A new U.S. administration. A Colorado minimum wage hike. Facebook posts. Breastfeeding. Marijuana.
Those were a few of the topics discussed last week by Michelle Jacobsen, director of the Mountain States Employers Council’s Colorado Springs office. Jacobsen was a guest speaker at an event sponsored by the Colorado Springs Chamber of Commerce & EDC to discuss rapidly changing — and sometimes obscure — employment law affecting local business owners.
Department of Labor Changes
“With this last election, there is a new administration, and with a new administration we get new interpretations of regulations,” Jacobsen said.
One of the new administration’s first actions under Secretary of Labor Alexander Acosta was to withdraw guidance letters about independent contractors and joint employment.
In 2015-16 the Department of Labor issued informal guidance letters to give businesses an understanding of how the DOL was going to enforce actions regarding independent contractors and joint employment. Those guidance letters have been withdrawn and left more room for interpretation, Jacobsen said. The DOL has also committed to aggressively confront businesses committing visa program fraud or abuse.
Federal Overtime rules
The DOL, under the Obama administration, put in place a plan to change the way businesses compute overtime, raising the exemption level from $23,000 now to about $47,000. The regulation was to go into effect last December. A U.S. District Court judge out of Texas put an injunction on the overtime rules after 21 states filed a claim against the DOL, she said.
The DOL has filed an appeal, asked for an extension and may ask for an additional extension by the end of the summer.
State minimum wage increase
Amendment 70 passed in November, meaning a new minimum wage in Colorado went into effect this year.
The minimum wage increased from $8.31 an hour to $9.30 an hour and will go up every year by 90 cents until Jan. 1, 2020, when it will be $12 an hour. The state will continue to adjust the minimum wage annually based on the Consumer Price Index.
Tipped employees will make a minimum of $6.28 an hour.
“If your employees are covered by the Colorado Minimum Wage Order or if they’re covered by the Fair Labor Standards Act, they get minimum wage. The exceptions are limited,” Jacobsen said. “Agriculture might have employees not covered by the Fair Labor Standards Act.”
Due to an executive order filed under the Obama administration, federal contractors receive mandated sick time, and that is still in effect,” Jacobsen said.
“Trump hasn’t repealed it, and it doesn’t look like he’s going to,” she said. “And, exciting news — the federal government is considering a proposal that would allow private sector employers to offer comp time.”
Jacobsen said federal law currently only allows public-sector employers to provide compensatory time instead of overtime pay.
The proposal is called the Working Families Flexibility Act of 2017 and would allow non-union, private employers to provide comp time in lieu of overtime. The program would be voluntary for the employer, and there would be a maximum accrual of 160 hours per employee.
Employers would have to pay cash at end of each year or at the end of employment if comp time is not used.
The bill passed the House in May and was sent to the Senate for consideration.
“Right now it’s not clear if it will have legs,” Jacobsen said.
Under the Family Medical Leave Act, employees can have up to 12 weeks unpaid leave per year for their own serious health condition or that of a family member.
“What often happens is the employee’s condition lasts for more than 12 weeks, but it’s not permanent,” Jacobsen said. “Maybe they can come back, but only part-time, or they can come back in 16 weeks or 18 weeks.”
Jacobsen said many employers think they can terminate the employee at the end of the 12 weeks.
“That’s actually not the case. … That’s where you cross over into [Americans with Disabilities Act] land, and you want to engage in the interactive process with the employee and figure out if that extension of leave is a reasonable accommodation.”
Employee handbook language indicating a hard deadline for leave “can be a real problem if the [Equal Employment Opportunity Commission] comes knocking on your door,” she said.
Americans with Disability website accessibility claims are on the rise, according to MSEC data.
There were about 250 claims in 2016 because websites were not ADA accessible, compared to only “a handful” of claims in 2013. Those were typically filed by users with low vision, Jacobsen said.
According to the Department of Justice, any website offering goods and services to consumers, even those without a physical location, constitutes places of public accommodation. Jacobsen said, if recruiting online, it could pose a problem with the Equal Opportunity Employment Commission, as well as the ADA.
Social media use
“Employee behavior on social media has become an ever-increasing issue for us,” Jacobsen said. “We’re getting a lot of calls — lots of termination decisions and disciplinary actions.”
A sample of questions to MSEC:
• Can employees say negative things about my company online?
• What if employee posts racist or sexist comments on Facebook?
• Can employees post racist comments about co-workers on Facebook?
• A customer is complaining an employee is posting erotica which she self-publishes online under her name. Can I tell her she can’t do that?
• Can employees post pics on social media account that were taken in a restricted area at work?
• Can I terminate an employee for posting inappropriate photos of himself online if a customer complains?
Jacobsen said employers should keep these things in mind:
• Is speech protected under federal or state law?
• Are the comments true?
• Is posting happening when employee is off duty?
• Is it a legal activity?
Jacobsen suggests speaking with human resources or an employment attorney before taking action regarding social media posts.
National Labor Relations Board
The National Labor Relations Board enforces the National Labor Relations Act. The NLRB has, according to Jacobsen, been targeting employee handbook policies.
“Employees are filing claims accusing employers of unfair labor practices or policies interfering with ability to participate in protected concerted activity,” she said.
Targeted policies include those against taking pictures or recordings at work and against discussions with the media.
“There are ways to craft your policies that comply, but you have to be very careful with that language,” she said.
Language has to be “narrowly tailored” so it doesn’t restrict employees from engaging in concerted activity.
Confidentiality provisions are also on the NLRB’s radar.
“If it’s a secret, you have to treat it like a secret,” Jacobsen said. “You can’t say your handbook is confidential. If you’re handing it out to all your employees, then it’s not confidential.”
The concern, she said, is confidentiality could prohibit employees from talking about workplace conditions, which could lead to not being able to engage in protected concerted activity.
“If policies are very restrictive, [it] could be a problem under the National Labor Relations Act,” she said.
Seven states and Washington, D.C., allow recreational marijuana use and 29 states allow medicinal marijuana. Colorado allows both.
“Private employers can still drug test, but our employers are having a harder time finding employees who can actually pass a drug test,” Jacobsen said. “And it’s not just industries people typically think of.
“I will tell you that if you’re an employer in, say, manufacturing and you pay $10 or $11 an hour and you want to test, good luck.”
Jacobsen said marijuana and drug tests are affecting employees at all levels and across all industries.
Companies that conduct drug testing should consider why they are taking on the additional expense. Some companies test because they are a federal contractor, or may have obligations to federal agencies, like the Department of Transportation. Some test because they can get lower premiums on insurance.
“But what are you going to do if it’s your favorite employee who fails a drug test?” she said.
She said to also consider the method of testing. The Department of Transportation only allows hair follicle or urine tests, while mouth swabs detecting more recent use are becoming more prominent in some workplaces.
“The science on those is still somewhat mixed,” she said.