Rejuvenating Employee Policies: Time to Readjust the Sails

“The pessimist complains about the wind; the optimist expects it to change; the realist readjusts the sails”.  William Arthur Ward.

Your company’s employee policy manual charts the course for its internal operations.  That chart must be kept up to date to account for the ever-changing currents of employment law.  To keep your company’s employee policies on course, the company must know what changes in the law have occurred or may occur, so they may adjust their sails accordingly.  

Federal/State legal developments over the last couple of years resulted in changes that make it critical for companies to review their handbooks for compliance.

The following are some important changes- or changes on the horizon- to be aware of.

1. Proposed Overtime Rule. In its regulatory guidance published on December 14, 2017, the U.S. Department of Labor predicted it will issue a proposed overtime rule by October, 2018.  It is expected the DOL will finally raise the salary threshold for white-collar exemption, though not as high as proposed by the Obama administration. 

2. Sexual Harassment Training.  With the growing alarm concerning sexual harassment in the workplace, employers are advised to take a fresh look at their sexual harassment policies, especially those governing the complaint process and investigative procedures.

3. Discrimination Based on Sexual Orientation. In Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), the 7^th Circuit held-in a decision overruling many years of precedence-that sexual orientation discrimination violates Title VII of the 1964 Civil Rights Act prohibiting various forms of discrimination. Before  this decision, the federal appeals courts had held that sexual orientation is not a protected class. In Evans v. Ga. Reg'l Hosp., 850 F.3d 1248 (11th Circ. 2017), a split panel of the Eleventh Circuit held it was bound by prior precedent that Title VII does not prohibit sexual orientation discrimination.  In December of 2017, the U.S. Supreme Court denied certiorari in Evans. It is likely the Supreme Court will accept certiorari on another case, however, in order to resolve the split.

4. U.S. Department of Labor Wage & Hour Opinion Letters. In a welcome development, the DOL finally returned to allowing businesses and others to request opinion letters concerning federal wage and hours issues. Three opinion letters were released on April 12, 2018 offering guidance on what counts as work time under the Fair Labor Standards Act when employees travel for work; whether hourly rest breaks necessary to accommodate an employee’s health condition must be paid; and, whether certain lump sum payments to employees are considered earnings for garnishment purposes pursuant to the Consumer Credit Protection Act.

5. Guidance on the Fair Labor Standards Act.   On March 27^th, 2018, the U.S. Department of Labor’s Wage & Hour Division announced it has launched a new series of instructional videos tutoring employers on their responsibilities under the FLSA.  Find out more about how to protect your workers and insulate yourself from liability by visiting http://www.dol.gov/whd.

6. Faster Payment of Inadvertent Overtime and Minimum Wage Violations.  Employers and employees working with DOL to resolve an inadvertent violation of overtime and minimum wage violations by the employer should welcome the news that in March of 2018, the Wage and Hour Division of the U.S. Department of Labor announced a new pilot program, the Payroll Audit Independent Determination (PAID) program.  That program expedites resolution of inadvertent overtime and minimum wage violations under the FLSA.  Employees will receive 100 percent of the back wages paid, without having to pay any litigation expenses, attorneys’ fees, or other costs that may be applicable to private actions.

Employers must be vigilant when it comes to ensuring their employee manual is charting the correct course. If your business needs assistance in navigating the ever-changing sea of employment law, call a Sioux City lawyer, Sioux Falls lawyer, or Omaha lawyer today!