Legal – Page 9 – Workforce

June 16, 2020June 29, 2023

Everything you need to know about the LGBTQ discrimination decision in 5 quotes

lgbtq, legal, discrimination, diversity and inclusion

June is Pride Month. If you thought the month’s biggest LGBTQ news was Nickelodeon tweeting that SpongeBob was part of the LGBTQ+ community, you have another thing coming.

On June 15, in Bostock v. Clayton County, the United States Supreme Court clearly, decisively and unequivocally held:

An employer who fires an individual merely for being gay or transgender violates Title VII.

The Bostock majority opinion is 33 pages long. I’ll break it down for you in five key quotes.

1. “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a longtime employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”

2. “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

3. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

4. “There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”

5. “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.… ‘Sexual harassment’ is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Same with ‘motherhood discrimination.’ Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.”

(Bonus wishy-washy quote, from Justice Kavanaugh’s dissent: “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”)

There has not been a more significant employment law decision in over 22 years. It might be that long or longer before we see another of this import. Bostock is worthy of celebration because it finally puts to rest any open issue that employers can insidiously and intentionally discriminate against their LGBTQ employees.

June 15 is a day worth celebrating because it will forever be the day that our LBGTQ brothers and sisters finally gained their civil rights at work. It was long overdue.

Employers, take heed. If you are still among the group of businesses that discriminate against LGBTQ employees, you are violating the law. This is no longer an open question. Case closed.

June 15, 2020June 29, 2023

COVID-19 is not an excuse for age discrimination

Consider these headlines:

While there’s still a lot we don’t know about COVID-19, one of the things we do know for sure is that is much more greatly impacts people age 65 and above.

Indeed, according to the CDC, 80.6 percent of all coronavirus deaths are in that age bracket. These fatality rates might explain why you might want to protect your older workers by forbidding them to come into work or by placing them on leaves absence.

Here’s the thing, however. Employment discrimination laws hate paternalism. While you might be acting from a place of good intentions to protect your older workers from a potentially deadly exposure of COVID-19 by keeping them away from the workplace, that’s not your choice to make. Only the employee can make that choice.

The EEOC confirmed this guidance in an updated FAQ on COVID-19 and antidiscrimination laws it published late last week.

The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

If you force older workers to stay away (even if it’s for their own protection), you are almost certainly committing age discrimination. Their health, their choice. Don’t make it for them.

June 15, 2020June 29, 2023

Ease compliance concerns with workforce management software

compliance; workforce management software

Ask an HR pro how to reduce compliance risk and you’re likely to get one of two responses: a long, silent stare from beneath a furrowed brow or a finger pointing directly to a floor-to-ceiling shelf of thick binders and the two-word utterance of, “Start there.”

In other words, addressing how to reduce compliance risk is complicated. It can’t be digested over a bagel and coffee or assimilated during a five-minute confab in the conference room.

Many workplace laws, regulations and guidance governing compliance risk date back to the early 20th century. Sorting through federal, state and local workplace regulations is a skill that develops over a career through a variety of sources. A key tool among those sources is workforce management solutions designed to navigate and track the daunting web of regulatory compliance issues that employers face on a daily basis.

Configured for national, state and county labor laws, Workforce.com’s workforce management software integrates with existing human capital management and payroll systems to help reduce compliance risk through seamless workforce automation. To remain compliant and stay protected from unnecessary and costly litigation, there are several issues that employers should be aware of.

Employee classifications

Accurately classifying workers continually draws the attention of state and federal agencies that are laser-focused on enforcement. The risks of worker misclassification can be costly and subject companies to fines and back taxes that can total as much as 100 percent of the employment tax due.

When some employees work more than 40 hours per week, labor laws state that based on that worker’s classification employers are responsible for paying overtime.

Workforce management software helps employers determine who is eligible for overtime and track employees’ hours, as the federal Fair Labor Standards Act divides workers into exempt and non-exempt status.

