The Top 6 Workplace Legal Trends That HR Needs to Watch Out For

With every new year, new legislature is passed into law. For HR managers – who have a ton of work to do on a daily basis as it is – it can be a challenge to keep up to date on what laws are coming, what have just passed, and, most importantly, what workplace legal trends HR needs to pay the most attention to.

To help with this, we’ve put together a list of legal trends that HR managers should keep an eye out for in 2018.

Now, it’s important for us to note that we are not lawyers and the laws mentioned in this article should be reviewed by your legal team before you take action. This isn’t meant to be a guide on how to handle these laws with new policies. Instead, it’s a brief, high-level overview of what laws and legal trends are coming out and what ones are going to be the most important. If any of these laws impact your organization, please seek professional legal counsel.

Okay, now that that’s out of the way, let’s take a look at what new laws (and suspected laws) will come into play this year.

First Up, Let’s Take a Look at California

Before we get into more general laws that impact the whole country, we need to first examine what is going on in California.

This year California has passed numerous laws that impact the workforce. Here’s a brief rundown of what was passed, according to the Society for Human Resource Management (SHRM):

• AB 168: Changes the way salary histories are handled during job interviews. Specifically, it bans employers from asking what the applicant made in their previous position. You can read more about it here.
• AB 450: Changes how employers handle immigration enforcement issues. Specifically, it forces employers to call for subpoenas and warrants before immigration enforcement can take action on their employees. Read more about this here.
• AB 1008: Changes the way employers hire employees with criminal backgrounds. Basically, the law states that employers will not be able to use criminal history as a reason to not offer a conditional form of employment. If the employer then decides to not go with the employee because of their criminal history, new steps are now required to do so legally. Read more here.
• SB 63: Changes new parent leave. The law mandates that companies with 20-49 employees most give new parents 12 weeks leave during the first year. Read more here.
• SB 396: Changes how sexual harassment training works in companies with more than 50 employees. This law adds sexual orientation, gender expression, and gender identity harassment to sexual harassment training. Read more here.

Now, why would we start a list of laws by examining some from only one section of the country?

Well, typically what happens is that one state will pass a law and then more states follow suit by introducing legislation that is either the exact same thing or very close to the same thing. This means that the workforce legal trends in one area of the country cannot be ignored.

“Since California seemingly always needs to put its spin on things, national employers may find themselves dealing with multiple versions of these laws nationwide and multiple versions within California,” Michael Kalt, an attorney from Wilson Turner Kosmo in San Diego, told SHRM while explaining how California is playing catch-up with some laws but also introducing new ones that employers countrywide need to take note of.

So, if you are in California, you probably have already been made aware of these laws. However, those outside of the state should also keep an eye out for similar laws coming to their area.

Let’s dive into some of the more wider reaching laws and trends, too.

A Lot Is Happening With Paid Leave

For a long time now, paid leave for new parents has been largely dictated by companies who offer leave as a corporate perk. We’ve talked about this a lot in other articles about trends in PTO policy and corporate perks in general. However, it’s slowly becoming law in many states.

In fact, paid leave for various reasons – including bereavement, educational needs, and others – have been proposed to federal lawmakers as well.

“At the federal level, for example, the proposed Parental Bereavement Act would entitle eligible employees to up to 12 weeks of leave during any 12-month period due to the death of a child,” reports Lisa Wirthman with Forbe’s ADP Voice column.

“Separately, the federal Family Leave for Parental Involvement in Education Act would enable any employee covered by the Family and Medical Leave Act to take time out to participate in his or her children’s and grandchildren’s educations.”

Wirthman goes on to explain that paid sick leave is also changing and that employers should watch out for new laws coming from the Department of Labor (DOL) in the near future about these issues.

So far, according to legal experts at SHRM, New Jersey, California, and Rhode Island offer paid family leave while Washington state and DC will have similar laws going into effect soon. New York City will also see paid sick leave laws coming into action very soon.

The takeaway here is that many, many laws are being passed in states across the country. Make sure that you pay attention to your state’s new laws to keep your company in compliance. Also, just to hammer it home, giving your employees paid leave – whether it’s a pool of PTO time, specific parent leave options or other forms – is a giant benefit that will be noted by your staff and even the talent you want to attract. So, you might want to implement these policies even if the law isn’t passed yet.

Sexual Harassment Training and Issues

The latter half of 2017 was rife with sexual harassment scandals. Though most of these stories took place in Hollywood, they will soon start to impact state laws and corporate policies across the nation as the stories continue to pour out.

“The impact from what’s happening in Hollywood and in politics will trickle down, and we may see new harassment laws and more training mandates at the state level,” explains Matthew Deffebach, an attorney from Haynes and Boone in Houston, to SHRM.

SHRM goes on to say:

“Currently, California and Connecticut require businesses with 50 or more employees to provide sexual harassment training to supervisors. Businesses with 15 or more employees in Maine must provide training to all workers at the start of their employment. In other states, such as Massachusetts, Rhode Island and Vermont, employers are encouraged—but not required—to provide training.”

Like we mentioned in the California section, sexual harassment policy will likely transform for many HR departments across the US with some including policies that protect gender identity, sexual orientation, and gender expression.

