“Let’s turn over — a new leaf.”
“And, baby, let’s make promises — that we can keep. We’ll call it a New Year’s resolution…”
Now that the New Year’s celebrations are over, it’s time to start thinking about resolutions. Ugh.
Here are my top picks for employers. Despite the fact that it’s 2020, you’ll be happy to know that I don’t have anywhere near 20 resolutions. Only nine!
Resolution No. 1: Training. If your harassment, discrimination/retaliation, family and medical leave, reasonable accommodation, and other employee-relations training is up-to-date, then you win a gold star! For everybody else, 2020 is a great time to become up-to-date. The ideal way is to conduct three levels of training: (1) very thorough, intensive training for Human Resources, probably conducted by employment counsel; (2) reasonably thorough, intensive training for non-HR management, which can be conducted by counsel, an HR consultant, or in-house counsel or HR; and (3) concise training for non-management employees aimed at giving them some practical dos and don’ts, letting them know how to register a complaint, and letting them know that retaliation is against company policy and against the law.
Some states have more specific training requirements for employers, so be sure you comply with those, too, if they apply.
Resolution No. 2: Make sure your exempt and non-exempt employee classifications are correct in light of the regulations that took effect on January 1. As we’ve reported here and elsewhere, the minimum salary for employees to qualify for the administrative, executive, and some professional exemptions under the Fair Labor Standards Act has increased. To be exempt, the employees must be paid at least $684 a week on a salary basis ($35,568 a year). If you have “exempt” employees who don’t get paid that much, you have the options of (1) giving them a pay increase to get them to the exempt level, or (2) reclassifying them as non-exempt, which means among other things that they’d be entitled to overtime pay.
Resolution No. 3: Scrutinize the way you’re conducting workplace parties, after-hours schmoozing, social time during meetings, and “team-building” and “morale-building” activities, and dial it down. In today’s legal environment, too much fun is a no-no. You also have to be extra careful that, in trying to be “clever,” “creative,” and “engaging,” you don’t create an HR (and PR) disaster by causing offense based on race, ethnicity, sex, or some other protected characteristic. As this employer recently learned.
Resolution No. 4: Review and adjust the way you treat pregnant employees who need accommodations, especially if you’re in the health care industry. The old rule was that you didn’t have to “accommodate” pregnancy-related restrictions but only had to avoid discrimination based on pregnancy. The new rule (since 2015) is that you probably have to accommodate pregnant employees with restrictions if you accommodate other employees who are similarly situated in their ability or inability to work. “Similarly situated” employees would arguably include employees with workers’ compensation injuries (who may be eligible for light duty/”make-work”) and employees with disabilities.
The health care industry, in particular, is a target of the Equal Employment Opportunity Commission because (1) health care work is relatively “physical” and harder to accommodate than administrative or office work, and (2) health care has many, many female employees of childbearing age.
Also, a number of state laws require pregnancy accommodation, so if you have operations in those states, you’ll have to comply with those laws, as well.
Resolution No. 5: Review and update your substance abuse policies as they pertain to marijuana. Be especially wary of “zero-tolerance” policies on marijuana use. If you’re in a state where medical marijuana use is legal, your state disability rights laws may require you to make reasonable accommodations for the use of medical marijuana. We are even seeing situations where an employer in a state where marijuana is still illegal has to figure out what to do with an out-of-state recruit who tested positive on a pre-employment drug test based on legal marijuana use in his or her home state. (My preference would be to give those folks the benefit of the doubt, as long as they agree to comply with the law after they move to your state. I’m not sure you’re legally required to do this, but it seems like the fair thing to do.)
Resolution No. 6: Monitor your compensation for pay equity issues. Yeah, I know — every year, we say we’re gonna do that, and we just never get around to it. OK, but it’s a new decade! Let’s do it now! Also, make sure you are complying with any applicable state pay equity requirements, including “comparable worth” laws and bans on asking about salary history or taking it into account.
Oh, and fix any issues you find. 🙂
Resolution No. 7: Review and update your leave policies, especially if you have operations in states where paid leave is mandated. Rumor has it that there is bipartisan support in Congress for a federal paid leave law.
Bipartisan? Our Congress? . . .
Also, do what you can to make your medical leave policies and procedures as understandable and accessible to employees as possible.
Resolution No. 8: Mind your LGBT Ps and Qs. This is not as simple as it sounds. As most of you know, the Supreme Court is expected to decide this spring whether Title VII prohibits discrimination based on sexual orientation and gender identity. Whatever the Court decides, employers should prohibit discrimination or harassment based on these characteristics as a matter of policy.
But also don’t forget that Title VII requires reasonable accommodation of an employee’s sincerely held religious beliefs, and that can sometimes create a conflict with LGBT rights. Just this week, a federal judge in Indiana refused to dismiss Title VII claims of an Evangelical Christian public school teacher who claimed to have a sincere religious belief that God created “binary” men and women only.
According to the lawsuit, the Brownsburg Community School Corporation had adopted a rule requiring teachers to address students by their chosen names and pronouns. John Kluge expressed his religious objection to doing so where the students’ names and pronouns did not match their biological sex. He offered to address all of his students — both transgender and “cis” — by their last names only, “like a coach.” The school agreed to this for a short time and then told Mr. Kluge that he would have to start using the students’ full chosen names and pronouns. Or else. Mr. Kluge, who ultimately resigned, sued under Title VII for failure to accommodate his religious beliefs and retaliation, among other claims.
The court’s refusal to dismiss the Title VII claims doesn’t necessarily mean that Mr. Kluge will win the case. But the decision shows that employers will have to beware of addressing LGBT rights in a way that may infringe on the sincerely held religious beliefs of others.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.