Exempt workers: Typically receive a salary and employers are not obligated to pay exempt workers overtime.
Non-exempt workers: Typically receive hourly pay and are eligible for overtime if they work past 40 hours in a week.

Employee leave

Sorting through the specific types of paid leave that are required by law and those provided voluntarily by employers can be confusing. The Family and Medical Leave Act regulates reasonable amounts of unpaid, job-protected leave such as the birth of a child or to care for a sick family member.

The FMLA and the Fair Labor Standards Act, however, does not regulate sick pay, vacations and paid time off. That time away is voluntarily provided by the employer yet still must be tracked.

Employee safety

You know those safety kits scattered through the office? Virtually all employers must follow the Occupational Safety and Health Administration’s regulations preventing and responding to emergencies in the workplace. Employers must have a first-aid kit on site, and they also must let employees know about hazardous materials in the workplace, although Phil from accounting’s syrup-thick coffee is exempt. Though it probably shouldn’t be.

Employee pay

Payroll is one of the most regulated functions in an organization that must meet federal, state and local requirements, according to the American Payroll Association.

Government agencies require:

Tax withholding and reporting.
Timely pay of employees to meet wage and hour law requirements.
Withholding child support and garnishments from wages.
Ensuring new employees are eligible to work in the U.S.

Wage and hour settlements continue to be a costly compliance issue for businesses. Investing now in workforce management solutions beats spending more money later should a lawsuit arise. Technology can help HR professionals and executives solve the vexing problem of how to reduce compliance risk.

With increased government scrutiny and potential for fines and penalties, it is more important than ever to ensure workforce compliance. Workforce.com tracks compliance and regulatory obligations, ensures accurate pay and maintains a detailed audit trail.

June 9, 2020October 7, 2021

Paycheck Protection Program Flexibility Act brings loan forgiveness changes

COVID-19, coronavirus, public health crisis

On June 5, 2020, President Trump signed into law the Paycheck Protection Program Flexibility Act of 2020. The PPPFA — as its name suggests — offers greater flexibility for employers receiving loans under the CARES Act’s Paycheck Protection Program (PPP) by extending time frames, expanding exemptions and modifying other PPP terms affecting potential loan forgiveness and repayment.

Here are the key provisions of the PPPFA:

Extended “Covered Period” for Using Loan Proceeds

Under the PPP, borrowers needed to spend PPP loan proceeds on approved expenses within a period of eight weeks to potentially qualify for loan forgiveness. The PPPFA expands this period so that borrowers may now spend their PPP loan funds (a) over a period of 24 weeks from the origination of the loan, or (b) by December 31, 2020, whichever is earlier.

Also read: How to reduce compliance risk

Borrowers are, of course, still free to use the original eight-week covered loan period in the PPP or “alternative payroll covered period” provided in the U.S. Small Business Administration (SBA) loan forgiveness guidance. (A link to the earlier client alert discussing SBA loan forgiveness guidance appears here.)

Reduced Percentage of Loan to be Spent on Payroll for Forgiveness

The PPPFA states that 60 percent of PPP loan proceeds need to be spent on payroll costs in order for a borrower to obtain forgiveness, leaving 40 percent which can be spent on qualifying non-payroll expenses.

Also read: Employers grapple with laws about work schedules

This is a reduction from the 75 percent/25 percent split which had come from the SBA guidance and should give employers some welcome flexibility to spend a greater amount of loan proceeds on rent, mortgage payments and other qualifying non-payroll expenses.

Employers should note, though, that the language of the PPPFA indicates that if an employer does not spend 60 percent of loan proceeds on payroll costs, it will not be eligible for forgiveness of any portion of the loan. As there have been questions as to whether such a significant change from the PPP was intended, Morgan, Brown & Joy will continue to monitor future developments in this area.

