Happy New Year to all Bulletin readers. With 2018 and its successes, as well as failures, matters of the past, 2019 and its potential become more clear. Looking to past trends and expert guidance, Employers Council offers to you this preview of five critical topics for 2019 that are certain to occupy your time.
If you’re doing business in one of at least 16 states in which one or more paid sick leave laws are in effect at the state or local level, you know how critical compliance with these laws can be. In addition, if you are a multi-state employer maintaining operations in more than one (or even all) of the paid sick leave law jurisdictions, you are likely to have either a very generous, uniform policy for all employees designed on one or more of the most generous elements of the various laws, or sixteen plus different paid sick leave policies, or are woefully out of compliance. With legislatures in many states poised to pass more paid sick leave laws (including, perhaps, in Colorado), now is the time to better understand these laws, their many similarities, their nuanced differences, and how they may impact other organizational mechanisms, like performance management, leave management, and related leave types such as time off under the Family and Medical Leave Act (FMLA).
Cannabis legalization, whether for medical or recreational purposes, is spreading to new states at a much faster rate than cannabis prohibition is upheld by state ballots. In 2019, Utah and several midwestern states (such as Michigan and Missouri) will add to the increasingly confusing patchwork of laws regarding use of cannabis products, or the presence of their byproducts in drug testing, for workplace purposes. While some state laws unequivocally bely any restrictions on employer drug testing and acting on use of cannabis products, some state laws are more restrictive. This may require your organization to implement different drug testing policies in different states.
In addition, with cannabis products more readily available than before, and their use seemingly normalized, employers are more likely to encounter impaired employees. When these employees perform safety-sensitive functions, there is increased risk associated with negligence claims and higher workers compensation rates when accidents happen. However, cannabis impairment defies reliable scientific verification, as tetrahydrocannabinol (THC) levels may remain high in some users even after the actual impairment has subsided. This is a major reason why some states (such as Colorado) did not implement “per se” impairment standards (as might be found for alcohol impairment, for example, with the commonly quoted 0.08 percent Blood Alcohol Content standard). The same problems with methodology also plague employers who are keen to verify impairment using scientific methods.
The best alternative is to provide excellent training to your supervisors about reasonable suspicion of impairment. Reasonable suspicion may be the employer’s most useful tool in combating cannabis impairment in the workplace.
Several states now have explicit laws on the books that impose obligations on organizations who hold certain personal information about people, generally, including their customers and employees. While these laws come under the guise of overall consumer data privacy, the definitions of protected data included therein generally reach personal information that employers hold about their employees. Especially in the realm of human resources, data related to employees often include some of the most sensitive information, including medical documentation, bank account numbers, family information on benefits enrollment, and more. Worse yet, few employment law and human resources practitioners dabble in the realm of information privacy and data security, requiring potentially costly consultations with outside experts in both the technological and legal realms.
While some questioned whether cybersecurity laws passed in states like Colorado (effective September 1, 2018) and California (effective January 1, 2020) were truly a subject of major concern, there is less question now that this is the case. In late 2018, the Pennsylvania Supreme Court sided with a class of plaintiffs against a public medical center concerning claims that the center had improperly protected data related to 62,000 former and current employees. The cause of action did not arise under an explicit data privacy law like the one in Colorado or the upcoming law in California, but rather prevailed on general negligence principles. In states where data privacy laws exist, those laws will likely impose an even higher standard on covered employers than was the case in Pennsylvania. This means that lawsuits are likely to be even more difficult to defend in data privacy regulating states such as Colorado.
States will continue to crack down on sexual harassment in 2019, as they did in 2018, with New York and California acting as frontrunners for new legislation in this area. The Equal Employment Opportunity Commission (EEOC) was already setting new litigation records for sexual harassment claims by October 2018, the beginning of its fiscal year, much less through the end of 2018. As in New York and California, one of the mainstays of sexual harassment prevention legislation is to mandate training, training, and more training. This is because training is an effective tool in combating against a multitude of workplace risks.
By this is meant not only the slew of pay equity laws passed in various states and in place at the federal level, but also “equity” as a general fairness principle. As with cannabis, sexual harassment, and paid leave, pay equity is enormously complex when considered in its multi-state framework. In 2018, state laws quickly went into effect all around the country, and often with little notice, that required employers to examine any pay differentials that might be based on discriminatory factors, such as sex and race, but in some states including numerous other protected factors, such as national origin.
Pay equity, in the more general sense, is likely to come up again where minimum rates of pay are concerned. At the minimum wage level, some workers (but not all, as is featured in the companion piece on A Brief History (and the Future) of the Minimum Wage) continue to lobby for a $15 hourly base rate. Some municipalities are responding, but other governing entities face little pressure and there is little likelihood of action, creating the potential for greatly disproportionate rates of pay on a state-by-state level.
Continuing to simmer on the back burner are changes to the so-called Fair Labor Standards Act “white collar overtime exemptions,” held over courtesy of the Eastern District of Texas’s federal trial court since December 2016. The major change to the exemptions is a contemplated rise in the minimum salary threshold required to treat an employee (other than a doctor, lawyer, teacher, or outside salesperson) as exempt. The current level is $455 weekly (i.e., $23,660 annually), and the last proposed level was $913 weekly (i.e., $47,476 annually). It is unlikely that the exemptions will be proposed anew at the $913 weekly level.
Employers Council is prepared to tackle any or all of these topics with you, now or later. As 2019 emerges, consider the following offerings to prepare for another successful year.
On the topic of paid leave, consider our substantial multi-state resources, including offices in paid sick leave jurisdictions like Arizona, attorneys with licensure and experience in states like Washington, the California legal services group, and online training offerings through our Training Catalog.
On the topic of cybersecurity, spend an hour listening to a recording of our webinar discussing strategies for Colorado’s new law on our new Online Learning Center, and review our news items on current and upcoming laws in Colorado, California, and even the European Union.
On the topic of sexual harassment, consider the multitude of offerings on the Online Learning Center, including the general harassment prevention course. Stay tuned for similar Online Learning Center offerings for California supervisors and non-supervisory employees; for more information, e-mail CAInfo@EmployersCouncil.org. As always, be sure to contact our Workplace Investigations group if you need an impartial, credible, experienced investigator to bolster any defenses you might need later.
On the topic of pay equity, get in touch with our Affirmative Action Planning Services (AAPS) group to evaluate your compliance obligations and success.
As always, stay tuned to the Council’s monthly Bulletin or weekly Hot Topics for important updates on employment law and human resources topics.