United States: What's On The Horizon For Employers In 2016?

Executive Summary: 2016 is nearly upon us. While federal employment legislation most likely will not be enacted in the upcoming year, employers can expect federal agencies to continue their efforts to implement the Obama Administration's agenda through rule-making and increased compliance activity. Additionally, states undoubtedly will continue to enact legislation to fill in what many perceive as gaps in laws protecting employees. Here's what is on the labor and employment law horizon for 2016:

Overtime exemptions. The DOL issued a proposed rule that would raise the required minimum salary for most FLSA exemptions from $455 to $970 per week ($23,660 to $50,440 annually).  The DOL is not likely to release the final rule until late in 2016, probably after the presidential election. For more information, please see our June 30, 2015 Legal Alert, The DOL's Proposed Amendments Increase the Salary Threshold for the FLSA's White Collar Exemptions - Dramatically Expanding the Number of Employees Eligible for Overtime.

Continued challenges to mandatory arbitration agreements.  Earlier this month, in DirecTV, Inc. v. Imburgia, the US Supreme Court ruled that the Federal Arbitration Act (FAA) allows federal courts to police state rulings to ensure that they uphold the federal policy favoring arbitration.  While not an employment case, the Court looked at whether an arbitration clause was scrutinized "on equal footing" with other agreements.  Accordingly, it is likely that claimants will challenge agreements to arbitrate employment disputes with their employer.  However, the decision makes it clear that the FAA preempts state-law rules barring enforcement of an arbitration agreement if the agreement does not permit the parties to utilize class procedures in arbitration or in court. Additionally, the National Labor Relations Board (NLRB) continues to take the position that mandatory arbitration agreements containing class action waivers violate employees' rights under the National Labor Relations Act, despite multiple federal court decisions rejecting this position.

Home health care pay.  In August 2015, the federal Court of Appeals for the D.C. Circuit upheld a U.S. Department of Labor (DOL) rule that requires the payment of a minimum wage and overtime for live-in home health care workers employed by home health care agencies. The rule was supposed to take effect on January 1, 2015, with a twelve-month grace period for employers to comply.  It remains unclear when the revived rule will be fully implemented, but the DOL maintains that it will continue to provide technical assistance to employers for compliance in 2016 and will use complaint-based and agency-initiated investigations to achieve compliance. For more information, please see our October 13, 2015, Legal Alert, United States Supreme Court Denies Stay of Appeals Court Ruling Validating USDOL's Final Rule.

Minimum wage increases.  Many state and city minimum wage laws are set to change in 2016, including Birmingham, AL ($8.50/hour as of 7/1/16), Alaska ($9.75 on 1/1/16), Arkansas ($8.00 on 1/1/16), California ($10 on 1/1/16), various cities in California, Colorado ($8.31 on 1/1/16), Connecticut ($9.60 on 1/1/16), DC ($11.50 on 7/1/16), Hawaii ($8.50 on 1/1/16), Chicago, IL ($10.50 on 7/1/16), Lexington, KY ($8.20 on 7/1/16), Louisville, KY ($8.25 on 7/1/16), Portland, ME ($10.10 on 1/1/16), Maryland ($8.75 on 7/1/16), Massachusetts ($10.00 on 1/1/16), Michigan ($8.50 on 1/1/16), St. Louis, MO ($9.00 on 1/1/16), Minnesota ($7.75 or $9.50 depending whether a company's annual sales are greater than $500,000, on 8/1/16), Nebraska ($9.00 on 1/1/16), New York ($9.00 on 12/31/15), Rhode Island ($9.60 on 1/1/16), South Dakota ($8.55 on 1/1/16), Vermont ($9.60 on 1/1/16), Seattle, WA ($10.50 to $13.00 depending upon number of employees and whether the employee offers health insurance, on 1/1/16), Tacoma, WA ($10.35 on 2/1/16) and West Virginia ($8.75 on 12/31/15).  In addition, on all contracts entered into on or after January 1, 2016,  federal contractors must pay workers a minimum wage of $10.15 per hour. Certainly, employers should ensure that these new minimum wage rates are correctly paid.  In some instances, employers may need to update employee handbooks in sections that address minimum wage rates.

Joint employer liability. The NLRB issued a decision that could significantly affect employers utilizing alternative workforce arrangements, such as staffing firms and professional employer organizations (PEOs). In Browning-Ferris Industries of California, Inc., v. Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters, the NLRB deviated from established precedent to hold that a staffing firm may be considered a joint employer of its client even where it did not actually exercise any direction and control over the workers – the right to do so is now sufficient. Accordingly, two or more entities would be deemed joint employers of the same employee if they "share or codetermine those matters governing the essential terms and conditions of employment."  It remains to be seen whether the NLRB's test will be adopted in other contexts, such as under Title VII of the Civil Rights Act of 1964 (Title VII), the Family and Medical Leave Act (FMLA) or other employment laws outside of the NLRB's jurisdiction.