Expanded Exemptions from Loan Forgiveness Requirements

The PPP provided that an employer who had experienced a reduction in either employee headcount or employee salaries between February 15, 2020 and April 26, 2020 (30 days after enactment of the CARES Act) could receive forgiveness if it eliminated any reduction in headcount and salary by June 30, 2020. The PPPFA extends this June 30 date to December 31, 2020.

Employers should not, however, be lulled into thinking that they can simply restore salary levels and headcount in a single stroke on December 31 and achieve full forgiveness. The requirement of spending 60 percent of loan proceeds on payroll will require forethought about restoration of staff levels and timing of payroll costs incurred and paid.

The PPPFA also expands exemptions from the reduction to loan forgiveness corresponding to a reduction in the number of full-time equivalent employees. An employer who has experienced a reduction in FTE employees after February 15 will not see a reduction in loan forgiveness based on FTE count if it can in good faith document:

That it has been unable to rehire individuals who were employed by the business on February 15, 2020 and also unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020; or
That it is unable to return to the same level of business activity at which it was operating before February 15, 2020 due to compliance with requirements or guidance from the U.S. Secretary of Health and Human Services, CDC or OSHA between March 1 and December 31 relating to standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19.

Five-Year Repayment Period for New Loans

For PPP loans made on or after the effective date of the PPPFA (June 5), borrowers will have a period of at least five years to pay off the portion of any loan which is not forgiven. For loans made before the PPPFA effective date, lenders and borrowers may, but are not required to, mutually agree to modify the terms of an existing loan to include a minimum five-year period for repayment of any unforgiven amounts.

Extension of Loan Deferral Period

The PPPFA also expands the six-month loan deferral period created by the PPP. Repayment of a PPP loan (including principal, interest and fees) is now deferred until after the SBA has determined the borrower’s loan forgiveness amount and remitted that amount to the lender. For borrowers who do not apply for forgiveness within 10 months after the last day of the covered period, repayment of the loan begins at the expiration of that 10-month window.

Finally, in addition to the above, the PPPFA allows recipients of PPP loans to participate in the deferral of certain payroll taxes as provided by the CARES Act, which PPP borrowers had previously not been eligible to do.

The changing landscape of PPP guidance is only one of the many challenges employers face as businesses reopen and a greater number of employees return to work. Employers should consult their attorneys for assistance as legal concerns arise in workplaces in the COVD-19 era.

June 8, 2020

‘I was terminated for refusing to wear a Trump 2020 face mask.’

Ohio requires that all employees wear face masks or other face coverings as a condition to any business reopening that (subject to a few limited exceptions). The only rules are that the mask cover the employee’s nose, mouth, and chin. There are no other requirements about the nature of the mask or face covering, including its design or style.

One southern Ohio business, The Village Inn restaurant in Farmersville, is testing the mask-requirement waters by requiring its employees to wear “Trump 2020” masks.

Worse, it’s firing employee who refuse.

Or at least that’s what Kris Hauser, a former waitress of the restaurant, claimed happened to her in her viral Facebook post describing her termination.

The owner then approached me again and stated I needed to wear my Trump 2020 mask. I responded and told him I would wear it, but I would wear it inside out (which a majority of employees had been doing already for the days prior).

The owner, Scott, told me “No, you will wear it with Trump 2020 facing out for people to see.”

I told him I would not do this and he said that I needed to leave.

Your first inclination might be to say, “Jon, Ohio, like every other state besides Montana, is an at-will state, meaning that an employer can fire any employee for any reason, good or bad. And just last Thursday you told us that there are only a few states that ban political opinion discrimination, and Ohio isn’t one of them. So while many will feel that Kris Hauser’s termination is morally and ethically reprehensible, I don’t see anything unlawful about it.”

