Employment law activity that shaped 2016
And why you shouldn’t expect 2016 to stay in the past
It’s that time of year again: employers and HR professionals are dutifully recording another year in the books and looking back over the events of 2016. As we approach 2017, looking back over the past year can help ensure employers didn’t miss something, but may also aid in preparing them for the coming months; 2016’s themes aren’t likely to be discarded as easily as its corresponding wall calendar.
A huge influence on many employers this year, the Department of Labor’s change to the required minimum salary for employees exempt under the administrative, executive, or professional exemption will follow most employers well into 2017.
While the increased minimum salary requirement was effective on December 1, the new year should have employers carefully monitoring any classification changes. Keeping the lines of communication open with newly non-exempt employees is a good way to ensure that the transition is and remains smooth.
Gaining attention early in March with a claim filed by the U.S. Women’s Soccer Team, the issue of pay equity refused to be ignored in 2016. Laws were passed at the state level and also for federal contractors, forbidding employers from taking action against individuals for discussing wages.
Additionally, the Equal Employment Opportunity Commission (EEOC) recently finalized revisions to the EEO-1 report, requiring employers with 100 or more employees to add pay information to the data required to be submitted (beginning with the report to be filed in March 2018).
Allowing employees to discuss pay and requiring compensation as part of reporting make it easier for discriminatory disparities in pay to be discovered by employees and federal agencies.
On announcing its strategic enforcement plan for 2017-2021, the EEOC continues to list “ensuring equal pay protections for all workers” as a priority.
The EEOC paid special attention to retaliation charges this year, revising its guidance for processing and investigating them and potentially making it easier for employees to prove that an employer had retaliatory intent.
Meanwhile, retaliation continues to be the most common charge filed against employers, with 45 percent of charges including such a claim. With the agency’s sustained focus, and the incidence of charges unlikely to decrease, a focus on preventing retaliation would be wise in 2017.
Independent contractor relationships
Companies like Uber and Lyft faced scrutiny in 2016 as courts considered whether independent contractor workers were properly classified. While utilizing independent contractors is certainly possible for employers, establishing such a relationship is not a means to avoid employment laws.
Employers must continue to carefully evaluate whether employer-employee relationships exist or whether an independent contractor relationship is truly in place.
A theme in any year, this year’s discrimination focus concentrated on discrimination based on sexual orientation, gender identity, and national origin.
Some state laws protect individuals from discrimination based on sexual orientation or gender identity. While courts have not consistently agreed with its stance, the EEOC has taken the position that such discrimination is illegal under Title VII of the Civil Rights Act.
The EEOC also issued guidance addressing national origin discrimination in 2016, and the agency’s strategic enforcement priorities for 2017-2021 identify discrimination based on religion and national origin as emerging issues that it plans to continue to prioritize.
From Mary Borsecnik at J. J. Keller & Associates Inc.