Ban-the-box legislation. States and local jurisdictions have been adopting ban-the-box legislation designed prevent employers from initially using arrest or conviction records to deny job applicants employment. Instead these laws require the employer to consider the applicant's skill and experience first and delay criminal background checks until later in the hiring process. Over the past few years, more states have been banning employers from asking questions about prior criminal convictions on job applications.  At last count 19 had passed ban-the-box legislation: California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oregon (2015), Rhode Island (2013), Vermont (2015), and Virginia (2015). In addition, several of these states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island) have also removed the conviction history question on job applications for private employers only. Expect more states to pass similar legislation.

LGBTQ workplace issues. This year's Supreme Court case of Obergefell v. Hodges held that same-sex couples have a constitutional right to marry.  Accordingly, same-sex couples may now receive employer-offered benefits that were largely exclusive to heterosexual couples, such as health insurance.  The law likely will bring claims under Title VII (arguing that the law's  protections include sexual orientation or marital status) or the FMLA (on the basis that an eligible employee is allowed to take protected leave to care for a "spouse" who has a serious medical condition, especially now that the DOL has revised its regulations to define spouse under the FMLA to include married, same-sex partners).  Additionally, the Equal Employment Opportunity Commission's (EEOC's) Strategic Enforcement Plan includes protections for LGBTQ employees.  Accordingly, employers should look at language contained in benefit plans and other provisions of their handbooks which could implicate rights afforded to same-sex couples to ensure compliance with this decision.

Wellness programs.  Many employers have implemented employee wellness programs to incentivize workers to become more fit.  The EEOC has proposed new regulations for wellness programs addressing the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act of 2008 (GINA). For instance, the EEOC is looking at whether, and to what extent, the ADA permits an employer to offer financial incentives for employees to participate in wellness programs that include disability-related inquiries (such as questions about current health status asked as part of a health risk assessment) or medical examinations (such as blood pressure and cholesterol screening to determine whether an employee has achieved certain health outcomes). The EEOC stated that a wellness program violates the ADA if it utilizes an involuntary medical examination, such as a biomedical test, that is not job related.  So, employers should closely follow the EEOC's enforcement with respect to wellness programs and evaluate whether their plans are legally compliant. For more information, please see our April 22, 2015 Legal Alert, EEOC Issues Proposed Wellness Program Amendments to ADA Regulations. Title II of GINA prohibits employers and other covered entities from requesting, requiring, or purchasing genetic information, subject to six limited exceptions. One exception allows a covered entity to acquire genetic information about an employee or his or her family members when it offers health or genetic services, including wellness programs, on a voluntary basis.  The EEOC's proposed rule to amend the regulations implementing Title II of GINA would allow employers who offer wellness programs to provide limited financial and other inducements (also called incentives) in exchange for an employee's spouse providing information about his or her current or past health status. The EEOC is accepting comments on the proposed rule through December 29, 2015, so a final rule will likely be released sometime in 2016.

Paid sick leave. While there continues to be no federally-mandated paid sick leave law in the U.S., President Obama has issued an executive order requiring certain federal contractors and subcontractors to provide employees with one hour of paid sick leave for every 30 hours worked, for at least 56 hours per year. The requirement will take effect for covered contracts entered into after January 1, 2017.  The President has directed the Secretary of Labor to issue implementing regulations by September 30, 2016.  For more information, please see our September 8, 2015 Legal Alert, Executive Order Will Require Paid Sick Leave for Employees of Government Contractors.  Additionally, Connecticut, California, Massachusetts, Oregon (effective in 2016), and Washington D.C., as well as a number of cities, have enacted paid sick leave laws. Employers can expect to see more efforts to enact paid sick leave requirements at the state and local level in 2016.    

Fair Credit Reporting Act (FCRA) litigation.  In 2015,  employers saw numerous lawsuits claiming technical violations of the FCRA's notice and disclosure requirements, many of which were settled for significant sums. However, in November 2015, the Supreme Court heard oral argument in a nonemployment case that could significantly impact these types of claims. In Spokeo Inc. v. Robins, an FCRA class action, Robins claimed Spokeo (a company that operates a "people search engine" that aggregates various types of public information about people) provided inaccurate information about him. Although Robins did not claim actual damages, he claimed the company's violation was willful and sought statutory damages of between $100 and $1,000. The federal trial court dismissed the case, finding he lacked standing to bring it, but the Ninth Circuit reversed this decision. The U.S. Supreme Court agreed to review the case to determine whether someone who has not suffered a concrete harm, but instead alleges only a statutory violation, has standing to bring a claim on behalf of himself or a class of individuals. If the Court holds that such individuals do not have standing, it should eliminate or greatly reduce the number of class action lawsuits filed against employers alleging technical violations of the FCRA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.