opposite-sex married couples. Based on the Court’s ruling, married same-sex couples residing in states where same-sex marriage was legal became eligible for the same benefits and protections as opposite-sex spouses, such as protection under the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Family and Medical Leave Act (FMLA), the Employee Retirement Income Security Act (ERISA), immigration law and Social Security.”

Expanding Protections for LGBT Individuals

Though sexual orientation and gender identity is not currently recognized under Title VII, this year, the EEOC did define sexual orientation discrimination as treating a worker less favorably based on that person’s sex as well as treating a worker differently based on their association with a person of the same sex. According to the report, “the EEOC stated that sexual orientation involves unlawful discrimination based on gender stereotypes which is prohibited under Title VII.”

Since state and even city laws may vary on discrimination and harassment of lesbian, gay, bisexual and transgender individuals, XpertHR recommends businesses review their workplace practices and policies to ensure compliance.

Reasonable Accommodations for Increasingly Diverse Workplace

According to the report, issues relating to reasonable accommodation continue to be in the forefront on both the federal and the state levels. “Under federal law, employees have a right to accommodations based on such characteristics as religion, disability and pregnancy.”

Two recent Supreme Court cases illustrate the continued focus on reasonable accommodations relating to religion and pregnancy.

In EEOC v. Abercrombie & Fitch Stores, Inc., the Court offered guidance on religious accommodations in its ruling “that an employer that does not know that a job applicant requires an accommodation may still discriminate against the applicant because the focus is on the employer’s motivations and whether or not the need for an accommodation influenced the employment decision in any way.” To file a disparate treatment claim, the applicant is not required to show that the employer had knowledge of the individual’s need for an accommodation. Instead, the applicant must only show the need for an accommodation was a motivating factor in the employer’s decision. “Actual knowledge of the need for a religious accommodation is not required under Title VII and the employee only needs to show that this motivated an adverse employment decision,” the report stated.

Pursuit of claims related to pregnancy discrimination will likely continue, according to Gail Gottehrer, a partner with the East Coast firm of Axinn, Veltrop & Harkrider who often represents insurers, the result of the Supreme Court’s decision in Young v. UPS where the Court held that UPS failed to reasonably accommodate Young.

As a result of the Court’s decision, the EEOC revised its pregnancy accommodation guidance, noting that pregnancy-related impairments may give rise to a need for reasonable accommodations. The report noted that “a number of states and cities continue to enact laws that may require an employer to provide reasonable accommodations based on pregnancy.”

“They [UPS] should have accommodated her as they would have with a disability to make it possible for her to do her job while she was pregnant,” Gottehrer explained in an interview with Claims Journal earlier this year . “I envision that we’ll see more claims like that of people, either allegations that companies didn’t sufficiently accommodate pregnant women and claims by companies that the accommodations requested by pregnant women weren’t reasonable. Even though the court came down with a clear decision…in application we’ll still have some bumps along the road. We’ll see cases actually parsing that out in a situation by situation basis.”

Only Delaware, Illinois and the District of Columbia have laws requiring employers to make reasonable accommodations for pregnant employees.

Employers can offer accommodations in a number of ways, including:

  1. Offering a telecommuting option;
  2. Scheduling changes;
  3. Making modifications to dress code and grooming requirements;
  4. Job reassignments;
  5. Time off;
  6. Workplace task modifications;
  7. Redistributing non-essential job duties;
  8. Workplace modifications on food and drink breaks;
  9. Providing additional equipment;
  10. Reassignment to a light duty job.
Paid Sick Leave

According to the report, between 2014 and 2015, the number of state and municipal paid sick leave laws in the U.S. more than doubled. California, Connecticut, Oregon, Massachusetts and the District of Columbia as well as more than 20 municipalities have created their own sick leave laws.

Multi-jurisdictional businesses need to review whether these new laws apply and also need to review how the laws may interact with the federal FMLA.

National Labor Relations Board Pursuit of Workplace Policies

The National Labor Relations Board (NLRB) pursues both union and nonunion workplace employment policies that infringe upon employee rights. According to XpertHR, “Section 7 of the National Labor Relations Act (NLRA) gives both union and non-union employees the right to engage in protected concerted activity and collectively discuss wages, hours and working conditions.” A particular focus of the NRLB has been handbook policies that infringe on employee rights.

