2019 Compliance Trends

What’s New in Compliance Trends?

Business owners are facing the need to spend more time and energy than ever before on human resource issues due to employment law and workplace requirements changing almost daily, In today’s legal landscape, fighting lawsuits or paying a penalty for violating ambiguous law can hurt a business.

Five Municipal Trends:

1. Paid sick leave
2. Ban the box
3. Predictable scheduling
4. Salary history and pay equity
5. Minimum wage

Although it may be difficult and time-consuming, it is essential for HR to stay on top of these changes to make sure they are following federal, state and municipal requirements. This can be especially difficult for multijurisdictional employers because they have to make sure they are managing the unique interplay of the myriad of laws.

PAID SICK LEAVE

Paid sick leave laws continue to create a big headache for an employer that may be tasked with not only understanding its legal obligations under a particular law, but also with knowing how the law intersects with other laws and the employer’s own policies on absences and paid time off. Private employers in many municipalities are required (or soon will be required) to provide some form of paid sick leave to eligible employees. While no federal law requires paid sick leave in private employment (other than Executive Order 13706 relating to federal contractors and subcontractors), there is a growing trend at the state and local levels to protect employees who may otherwise be forced to choose between going to work sick and losing pay and, in some cases, their jobs. Paid sick leave provides an employee with financial peace of mind when the employee cannot work due to his or her own illness or because he or she needs to care for a sick family member.

Many paid sick leave laws also include so-called “safe” time provisions, which provide leave rights to employees affected by domestic and sexual violence. Under such laws, an employee may be entitled to take leave not only to receive medical care but also to attend court proceedings, relocate, obtain counseling or obtain services from a victim services organization. Paid sick leave laws continue to create a big headache for an employer that may be tasked with not only understanding its legal obligations under a particular law, but also with knowing how the law intersects with other laws and the employer’s own policies on absences and paid time off. Private employers in many municipalities are required (or soon will be required) to provide some form of paid sick leave to eligible employees. While no federal law requires paid sick leave in private employment (other than Executive Order 13706 relating to federal contractors and subcontractors), there is a growing trend at the state and local levels to protect employees who may otherwise be forced to choose between going to work sick and losing pay and, in some cases, their jobs. Paid sick leave provides an employee with financial peace of mind when the employee cannot work due to his or her own illness or because he or she needs to care for a sick family member.

Many paid sick leave laws also include so-called “safe” time provisions, which provide leave rights to employees affected by domestic and sexual violence. Under such laws, an employee may be entitled to take leave not only to receive medical care but also to attend court proceedings, relocate, obtain counseling or obtain services from a victim services organization.

Many of these paid sick leave laws are extremely complex and have different coverage, eligibility, documentation and notice requirements. These laws are typically not one-size-fits–all, as the determination of an employer’s obligation to provide paid sick leave may depend on the number of its employees. For example, in some municipalities, such as New York City, only employers with five or more employees are required to provide paid sick leave while smaller employers must provide unpaid sick leave. Although smaller employers may think they are off the hook from providing paid sick leave, that may all change if they hire additional employees.

BAN THE BOX

Another growing trend among municipalities involves “ban the box” laws. The name stems from the box on job applications that prospective employees are often asked to check if they have ever been convicted of a crime. These laws make it illegal to include criminal history questions on initial job applications.

Many of the municipalities that have passed these “ban the box” laws cite the fact that those with criminal histories are often categorically rejected by employers. The primary goal behind these “ban the box” measures is to prevent qualified, rehabilitated job applicants from being automatically excluded from consideration without the chance for an interview. These laws are also thought to reduce recidivism.

Some of these laws also ban employers from conducting criminal background checks until after a conditional employment offer has been extended. While an employer may withdraw a conditional job offer if an applicant’s criminal job history is incompatible with the position, the employer generally must supply the applicant with:
• His or her criminal background report
• An explanation of why the position is incompatible with his or her history
• A notice stating that he or she has the right to appeal the decision

PREDICTABLE SCHEDULING

Another new trend an employer needs to be aware of is the rise of predictable scheduling legislation. These laws aim to provide workers with greater control over their workplace schedules, terms and conditions by requiring an employer to provide an employee with additional compensation if the employer makes last-minute scheduling changes.

