“The only thing that is constant is change.”
Turns out that dusty old Greek philosophers occasionally say profound things (Heraclitus also said that a man’s character is his destiny). And since the Greeks are considered the fathers of democracy and were responsible for no small number of laws themselves, it seems an appropriate departure point to talk about the constantly changing landscape of employment laws.
In the past year, there have been a significant number of legal and regulatory changes at both the state and federal levels. Let’s take a look at some highlights.
Following trends in a number of other states, Wisconsin has passed a law protecting employees and applicants from having to provide employers with access to their personal online accounts. The law covers both the accounts themselves, as well as any passwords that may be attached to such accounts, and employers are prohibited from “requesting or requiring” access. Additionally, employers are prohibited from retaliating in any way against individuals who exercise their rights under the law.
Interest in laws of this sort started a few years ago when the media reported stories about how some employers required applicants (and occasionally employees) as a condition of employment to provide them with passwords to the applicants’ or employees’ social media pages, such as Facebook.
Although the law establishes broad employee protections, there are some limited opportunities for employers to gain access to employee accounts. For instance, employers have a right to access “electronic communications devices supplied or paid for in whole or in part by the employer,” as well as accounts or services provided, controlled or directed by the employer (such as social media accounts employees set up in connection with their jobs).
Employers may also request to view personal accounts as part of an investigation into confidentiality breaches, potential violations of the law or general employee misconduct, so long as they have reasonable cause to believe the accounts may contain information that could substantiate the concerns.
While there are a few other exceptions to the law, employers should always be cautious about accessing any individual’s social media accounts, since they often contain protected category information (e.g., age, religion and sexual orientation) that could be problematic for the employer to know, and could be used as a basis for wrongful hiring / termination claims.
In March of 2014, President Obama directed the Department of Labor (DOL) to “modernize and streamline” its regulations regarding what it means to be an exempt employee. In particular, the presidential memorandum expresses concern that the regulations haven’t kept up with modern times and, as a result, “millions of Americans lack the protections of overtime and even the right to the minimum wage.”
Some background might be helpful. Broadly speaking, all employees are entitled to minimum wage and overtime unless they are “exempt” from those requirements. In turn, the DOL has enacted a series of regulations creating certain categories of employees who are exempt from the minimum wage and/or overtime requirements.
Unless an industry-specific exemption applies, in order to be exempt, employees must be paid a regular weekly salary of at least $455 per week (i.e., the “salary basis” test) and have the primary duties of their positions satisfy one of the recognized exemption categories (i.e., the “primary duties” test). Historically, this has meant that exempt employees often work far more than 40 hours in a week without receiving overtime or extra compensation.
While the presidential memorandum didn’t provide a lot of guidance as to how the regulations will be revised, there is reason to believe that the thresholds for being exempt will get much higher. There has been some talk that the salary basis test could increase from $455 per week to as high as $1,000 per week. Similarly, it seems likely that the recognized exemption categories will become narrower — especially for the “executive” or supervisory exemption — meaning fewer employees will be able to meet the primary duties test.
Most employers are familiar with the annual process of posting OSHA 300 logs — a listing of all injuries and illnesses at their jobsite — at each of their locations. Once the posting period closed, employers historically were not required to do much beyond simply storing them for five years. However, all of that may soon change.
OSHA has issued proposed regulations that would require employers to electronically submit most of the information in their 300 logs directly to OSHA on a regular basis.
OSHA intends to make the data it collects public and might even do so through a searchable database, giving anyone who was interested access the accident and injury data of any reporting employer.
To find out how you can receive help with employment law and practices that apply to your organization, contact us.
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuin
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuing Ed program. He previously was a plaintiff’s attorney and brings that perspective into his advice to employers. James received his law degree from the University of Minnesota and his BA from Washington University in St. Louis.
On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
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