According to the report, the following workplace policies were most commonly affected:

  1. Confidentiality rules;
  2. Rules regulating conduct toward the employer and toward co-workers;
  3. Rules regulating employee interaction with third parties;
  4. Rules restricting use of company logos, copyrights and trademarks;
  5. Rules restricting photography, recording or personal electronic devices;
  6. Rules restricting employees from leaving work;
  7. Conflict-of-interest rules;
  8. Social media policies; and
  9. No distribution/ no solicitation provisions.
Workplace Wearables

Wearable technology refers to miniature electronic devices that are worn under or on top of clothing or are somehow attached to the body. The devices have the capability of capturing quite a bit of data, including information about the wearer and the surrounding environment. Employers should be aware of the risks associated with wearables. These risks include data breach, privacy issues and information accessibility.

Employers are encouraged to create a wearable technology policy outlining how the information will be used, that it is discoverable and any violations in use.

Redefinition and Expansion of Overtime Eligibility, Raising of the Minimum Wage

Another area that could see more lawsuits relates to the Department of Labor and the Fair Labor Standards Act. The DOL proposed rulemaking that would broaden the definition of an employee. Once the rules are finalized, it could cause a major shift for companies in terms of who qualifies for overtime.

The report stated that in February 2015, “the DOL proposed new overtime rules which revise the overtime exemptions for executive, administrative and professional employees and increase the availability of overtime pay.”

If the changes are approved, an additional 4.6 million workers will become eligible for overtime unless their employers raise their salaries.

The minimum wage for federal employees increased to $10.10 this year and several states have increased their minimum wage.

Providing Independent Contractors With Increased Workplace Rights

This year, the DOL outlined a new interpretation to determine if a worker is an independent contractor or an employee. The agency advises that employers should “apply the economic realities test and evaluate all factors as opposed to relying solely on the right to control test which considers whether the employer has the duty or right to control the worker,” the report noted. Employers should consider the following factors:

  • If the nature of the individual’s work an integral part of the employer’s business (work performed away from the employer’s place of business can still be integral);
  • Whether the worker’s managerial skills has an effect on the worker’s opportunity for profit or loss (whether the worker can make decisions and use managerial skills and initiative to affect the opportunity for profit or loss);
  • A comparison of the worker’s investment as opposed to the employer’s investment; whether the work performed requires special skill, judgment and initiative as opposed to technical skills;
  • Whether the relationship between the worker and the employer is permanent or indefinite and whether this is a result of the worker’s independent business initiative or the operational characteristics of the industry (i.e., seasonal, part- time); and
  • The degree and nature of employer’s control and whether the employer actually controls meaningful aspects of the work performed.
Revising the Joint Employer Standard, Expanding the Pool of Employers

Globalization and the changing economy has altered the employment landscape. As a result, more focus has been placed on multi-employer relationships. The reported noted that “previously, two entities could be considered joint employers if they shared the ability to directly and immediately control or determine essential terms and conditions of employment such as hiring, discipline, termination, suspension and direction and an employer had the ability to meaningfully affect employment matters.” A recent case decision, Browning-Ferris Industries of California, Inc.,362 NLRB No. 186 (Aug. 27, 2015), expanded the standard for finding that two employers constitute a joint employer for collective bargaining purposes and liability under the NLRA. According to the report, the new standard “states that a joint-employer relationship exists if the alleged joint-employers possess, exercise or simply retain the right, directly or indirectly, to control essential terms and conditions of employment, even if that control is not actually exercised. The NLRB will no longer require that joint employers actually exercise the authority to control terms and conditions of employment, and instead reserved authority and the mere potential to control wages and working conditions even if not exercised is relevant to determine joint employer status.”

Telecommuting and Flexible Work Arrangements

Wage and hour issues may develop as a result of an employer’s telecommuting arrangement with employees. XpertHR’s recommendations include having a detailed, consistent telecommuting policy in place with specific guidelines.

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