While many of these laws are not passed yet, it’s definitely a good idea for HR departments from all over to rethink their sexual harassment policies to ensure they are ready for when changes do come and also because this issue is so hot-button that it makes sense to take a look at your policy and ensure it covers all that it can.

The Rise of Legal Marijuana

Marijuana laws are among some of the fastest changing in the country. California just made it legal to recreationally use marijuana and a slew of other states are quickly passing similar laws.

Before now, marijuana use has been illegal nearly everywhere, making it easy for HR departments to enforce. As more states change this, workplace policies will need to change as well.

“Marijuana remains illegal under federal law. However, there are many states, and a few cities, which have legalized medical and recreational marijuana – creating challenges for employers, as these laws “sprout up” (pun intended) across the country,” reports Barbara E. Hoey and Alyssa Smilowitz from LaborDays.

“Also, prior to now, the caselaw was quite clear – an employer could discipline an employee for lawful use of marijuana. See Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015). But the law appears to be changing, as recent cases indicate that courts are beginning to recognize that employees who are lawful users of marijuana are entitled to some protection.”

For many employers, marijuana policy will change in the upcoming years, making it an important thing to consider right now, especially if you have employees working inside states where it is legal to use in various forms.

While there is no surefire piece of advice we can offer about how to deal with these issues in your business, it makes sense that many of these policies will be similar to alcohol policies where employees cannot come to work under the influence and cannot use these substances in the workplace.

HR managers also need to consider what to do with employees who travel to states where marijuana is legal. Is it okay for these employees to partake when it is legally available? Will a drug test after that mean that they will receive disciplinary action?

These questions remain unanswered and are even legally strange to deal with. As LaborDays reports, there are many caselaws to examine about these issues and HR managers should take a look at them to decide how to handle these situations, which will only start to increase as more states legalize.

“When employees walk on to the job, they become an employer’s responsibility,” stated Ingrid Fredeen J.D., vice president of advisory services at NAVEX Global, in an article for SHRM. “Use that impacts an employee’s ability to do their job, quickly and legitimately becomes a concern for the employer.”

“Reconciling varying state laws on everything from legalization, permitted use and lawful drug testing is a challenge.”

The takeaway here is that employers will likely have the final say even after laws are passed. However, it’s important that you stay current with what’s happening in your area to make sure that you make policies that are legally sound. The rise of legal weed also means that many companies will have to undo their ‘one-size-fits-all’ drug policy.

You can read all of the caselaws used in the LaborDays article here.

Minimum Wage Increases

Like legal marijuana, many states are starting to change their standard minimum wages, too, and it’s important to make sure your company follows suit.

“With the federal minimum wage remaining just $7.25 per hour, more and more states have opted to implement their own, higher rates that local employers must observe,” reports Dave Jamieson in an article for Inc.

“Many of the bumps slated for New Year’s Day come courtesy of recent ballot initiatives approved by voters or bills passed by statehouses, in red and blue states alike.”

According to Jamieson, a whopping 18 states will see minimum wage increases this year, meaning that there is a big chance you might be affected.

What makes these laws so hard to keep track of is the fact that they are at the state-level and every state is increasing minimum wage by a different amount. When you think about recent minimum wage headlines, we often return to the fight for $15 per hour. However, many of the states upping their wages are only doing so by fractions of a dollar.

Take Missouri, for example. The state’s current wage is $7.70. If their new minimum wage is passed, it will rise to $7.85, an increase of 15 cents. In other areas of the country, such as Maine, the wage will increase by a whole dollar.

This means that you need to stay current with your state’s decisions if you have employees working for minimum wage at your business. If you pay higher than minimum already, you should be fine in many cases. However, if your state drastically increases the wage, you may still be impacted. Still, the best course of action is to keep up to date on your local legislature.

New ‘Fair Scheduling’ Laws In Coastal States

Fair scheduling laws are expected to start making their way through the coastal states sometime this year, too.

What’s that mean?

Well, in many lower-paying jobs – those typically found in hospitality, retail, and food service – scheduling is a big deal and is often handled poorly with managers having to quickly change employee’s schedules moments before they are meant to be enacted.

For example, say you work at a hotel and you have to be at work on Thursday at 3:00 PM. Based on what happens that day, your manager can call you in early, cancel your shift or change it in many other ways that makes it impossible to plan the rest of your life. This is especially challenging for those with children, other jobs or any other obligation outside of that one workplace.

“In lower-wage jobs, unpredictable schedules are becoming increasingly common. As employers struggle to meet demands with limited staff, many workers end up facing schedule changes at the last minute, and are afforded little input into the days or times they work,” reports Jill Barber from Ceridian.

“When shifts fluctuate wildly from week-to-week, paychecks rise and fall correspondingly. Fair scheduling laws are intended to create more stability for hourly workers who may be juggling the demands of their jobs while also caring for families, working second jobs, or going to school.”

So, to combat all of this, some states have started putting together laws that aim to make scheduling more fair for the workers.

These laws are trying to change how schedules are given to employees, how long employers have to change an employee’s schedule, a reduction in “clopenings” – a scheduling practice where an employee closes at night and opens in the morning – and other aspects.

