Employers Should Prepare Now For The Regulation Avalanche Of 2016

It is almost a political tradition. As an outgoing administration leaves, especially a lame duck administration, new laws and regulations are made to leave the administration's mark on government agencies and those persons or entities the agencies regulate.

Employers are often affected by this tradition, no matter the political party.

Before President George W. Bush left office, Congress passed, and he signed, the Americans with Disabilities Act Amendment Act ("ADAAA"). His father, President George H.W. Bush, had signed the original Americans with Disabilities Act into law. The younger President Bush's ADAAA expanded the definition of "disability" under the ADA, among other changes, and as a result, disability charges filed with the Equal Employment Opportunity Commission (EEOC) have steadily climbed.  In 2015, disability charges reached a new high and saw an increase of six percent from the previous year.

Congress passed, and President George W. Bush also signed into law, the Genetic Information Nondiscrimination Act (GINA) right before leaving office.

As for President Obama, The Patient Protection and Affordable Care Act (ACA) is his most high-profile legislation that affected employers and employees the most. The Lilly Ledbetter Fair Pay Act was the only equal employment legislation passed by Congress and signed by President Obama. That Act has had just minimal impact on employers.

Nevertheless, the Obama Administration's impact on employers will not soon be forgotten. Its legacy will not be from impactful legislation, like the Family and Medical Leave Act under President Clinton, or from the timing of monumental judicial decisions, like the 1987 Meritor Savings Bank v. Vinson decision, that declared sexual harassment illegal under President Reagan.

The impact on employers and employees from the Obama Administration will be from the reinterpretation of existing regulations and introduction of new regulations on employers.  

On March 13, 2014, President Obama signed a "Presidential Memorandum" directing the Department of Labor to "update the regulations" redefining which white collar workers were exempt from overtime under the Fair Labor Standards Act.

On July 6, 2015, the proposed new rule was offered for public comment. The proposed rule significantly increases who is eligible for overtime by increasing the threshold to pay overtime from $23,660 to $50,440. We analyzed the impact on employers, if the rule is adopted as proposed, in our July 2015 article "Big Change Is Coming: The Impact And Risk New Overtime Rules Present Employers"

Suffice to write that many employers, large and small, will be affected financially. Any time now, the DOL will announce the final rule.

The Department of Labor is not just changing the overtime rules. The DOL is also expanding the definition of who is an independent contractor with the July 15, 2015, DOL Administrator's Interpretation No. 2015-1. The Interpretation makes it more difficult for employers to classify workplace participants as contractors. I discussed the Interpretation in our August 2015 article "Use Independent Contractors? New DOL Interpretation Targets You."

Any employer that uses independent contractors will have to closely evaluate how the interpretation affects them. For more information, see "Wage and Hour Alert: Why A Litigation Tsunami Warning Is Issued For 2016"   

Not to be outdone, the EEOC has reinterpreted Title VII's prohibition preventing sex discrimination to include the prevention of discrimination based on sexual orientation or gender identity, issues that were of course never the subject of public discussion, much less legislative consideration, in 1964 when Congress was crafting the Civil Rights Act.

Proponents point to the recent U.S. Supreme Court ruling overturning bans on same sex marriage to argue that it is a civil rights issue. Opponents argue that the interpretation is outside the scope of Title VII and that Congress is the body that should expand Title VII and not the EEOC.

Nevertheless, the EEOC has successfully settled charges against employers for discrimination based on transgender discrimination in 2016 and just issued, along with OSHA, a "guidance" for employers on how to address transgender and bathroom issues in the workplace. The EEOC/OSHA guidance is based on its Macy v. Department of Justice case that it prosecuted in 2012. https://www.osha.gov/Publications/OSHA3795.pdf.

It's not just about bathrooms. The EEOC also just released a guidance regarding employee leave and employees with disabilities. Spoiler alert: disability rights trump employer leave policies.https://www.eeoc.gov/eeoc/publications/ada-leave.cfm

Some administrations leave their mark by legislation. 2016 will be the year of regulations. Employers should stay tuned because more regulations are expected and almost every employer will feel their impact to some degree. My advice to employers is to review the regulations and work closely with their counsel to make certain they are in compliance.  

Via:  Hartford Help