While Ohio is an at-will state, it recognizes several key exceptions to employment-at-will, including a tort claim for wrongful discharge in violation of public policy. What does this mean? I’ll let the Ohio Supreme Court explain:

In order for a plaintiff to succeed on a wrongful-termination-in-violation-of-public-policy claim, a plaintiff must establish four elements: (1) that a clear public policy existed and was manifested either in a state or federal constitution, statute or administrative regulation or in the common law (“the clarity element”), (2) that dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (“the jeopardy element”), (3) the plaintiff’s dismissal was motivated by conduct related to the public policy (“the causation element”), and (4) the employer lacked an overriding legitimate business justification for the dismissal (“the overriding-justification element”).

In other words, if a termination offends a clear public policy of the state, and the employee does not have any other remedy to redress the termination, the employee can sue in tort for the wrongful discharge.

In this case, Ohio has a clear public policy against employers influencing employees’ political opinions—Ohio Revised Code section 3599.05, which criminalizes employers that make expressed or implied threats “intended to influence the political opinions or votes of his or its employees.”

That’s exactly what The Village Inn did in imposing its “Trump 2020” mask requirement under threat of termination. And it’s not too far off the mark from Kunkle v. Q-Mark, Inc. (S.D. Ohio 6/28/13), which refused to dismiss a public policy claim based on section 3599.05, after the employer allegedly threatened employees with termination if President Obama won re-election, and allegedly fired the plaintiff after she stated she voted a “straight Democratic ticket.”

I’ve never been shy about calling out an employer that has wronged an employee. The Village Inn has wronged Kris Hauser. The internet has already spoken. I hope Ms. Hauser finds a lawyer to take her case and the courts have their say as well.

June 4, 2020June 29, 2023

Can you force employees who participate in George Floyd protests to quarantine without pay?

Yesterday I discussed the legalities of placing on an unpaid leave of absence employees who engaging in leisure mass gatherings outside of work.

What about employees who you discover gathered in mass to protest George Floyd’s murder and racial injustice? There are legitimate concerns that the mass protests taking place in cities around the country will cause an acceleration of COVID-19 spread and a spike in cases. Can you place protesting employees on an unpaid leave of absence to quarantine before they return to work?

The TL;DR answer is “yes.”

The longer answer has a couple of key exceptions and other nuances.

1/ Public employees enjoy some First Amendment protections work. In the private sector, Connecticut prohibits employers from disciplining or firing employees for exercising their First Amendment rights. California, New York, and the District of Columbia ban political affiliation and activity discrimination. New Mexico and South Carolina ban discrimination based on political opinions. And Colorado and North Dakota more broadly limit an employer from restricting any lawful off-duty activities by employees. In any of these cases, I’d have concerns about taking an adverse action against an employee for participating in a peaceful political gathering. (For rioters and looters, all bets are off no matter what.)

2/ Title VII might offer additional protections for protesters, but only if an employer treats employees of one race (say, for example, its African-American employees) more harshly than employees of another race. If an employer treats all employees the same by requiring anyone protesting to take a mandatory two-week unpaid leave of absence, then Title VII won’t offer much help.

3/ The National Labor Relations Act’s protections for employees who engage in “protected concerted activity” likely have zero application, for the reasons I discuss here.

This issue, however, is a lot more nuanced than, “The law says I can send employees home without pay while they quarantine, so I will do so for anyone engaging in behavior outside of work that placed them at risk for COVID-19.” There is no easy answer to this question. I believe that you are taking a risk of injecting COVID-19 into your workplace if you allow these employees to return to work on the heels of protesting (no differently than returning a weekend mass-gathering partier). The question is whether you pay them for their time off. You have two options, which depend on where you come down on the safety vs. racism spectrum:

1/ Treat George Floyd protesters no differently than any other person who gathers in a large group outside of work by sending them home for two weeks without pay. The safety issues are identical. Mass protesters could turn into super-spreaders of the virus, including in your workplace. We are still in the midst of a pandemic, and no matter how large of a problem system racism is, and no matter how awful George Floyd’s murder was, we cannot lose sight of the big coronavirus picture, lest we have another spike in cases and lose even more lives.

