By Mike Lewis
As a new year dawns, Walt Lachenmayr said it’s time to dust off those employee handbooks.
Lachenmayr is a human resources consultant based in Hagerstown, Md. He and attorneys from Maryland, Pennsylvania and West Virginia recently provided insights and advice for employers as 2019 begins.
For example, Lachenmayr said the National Labor Relations Board’s view of several matters has changed in the transition from former President Barack Obama to President Donald Trump. As a result, he said, some workplace rules are “more realistic” from an employer’s point of view. Those range through “a whole host of things,” such as rules about taking pictures or making recordings in workplaces.
Lachenmayr advised employers to get advice about specific rule changes and how those might affect their workplaces.
Overtime, or exempt?
Advice about overtime also could change in the next couple of years, according to the three attorneys from this region. They all pointed to the potential change in the federal overtime rule, which has taken a winding path in recent years.
In May 2016, the federal government finalized a new overtime rule that would have doubled the annual minimum salary level, from $23,660 to nearly $48,000, for the so-called “white collar” overtime exemptions. Later that year, however, the new rule was struck down by a federal court in Texas.
The issue has been on hold.
But in late 2018, the Trump administration formally announced plans to issue a notice of proposed rule-making “to determine the appropriate salary level for exemption of executive, administrative and professional employees.”
“We’re still in the sausage-making phase. … I think the general consensus is that it will be increased,” said Garrett Wozniak, an attorney with Kollman and Saucier of Timonium, Md.
He expects the level to eventually settle in the mid-$30,000s.
‘Audit and spot-check’
Wozniak said Maryland employers should be on the lookout for some specific changes in the Old Line State.
“I think everyone would welcome regulations from the state” to clarify lingering questions from Maryland’s recent law providing sick and safe leave for employees.
Another new law makes general contractors liable for wage and hour violations of subcontractors. The law imposes that liability on construction general contractors regardless of whether the subcontractor and the general contractor have a contractual relationship.
Wozniak said general contractors will want to look over their contracts. One idea might be to require subcontractors to post bonds to cover potential wage claims, he said.
“You’re going to want to audit and spot-check” your subcontractors, he added.
Another new law requires employers with more than 50 employees to submit reports about sexual harassment to the Maryland Commission on Civil Rights. Employers must report the number of settlements made after complaints alleging sexual harassment; the number of times the employer has settled sexual harassment claims against the same employee in the past 10 years; and the number of settlements that contained confidential agreements.
“The target here is the repeat offender,” Wozniak said, noting that the law is “pulling the curtain back on what really is the workplace culture” at a business.
Names and other specific information will not be made public, but he said some still fear the law could discourage people from reporting such incidents.
Title IX proposals
On a related note, Charles “Chazz” Printz of Bowles Rice in Martinsburg, W.Va., said proposed changes in federal Title IX rules could affect some educational institutions. Those rules, concerning sexual harassment and discrimination, could have a big impact and might cause some to change their policies.
“Some people think this is a way to level the playing field, so to speak,” he said of the proposals.
For example, one proposed change is in the definition of sexual harassment. It would mean actions that diminish a person’s equal access to educational programs or activities. Printz said that would exclude a lot “date-rape situations” that colleges have to address now. The change, if implemented, would take those actions outside of Title IX jurisdictions and put them solely into criminal law.
“An off-campus incident would not be covered,” he added.
And, generally speaking, the proposals would provide more rights to a person accused of sexual harassment.
Overall, he said, some will see the proposals as an effort to “try to provide some clear, bright lines” in what are often cloudy situations. But the proposals “could be viewed as a negative by some” who think they will discourage people from reporting harassment and discrimination.
Medical marijuana and more
Printz also reminded West Virginia employers that the state’s medical marijuana act will take effect July 1.
After that date, a physician can issue a certificate that allows a patient to get medical cannabis for “cancer and other types of serious diseases.” The law prohibits employers from discriminating against someone for having a medical cannabis card. But having the card “doesn’t give you a whole lot of other rights,” Printz said.
A person with a card can be prohibited from some jobs, such as working in heights, operating heavy equipment and dealing with high-voltage lines.
“It allows employers to transfer an employee from those jobs. … You cannot be taking medical cannabis and holding that job,” he said.
At the same time, the employer “has no duty to move you into a desk job.”
Overall, Printz predicts the law will affect “a very small percentage” of the workforce.
Attorney Jennifer Craighead Carey of Barley Snider said some Pennsylvania employers face similar confusion about that state’s medical cannabis law.
“What are they required to accommodate? … It’s unclear to my clients” said Carey, who is based in Lancaster, Pa.
“I think we’re going to see some litigation down the road.”
If employers have their drug-testing policies, they should review those with counsel, Carey said.
On another national issue, the attorney said she’s hoping the U.S. Supreme Court will “lend some clarity around” the issues of sexual orientation and transgender discrimination. Federal agencies and statements have left confusion on that issue, she said.
Her advice? “You should not be discriminating unless you want to be a test case,” she said.
In light of the #MeToo movement, she added, “I would definitely advise clients to have their workplace harassment policies reviewed.”