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Federal and State Trends: Employee Handbook Updates in 2019

Now that we are two months into 2019, most companies have updated employee handbooks to reflect new laws and other regulatory changes that occurred in 2018. Still, it’s important to realize that keeping policies and procedures up to date is a continuous process. Below are key issues employers should monitor in 2019.

Federal Updates

In general, employers must keep a close watch on the actions of various agencies including the Department of Labor (DOL), National Labor Relations Board (NLRB), Equal Employment Opportunity Commission (EEOC and Occupational Safety and Health Administration (OSHA).

The DOL is expected to soon propose a new overtime rule that will raise the salary threshold for the Fair Labor Standards Act’s white-collar exemptions from overtime pay. While the federal minimum salary for exempt employees will likely increase, the amount will be substantially lower than what the Obama administration approved. And, like California, some states already have a higher salary threshold and may not be affected by a new rate.

At the federal level, employers should also review recent NLRB guidance and decisions. If an employer made substantial revisions to align with the Obama administration’s NLRB, there may be opportunities to revisit some of those policies based on guidance from and case decisions under President Donald Trump’s board. Refer to NLRB general counsel’s 2018 guidance on employee handbooks. 

So far in 2019, the NLRB has issued a decision limiting the definition of what constitutes “protected, concerted activity” and another broadening the standard for who is considered an independent contractor under the National Labor Relations Act. Still, it’s important to note that the pendulum could swing back if a new president is elected in 2020.

State and Local Updates

Broadly, employers should expect to see more state family-leave requirements, state and local sick-leave laws, accommodations laws, policies arising out of the #MeToo movement and continued marijuana legalization.

The proliferation of paid-sick-leave, paid-family-leave and paid-parental-leave laws will continue to be a challenge as employers determine the best compliance approach — and employers must also keep up with changes to pregnancy leave and accommodation laws at the state level. And, while some laws have very specific requirements, others may not, making it even more important to keep your handbook up-to-date.

Beyond leave, we’re also likely to see more state and local laws that address sexual-harassment prevention, pay equity and marijuana legalization — both recreational and medicinal.

And while federal and state laws conflict on marijuana’s legal status, employers in states where marijuana use is permitted need to review and update their drug and alcohol policies, creating specificity around what is permitted in the workplace and to what extent they will accommodate an employee who is medically permitted to use marijuana.

Cultural Forces

There are many cultural forces at play, at both the federal and state levels, which may prompt employers to revisit their policies. Not only are employees demanding greater transparency from employers, certain things that were once generally accepted, have become somewhat taboo. For example, many employers have stopped requiring employees to sign arbitration agreements based on pressure from employees and the general public.