2/ Pay George Floyd protesters for their mandatory leaves of absence. These employees were not getting their weekend jollies on, but were exercising their political dissent over a vitally important issue. You can take a stand as an employer against the racism over which they were protesting by paying them for their mandatory LOA quarantine. It also prevents your company from being painted as pro-racism by a viral online mob based on a perception (accurate or not) that you are punishing these employees for protesting this important issue.

Me? I’m longing for a day when we don’t need to even have this discussion because both the pandemic and racism are history.

June 3, 2020June 29, 2023

Do Lake of the Ozarks employees sent home from work qualify for paid sick leave under FFCRA?

Last week I discussed how to handle employees who are not social distancing outside of work.

My thoughts were spurred by videos of employees partying over the Memorial Day weekend at Lake of the Ozarks and elsewhere around the country.

I said the following:

I would also place any employee who violated social distancing rules outside of work (whether the information is volunteered on a self-assessment or discovered through a viral video) on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment.

It looks like I might have a reader in Lincoln County, Missouri.

According to KSDK, employers are mandating unpaid leaves of absence and quarantines for employees who spent their holiday weekend amid the throngs at Lake of the Ozarks, The story also quotes an attorney who says that placing an employee on an unpaid leave of absence, under those circumstances, might violate the FFCRA’s requirements for paid sick leave for an employee “advised by a health care provider to self-quarantine due to concerns related to COVID-19.”

I completely disagree, and the Department of Labor has my back.

Take a look at Question 77 to the DOL’s FFCRA Questions and Answers:

May I take paid sick leave or expanded family and medical leave under the FFCRA if I am on an employer-approved leave of absence?

It depends on whether your leave of absence is voluntary or mandatory. If your leave of absence is voluntary, you may end your leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents you from being able to work (or telework). However, you may not take paid sick leave or expanded family and medical leave under the FFCRA if your leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents you from being able to work (or telework).

In other words, if an employee’s leave of absence is the employer’s choice, as is the case in the Lake of Ozarks example, then the employee does not qualify for FFCRA paid sick leave, because it’s not a COVID-19 medical recommendation or quarantine that’s preventing the employee from working but the leave of absence.

It’s no different from a furlough, for which employees also do not qualify for FFCRA paid leave. As long as you place an employee on leave before they tell you they’ve been advised by a health care provider to self-quarantine because of COVID-19 concerns, you shouldn’t have to worry about paying the employee for that leave under the FFCRA.

June 2, 2020June 29, 2023

Justice Department indicts employee for COVID-19 workplace fraud

In mid-April the FBI warned employers to be on the lookout for fake COVID-19 diagnoses, doctors’ notes, and other coronavirus-related documents from employees.

The Justice Department has now indicted the first employee for committing this new breed of fraud.

The Justice Department provides the details:

Santwon Antonio Davis has been charged with defrauding his employer by allegedly faking a positive COVID-19 medical excuse letter, causing the employer to stop business and sanitize the workplace. Davis has since admitted that he did not have COVID-19. …

According to the … charges and other information presented in court: The defendant, who was employed by a Fortune 500 company with a facility located in the Atlanta, Georgia area, falsely claimed to have contracted COVID-19 and submitted a falsified medical record to his employer. In concern for its employees and customers, the corporation closed its facility for cleaning and paid its employees during the shutdown. This caused a loss in excess of $100,000 to the corporation and the unnecessary quarantine of several of the defendant’s coworkers.

You can read the full affidavit submitted by the U.S. attorney in support of the criminal complaint here. (Disclaimer: Mr. David is presumed innocent until proven guilty.)

This is as good as time as any to remind you of the steps can you take if you think an employee is faking a coronavirus diagnosis.

