2019 Employment and Labor Law Updates

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Published on Friday, 22 February 2019 00:00

Recently, the HR Advisors for HR Partners attended the Kansas Society of Human Resources Management (“KSSHRM”) Employment Law and Benefits Conference. This conference discussed upcoming and changing laws, which may impact your workplace.

The following should be kept in consideration as we move forward through 2019. Please note that this list is not all-inclusive.

• Paid Leave – Ten (10) states currently have paid sick leave laws. It is anticipated that workplaces will see more required paid leave initiatives in 2020. No action is required for Kansas (“KS”) operations at this time.
• Minimum Wage – Minimum wage increases have been completed in nineteen (19) states for the year 2019 with a federal minimum wage adjustment proposed over a three (3) year window in hopes of increasing the minimum wage to $15/hour. No action is required for KS operations at this time.
• White Collar Exemptions – The Department of Labor (“DOL”) has issued new regulations which would increase the salary level for exempt eligibility to mid $30k’s instead of $47k, which was the prior proposed regulation. Additional movement surrounding this issue is expected to develop in late Spring/early Summer of 2019. No action is required by employers at this time.   
• Remote Devices – Current litigation deals with whether compensation is owed when non-exempt employees are conducting business using remote devices outside of their scheduled work hours. Specifically, regarding whether the time is considered, “de minimis”. HR Partners recommends compensating non-exempt employees when they are performing work-related duties regardless. No action is required by KS employers at this time.    
• Harassment and Cyber - Harassment – There was a 13.6% increase in harassment charges filed this past year with the EEOC recovering $70 million in claims. Employers need to continue to train employees and monitor compensation equality. For some states (CA, DE, LA, MD, NY, OR, VT) and some public employers, harassment training is required by law.
• Bans – Non-Disclosure Agreements in Sex Harassment cases have been banned by some states. There has also been a ban issued on Mandatory Arbitration in Harassment Cases. No action is needed for KS employers at this time.
• Sexual Orientation/Gender Identity – It is still uncertain whether Sexual Orientation and Gender Identity is covered as a protected class. The Equal Employment Opportunity Commission (“EEOC”) states that sexual orientation/gender identity is covered under Title VII, Department of Justice (“DOJ”) states that it is not covered, and under KS law, Governor Kelly reinstated protections for LGBT state employees. Except for state employees for the state of KS, no further action is needed by KS employers, at this time.
• Pregnancy Discrimination – EEOC states that employers must accommodate pregnancy the same as they do other non-pregnancy conditions including providing light or transitional duty. There may be more dialogue around this issue regarding whether days of absence related to pregnancy should be counted against an employee’s attendance record.
• Age Discrimination Employment Act (“ADEA”) - Age discrimination charges are expected to increase due to more than twenty-five percent (25%) of workers now being over the age of fifty-five (55).
• National Labor Relations Board (“NLRB”) Protected Concerted Activity (“PCA”) – There are new standards for evaluating handbook policies, i.e. more employer friendly. This also allows for employers to now include policies which specifically prohibit photographing and recording.
• Ban the Box – This ruling prohibits employers from asking about an applicant’s criminal history on the application. Except for Kansas City, KS, other KS employers are not impacted and can still keep the item on the application which asks whether or not the applicant has a felony.
• Ban the Pay Talk – This ruling prohibits employers from asking applicants their current salary as part of the hiring process. KS employers are not impacted at this time.
• Telecommuting – Working from home has rapidly increased and has created new challenges for employers. Review your telework polices for eligibility language, approval process, responsibilities and expectations and role specifics such as: defined duties; location of work; work hours; break times; permitted/prohibited activities while working from home; limitation on injuries to third parties and expectation to report job-related injuries. Comply with OSHA and ensure the required workplace postings are provided.
• Bring Your Own Device (“BYOD”) - Ensure your policy states who is eligible, what is the security plan, what devices are impacted and what is the exit strategy when an employee no longer works for the company? Review your policy to include privacy expectations, security, health and safety and data costs.
• Marijuana – Thirty-three (33) states are currently impacted with laws legalizing marijuana one way or another. OSHA and Americans with Disabilities Act (“ADA”) are large components of this legalization regarding marijuana in the workplace. Employers should have a checklist readily available for reasonable suspicion, ensure that random drug tests are “random” and have a policy which reflects business needs and culture. KS employers are not impacted by the legalization of marijuana at this time.

When was the last time your employee handbook or employment policies were reviewed? Contact HR Partners to assist you with strengthening your policies and ensuring your organization is proactive and compliant with the above employment and labor laws. If your organization operates in a state outside of Kansas, please contact HR Partners for the latest law updates.

Ritchie, A.C. (2019), There’s an App for That! [PowerPoint slides].

Davis, T.A. (2019), Recent Developments in Employment Law 2019. [PowerPoint slides].

Rayl, M.L. (2019), Drugs in the Workplace & Changing Marijuana Laws: Working Through the Haze. [PowerPoint slides].