Most of the proposed changes are logical, attempting to make scheduling a practice that is easy to understand and not so easy to change at the last moment, allowing employees to have more control over their lives.

Right now, these laws are only being considered or passed in coastal states. But, like we mentioned above, California and other west coast states typically adopt laws quicker and the rest of the country follows at varying rates.

“Currently, only a handful of cities (Seattle, WA, and San Francisco, Emeryville and San Jose, CA) have passed scheduling laws. But proposed bills are beginning to spread throughout the coastal states, which is typically where trends begin,” Barber continues.

New Overtime Regulations

While we’re on the topic of scheduling, new regulations regarding overtime time pay are starting to emerge from the Department of Labor (DOL).

First, let’s understand the basics.

There are two types of employees right now: exempt and nonexempt. An exempt employee is an individual who does not get paid for overtime hours – anything over 40 hours per week. A nonexempt employee is a person who does get paid for overtime when they work above 40 hours.

These regulations are part of the Fair Labor Standards Act (FLSA) and change based on what administration is currently in the White House.

Here’s how it works currently:

“A nonexempt employee must be paid the minimum wage and overtime pay for any time worked beyond 40 hours in a given week. Under FLSA rules, nonexempt employees are entitled to time and one-half of their regular pay rate for each hour of overtime,” reports FindLaw, a site dedicated to explaining different laws in detail.

“Exempt employees are not granted the protections of the FLSA and are therefore not entitled to overtime pay. Some types of jobs are considered exempt by definition under the law, including outside sales staff and airline employees.”

FindLaw continues by saying that exempt employees have three things that differentiate them from nonexempt:

• A person is paid at least $23,600 per year
• Is labeled as a salaried (not hourly) worker
• Performs exempt duties (these are set by the DOL – so make sure you look for their guidelines, which are changing quite often) 

The thing that is always in a state of flux is how much an individual has to make per year to be considered exempt. Right now, SHRM and other organizations are trying to increase that amount largely because a person making $23,600 per year usually doesn’t have enough income to work over 40 hours per week with no overtime pay. In fact, some people working for that rate may even have two jobs.

“An increase to nearly $32,000 annually should be enacted, according to the Society’s Sept. 25 comments to the Department of Labor (DOL) in response to the Wage and Hour Division’s July request for information,” the folks at SHRM write in a post about the topic.

“However, some of the more than 160,000 commenters favor a higher threshold—$47,476 per year—that the DOL tried to enact in 2016. Earlier this year, a court struck down that rule.”

Basically, SHRM proposes that this amount be increased by nearly 10 grand, making sure that the amount of pay is substantial enough for the extra job duties, curbing the ability to abuse the system by employers.

Obviously, like any other law about salary, there are supports and opponents who will fight it out at the highest levels. We will have to wait and see if the the wage is increased, which may take quite a bit of time.

The takeaway is that if you are an employer who has exempt staffers working on the lower side of the wage limit, you need to pay extra close attention for these changes and make sure you stay current with federal and state legislation.

Paying attention to both your local laws and what is happening at the federal level, which are set by the DOL. Also, the topic of ‘exempt’ versus ‘non-exempt’ is very confusing and convoluted. Make sure you watch how this evolves and seek advice from legal counsel and outside HR experts who specialize in this topic. 

Final Say

We’ve covered quite a bit here. The fact of the matter, though, is that this is only a surface level look at what laws you should look out for in 2018. There will likely be more changes and some of the laws mentioned here will transform and be different when they actually are implemented, especially from state to state.

Here is a brief rundown of the laws we covered here for you to review:

• Keep an eye out on California’s legal changes because they are likely to spread throughout the country based on how laws have historically travelled
• Paid leave law is changing across the country. Check what is going on in your own state.
• Sexual harassment policy and training is starting to cover more topics, such as gender identity, expression, and others. These laws typically have to do with training and what needs to be covered in those trainings.
• Legal marijuana laws are being passed in various states though it is still illegal at the federal level. Companies with staff in multiple states need to find ways to have a drug use policy that adhere to local laws. Also, drug testing is changing as employees will sometimes travel to these areas where they either partake or are around those who do, making it tougher to test in the workplace. Companies need to address these issues and make policies that work for them.
• Fair scheduling laws are starting to impact certain cities, making employers more accountable when they schedule employees for work. This is only happening in a few cities right now but may spread over time so keep an eye out.
• Overtime regulations are changing on the federal level. The DOL may raise the amount an employee needs to make in order to become exempt.

You can view a full list of upcoming legal changes from Littler here.

As these changes start to make their way into the workplace, HR managers will need to adhere to them. The law is ever-changing and so is the workplace.

Note: We are not legal experts. These laws covered here are still conditional for most of the country. We recommend that HR work with legal counsel to ensure companies are in compliance with local and federal law.

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Josh Hrala

Josh is an HR journalist and ghostwriter who's been covering outplacement and offboarding for over six years. Before pivoting to the HR world, he was a science journalist whose work can be found in Popular Science, ScienceAlert, The Huffington Post, Cracked, Modern Notion, and more.