Pay attention to inconsistencies on notes and other documents in fonts and spacing, or grammatical or spelling errors.
Look for computer-generated, versus hand signatures.
Compare legitimate medical excuse letters from health care providers to be aware of their typical format and structure.
Contact the medical provider to authenticate the document (after first providing the employee the opportunity to authenticate).

Be alert, because it’s fair to assume that as more employees return to work, more employees will try to take advantage.

May 26, 2020June 29, 2023

When an employee isn’t social distancing outside of work

How did you spend your Memorial Day weekend? Mine was way more mundane than years past.

I watched my nephew receive his high school diploma and pre-record his valedictory address in an individual, family-only ceremony. We walked the dogs a bunch. We went to Lowe’s, masks on faces (the first store in which I’ve been inside other than a grocery store in over two months). I barbecued for my wife and kids.

Other people chose less COVID-appropriate holiday weekend activities.

Scenes like this one were repeated all over the country. Will you be surprised when COVID-19 cells spring up in two weeks linked to these mass gatherings? Because they will.

Here’s my question. What do you do if you see one of your employees in one of these social-gathering viral videos? Do you welcome him or her back into the workplace today with open arms?

I would not. I’d screen employees for risky behaviors during the holiday weekend or otherwise. Ohio already requires all businesses, as a condition to reopening, to “conduct daily health assessments by employers and employees (self-evaluation) to determine if ‘fit for duty.’” With the country reopen and summer upon us, I’d recommend adding two questions to this self-assessment

Did you take part in a social gathering in which you were within 6 feet of others? Being within 6 feet of others who do increases your chances of getting infected and infecting others.
If you attended a social gathering, was everyone around you wearing a mask or facial covering? Others within six feet of you not wearing masks increases your chances of becoming infected.

I would also place any employee who violated social distancing rules outside of work on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment. (According to NBC News, the Kansas City health director has called for self-quarantine of all Lake of the Ozarks partiers.)

If an employee returns after being at one of these weekend parties and then tests positive, there is a really good chance that you will have to shut down your entire business (or at least a sizable part of it). Is this a risk you want to take? I wouldn’t, which is why I’d ask the questions and place anyone on an unpaid quarantine leave who answers “yes” or who I otherwise discover violated social distancing rules (such as if I see them on a viral video or photo.

We all have a social responsibility to help stop the spread of coronavirus. If an employee fails to play his or her part and chooses to act irresponsibly, I am not going to lose any sleep by sending them home for two weeks to protect the rest of my employees and their families, and my business and its continuing operations.

May 25, 2020July 11, 2023

How to reduce compliance risk

Compliance is complicated and time-consuming, and employers don’t have the time to become experts in every rule or regulation that impacts their business. For any organization, addressing how to reduce compliance risk requires the right external and internal resources.

Failure to adhere to compliance requirements exposes an organization to lawsuits, costly fines and other penalties as well as negative publicity and harm to business reputation, noted XpertHR in its report “Top HR Compliance Challenges for 2020.” The organization surveyed 700 HR professionals, 28.3 percent of whom said recruiting and hiring was their top concern. Meanwhile, 16.2 percent said so about benefits and 10.1 percent about pay and scheduling issues.

Of those challenged by pay and scheduling issues, 13.3 percent said they are extremely challenged by the misclassification of exempt and non exempt employees, compared to only 6.6 percent in 2018. And 9.8 percent feel extremely challenged by state and local minimum wage increases, down from 12.9 percent in 2017.

In 2020, 21 states and many localities — including 20 in California alone — will be impacted by minimum wage increase, the report noted.

Also read: Labor compliance software sorts through complex legal issues

XpertHR Legal Editor Beth Zoller said that it’s also important for employers to be proactive about trending issues like harassment training, hairstyle discrimination, pregnancy accommodations and prohibiting pre-employment drug testing.

No matter what the compliance issue, there are many ways to efficiently address how to reduce compliance risk, ultimately benefiting both employees and employer.

