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I view the New Year as an opportunity to leave the past behind and look to the upcoming year as a blank slate filled with possibilities. Weight loss, more time to relax (hopefully a slam dunk when starting at zero time relaxing in 2016), less stress (see previous comment on relaxing), etc. I even have a multi-year goal. I plan to read a biography of each U.S. president — in order — by the end of 2018. Something my 19-year-old daughter, Ellie, calls, “adorable … geeky … but adorable!”
With 2017 full of possibilities for business and HR professionals, it’s also bound to be filled with interesting events and surprises for those of us focused on legislative and regulatory activity. As we well know, on Jan. 20, 2017, the landscape in Washington is changing in unprecedented ways.
Regardless of which side of the aisle you’re on, the upcoming Trump administration — and Republican majorities in both chambers — means uncertainty at the federal and state levels. Questions abound. What will the next secretary of labor do with the revised overtime rule? What will the National Labor Relations Board (NLRB) look like and do? Who will be the next justice appointed to the Supreme Court, and how will upcoming appointments to the federal bench affect the interpretation of laws impacting employers of every size?
In New York state, continued — or even expanded — “localization” of employment laws is likely. In the recent past we’ve seen a wage board appointed by the governor, resulting in a minimum wage increase specific to the fast food industry, the creation of a multi-tiered minimum wage, and the eleventh-hour adoption of a corresponding multi-tiered minimum salary threshold for the executive and administrative exemptions. And don’t forget about New York’s Paid Family Leave Benefits Law (PFLBL) taking effect in 2018 that’s completely out of alignment with the federal Family and Medical Leave Act (FMLA).
Although I’ve declared my days as a prognosticator over, with my deluxe model crystal ball safely stored in the closet, I do have a few ideas on what may be important issues to watch as 2017 unfolds. So, here is my Top 5 list for 2017:
5. The Trump Effect
Although named after our soon-to-be 45th president, it is more of a force than a single individual. It includes not only President Trump’s actions once in office, but also what others will do pre-emptively and in response to those actions. Uncertainty will continue to prevail, so what is an employer to do? It may appear simple, but ongoing compliance with current laws, at least until they are changed, and monitoring developments are the best courses of action. Also, maintain adequate employee records and ensure all employment actions are strongly supported and well documented. Then, hold on tight because change is likely to be fast and furious.
4. Pay Equity
Equal pay issues were a significant agenda item for the Obama administration, with actions including new rules for federal contractors and new data collection requirements set by the EEOC. Further, states like California, Massachusetts and New York passed equal pay legislation. How the Trump administration will address this topic remains unknown. However, regardless of federal action, it’s likely New York will continue to aggressively confront this issue through legislative and regulatory actions. For their part, employers should consider conducting pay audits to ensure compliance with existing requirements, and prepare for future regulatory action.
3. Employee Leave Laws
Quickly expanding local, state, and federal leave laws and their complex relationships will continue to be especially challenging for employers and HR professionals. Examples include New York City’s Paid Sick Leave Act (PSLA), New York state’s Paid Family Leave, the FMLA, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The EEOC further complicated the matter with its 2016 guidance, advising employers to consider disability-related leave requests as an accommodation under the Americans with Disabilities Act (ADA), and that such requests must be treated the same as requests unrelated to a disability. We may also have received a glimpse into the future, with Ivanka Trump speaking in support of federal paid family leave during the campaign.
It is imperative for employers to correctly identify the appropriate leave laws in each case. Keep leave policies and procedures, the employee handbook, and all mandated workplace notices current to ensure employees know and understand their rights. Also, supervisors should be trained on internal leave policies, procedures and laws, as well as how to handle leave requests.
2. Form I-9
There is a new I-9 form, which employers must use exclusively beginning no later than Jan. 22, 2017. In addition to the traditional paper form, USCIS now offers a fillable PDF form that employers can download. This form includes drop-down lists and calendars, on-screen instructions for each field, and access to detailed instructions. However, be cautioned that the fillable form may not work with all browsers or PDF software, which could lead to some frustration. Also, once sections one and two are completed, the form must be printed for signatures and dates.
But that’s not why the much-maligned and misunderstood Form I-9 is on my list. With the topic of undocumented workers being a central theme of the Trump campaign, this is one area where continued, and even broadened, enforcement is expected. Those of us who are a little longer in the tooth may remember a time when Immigration Control and Enforcement (ICE) Form I-9 audits were rare. At that time, ICE agents were otherwise occupied with more hands-on enforcement of the immigration laws. To pick up the slack, federal Wage and Hour investigators included a review of the employer’s I-9 forms in their audit. That stopped when the Obama administration hired an entire force of ICE investigators dedicated to I-9 audits.
Now, imagine if the new administration keeps the existing ICE auditors, and again tasks the Wage and Hour investigators with reviewing I-9 forms for compliance. Employers should conduct an audit of existing I-9 forms to ensure the forms are correct, complete, and in compliance with all regulatory requirements. It’s also important to note the sometimes-confusing I-9 retention requirements, and to follow appropriate retention and destruction policies and practices.
1. Wage and Hour Regulations
The much-anticipated update to the federal overtime regulations, increasing the salary threshold for the white-collar exemptions, was halted by a federal court before its effective date of Dec. 1. While this was good news for many employers, especially those who continued to procrastinate on making the necessary changes, other employers found the last-minute action frustrating. (However, to ensure employers were not completely off the hook, on Dec. 28 the New York state Department of Labor increased the state’s minimum salary threshold for the executive and administrative exemptions, effective just three days later.)
It remains unclear what steps the Trump administration will take regarding the revised overtime rule. Based on Secretary of Labor nominee Andrew Puzder’s past comments, it appears unlikely the revised rule will be supported. Employers should review all positions currently classified as exempt, ensuring the classification is correct and the employees are paid at least the minimum salary required under the applicable state or federal rules. New York employers should also remain aware of the scheduled increases in both the minimum wage and minimum salary thresholds effective Dec. 31 in each of the next few years.
This list is far from all inclusive. Obviously missing are discussions of the Affordable Care Act, diversity and transgender issues, cyber security, predictive scheduling, and a host of other issues employers should keep in mind. That means I still have plenty to write about in the coming months!
Frank A. Cania, M.S.Emp.L., SPHR, SHRM-SCP, is president of driven HR, A USA Payroll Company. Located in Pittsford, NY, driven HR provides human resource consulting services including HR audits, outsourced HR management, employee handbooks, and a variety of other services. Frank concentrates on wage-and-hour, FMLA, ADA, Title VII, and Form I-9 compliance, as well as workplace investigations. This article is brought to you by the Rochester affiliate of the National HR Association, a local professional HR organization focused on advancing the career development, planning, and leadership of HR professionals.
