1. Prepare now for
new “White Collar Exemptions” Under the FLSA
In March the U.S.
Department of Labor (DOL) is scheduled to release for comment a new proposed
rule for "Defining and Delimiting the Exemptions for Executive,
Administrative, Professional, Outside Sales and Computer Employees" under
the Fair Labor Standards Act (FLSA). The current annual threshold will likely
increase from $23,660 to approximately $30,000 (as opposed to the $47,476
threshold proposed in 2016). Prepare to repeat the 2016 job description exercise,
but not as painful.
2. Research if your
Company a Potential Joint Employer
The DOL is
considering a new proposed rule, that could change the test for determining
whether an entity is a joint employer. The proposed DOL changes to its
regulations concerning joint employment under the FLSA are intended to update
and clarify the 60-year-old legislation.
3. Update Policies
Related to Harassment and Discrimination
In the age of
#MeToo, some companies still don't understand the importance of having air
tight harassment policies and a written systemic process to investigate
allegations. Scheduling employee and management training, providing all
employees a legally compliant signed policy, and dual reporting channels to
make a report, are all critical. Then know how to conduct an attorney-client
privileged legally defensible workplace investigations of allegations. The goal
is to provide the employer an affirmative defense. Expect new EEOC Harassment
guidelines to be released shortly.
4. Employee Health
Insurance and Wellness Choices will Continue Evolving
The U.S. District
Court for the Northern District of Texas on Dec. 14, 2018 declared the
individual Affordable Care Act (ACA) mandate to be unconstitutional. So, the
future of the ACA is uncertain. Employers should begin to look now at new plan
options. The EEOC announced that it will likely propose new Wellness regulations
in June 2019, after the last were overruled effective January 1, 2019. Also
look for the highly anticipated final Health Reimbursement Account (HRA)
Regulations to be released in early 2019.
5. Update/Adopt Employee
Arbitration Agreements
Employers with
employee arbitration agreements may wish to adjust their agreements as needed to
boost enforceability. Others may wish to adopt them. The Supreme Court has
given arbitration agreements a full green light of enforceability.
6. Update
Noncompete/Confidentiality Agreements
Many Alabama
Employers have not yet updated their agreements to bring them into compliance
with the Federal Defend Trade Secrets Act, the 2016 Alabama Non-Compete Act or
the Alabama Trades Secrets Act; all of which provide forward thinking employers
multiple remedies against data thieving employees.
7. Update FMLA
Policies, Forms & Procedures
On Aug. 28, 2018,
the DOL released new opinion letters on the use of Family and Medical Leave Act
leave time and the applicability of “no-fault” attendance policies or
attendance policies with point systems as they are applied to the FMLA.
Employers should consider reviewing their FMLA policies in light of these
opinion letters and the increasing abuse of intermittent FMLA leave. In
September 2018 the DOL released updated FMLA forms and certification notices,
which employers should be using now. The forms are available at DOL.gov.
In
2019 resolve to be alert to these 7 issues and prepare to make the necessary
changes to your policies and procedures. And Have a Blessed 2019!
Tommy Eden
is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP
office in Opelika, AL and West Point, GA can be contacted at teden@constangy.com
or 334-246-2901.