Also read: Regulating recruiting amid constant technological innovations

Workforce planning

In the XpertHR survey, 8.3 percent of respondents said workforce planning was their top compliance concern. Zoller defined “workforce planning” as “the continual process an employer uses to align the organization’s business needs and priorities with those of its workforce to make sure it can comply with legislative, regulatory, service and production requirements and organizational objectives.”

Among today’s global workforce, she said, employers must understand both the internal and external factors that impact workplace processes like recruiting, retention, training and performance management.

These internal and external factors include the rise of flexible working arrangements and remote workers, the use of independent contractors to replace traditional workers, and the use of technology to increase communication and productivity, Zoller said. All these are areas in which employers must be careful to be compliant with the various regulations, such as those regulating remote work, classifying employees correctly.

Also read: Tax compliance a key consideration for remote work policies

Benefits compliance

Benefits compliance was the second biggest compliance concern for employers, according to the XpertHR survey. Dorian Smith, national practice leader for Mercer’s Law & Policy Group, specializes in health and welfare benefits.

There are different trusted advisors HR or workforce management professionals can reach out to for different buckets of compliance, he said. For health benefits, representatives from the insurance carrier or third-party administrator can provide guidance. Attorneys specializing in ERISA can help answer retirement-related questions. Complying with a variety of regulations means partnering with a combination of different advisors that cover an employers’ bases.

Employee leave laws

Even before the COVID-19 pandemic introduced new employee leave requirements through legislation like the Families First Coronavirus Response Act, the paid leave landscape in the United States was a “hornet’s nest,” Smith said. COVID-19 rules simply added another layer to an already complicated paid leave environment, where employers often must pay attention to different state and local laws that could affect their business.

Whichever HR or workforce management professional deals with paid leave at an organization should maintain a relationship with the carrier that administers the leave program, and a major carrier should have an understanding of the paid leave environment, Smith said. Still, while they can provide support to navigate the organization through compliance, they generally don’t provide strategic support, he added.

He gave an example of an organization that is looking to shut down a location. They may have the right to do so compliance-wise, but strategically they should think about the make-up of the workforce in that location. Are they predominantly older or part of another protected class? That is a strategic way to look at this situation, since an organization does not want to be exposed to a discrimination lawsuit.

Many areas of compliance are “part compliance, part strategy,” he said. “You can’t do strategy without thinking about compliance.”

Smith also suggested that organizations should engage with their internal or external legal counsel before they make decisions regarding paid leave strategies. Smaller organizations will likely need more external help because they may not have internal resources. But it doesn’t stop there.

“This issue isn’t isolated to smaller firms. Even larger employers with ample internal resources will need outside help,” Smith said.

Mercer, for its part, began a toolkit during the COVID-19 pandemic that is updated every week to reflect what state and local paid leave laws have been amended or created. This is meant to help organizations stay current on changing laws.

On XpertHR’s survey, 5.7 percent of respondents said that “leaves of absence” was their No. 1 compliance concern. Of these people, 28.9 percent said they are extremely challenged by keeping up with rapidly changing leave laws, up from 11.2 percent in 2017 and 19.5 percent in 2018. And 16.1 percent said they feel challenged in determining which leave laws apply to their organization, up from 8.3 percent in 2017.

Depending on size and location, an employer may be required to comply with a variety of different leave laws, Zoller said. These leave laws include paid sick leave, paid family leave, bereavement leave, domestic violence leave, jury duty leave and military leave.

She suggested that employers invest in online compliance tools to help them stay up to date with changing laws and requirements on the federal, state and local level.

Best resources

Considering how to reduce compliance risks may be daunting. But regardless of the type of compliance issues an organization has, there are resources available. These resources include:

Internal or external legal counsel.
Online compliance tools.
Your insurance carrier.
Consulting firms that specialize in your compliance area of interest.

Don’t get bogged down by weighty compliance responsibilities. Creating smart partnerships can help an organization stay compliant.