Such laws intend to provide employees with increased stability and certainty when it comes to their work schedules so they can make child care arrangements or attend school, for example. Among other things, such laws may require an employer to:

• Provide employees with advance notice of their schedules (often two to four weeks)
• Provide employees with predictability pay if changes are made within this window, unless employees have requested changes in their schedule
• Provide employees with a good-faith estimate of how many hours they will actually work, as well as whether they will be required to be on call
• End the practice of “clopenings,” in which employees are required to work a late night shift followed by an early morning shift or back-to-back shifts without adequate rest in between
• Provide employees with additional compensation if the employee handles a “clopening” or back-to-back shifts
• Allow employees to request to work certain hours or schedules and in certain locations, and require that employers engage in the interactive process with employees and discuss these requests with employees in good faith; and
• Offer shifts to existing employees before seeking to hire new employees

Predictable scheduling laws also prohibit an employer from discriminating or retaliating against employees who request scheduling changes.
It is important for an employer to provide notice to employees of their rights under these laws in their employee handbooks and offer details on how schedules are set and how employees should request any scheduling changes.

SALARY HISTORY AND PAY EQUITY

In an effort to advance pay equity and eradicate the gender wage gap, a significant number of municipalities are enacting equal pay legislation or substantially revising longstanding equal pay laws. Such changes include strengthening equal pay laws, narrowing an employer’s defenses and expanding an employee’s entitlement to remedies and damages.

Some laws are aimed at increasing pay transparency by prohibiting employers from banning employees from discussing their wages. Other jurisdictions have taken steps to prohibit employers from requesting applicants’ salary history and basing hiring decisions on past salary.
This salary history question prohibition aims to reduce wage inequality between men and women. Having knowledge about past salaries when making hiring decisions may perpetuate previous discrimination when women may have been paid less than men for doing the same work. Therefore, if employers are restricted from asking salary history questions, then applicants who may have been underpaid in the past for discriminatory reasons will not have their compensation history used against them.

MINIMUM WAGE

The federal minimum wage has not increased since it was raised to $7.25 in July 2009. In the absence of a federal increase, many states and localities have raised their minimum wages well above the federal minimum, with some of them scheduling increases to rates as high as $15.00 per hour.

When a municipality’s minimum wage rate is higher than the federal government’s minimum wage rate, employers in that municipality must pay their nonexempt employees the higher wage, except in rare situations when an employee is exempt from the municipal minimum wage but not the federal minimum wage.

Conversely, when a municipality’s minimum wage rate is lower than the federal minimum wage, employers in that municipality must pay their nonexempt employees the federal minimum wage, except in rare situations when an employee is exempt from the federal minimum wage but not the municipal minimum wage.

To help ensure that the minimum wage keeps pace with the rising cost of living, many municipalities adjust (or will adjust) their minimum wage rates annually. Others adjust their minimum wage rates periodically through legislation or ballot initiatives.

Employer coverage, employee exemptions, tip credit rules, subminimum wages, youth opportunity wages and other provisions that may affect the minimum wage vary by jurisdiction.
A number of municipalities, including Chicago, Los Angeles, New York City, San Diego and Seattle, have adopted their own local minimum wages. Some municipalities have even taken things one step further and adopted minimum wages covering specific groups of employees, such as fast food workers in New York City. Counties such as Montgomery and Prince George’s Counties in Maryland, and Nassau, Suffolk and Westchester Counties in New York, have adopted separate minimum wages.

Additionally, a number of cities and counties have enacted “living wage” ordinances, which require employers contracting with a governmental entity to provide a higher minimum wage and, in some cases, health insurance benefits to their employees.

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