Top Workplace Issues to Watch in the Second Half of 2022 | Neal, Gerber & Eisenberg LLP

As employers continue to deal with the fallout from the COVID-19 pandemic, they also face the economic uncertainty of a likely recession and tight labor market, among other risks.

In light of these concerns, what are the top workplace issues that employers should be watching closely in the second half of 2022?

To help in-house attorneys, human resources professionals and employers keep pace with the rapidly changing workplace and employment landscape, Neal Gerber Eisenberg (NGE) attorneys from the Labor and Employment practice held a virtual labor and employment symposium to discuss key concerns and provide guidance. on how employers should think about it in the coming months.

Highlights from the event include:

  • COVID-19, equal pay still in the lead
  • Restrictive covenants
  • Salary and hour
  • Union Updates
  • Technology in the workplace
  • Hybrid and remote work

COVID-19, equal pay still in the lead

COVID-19 issues are always top of mind for employers, especially with respect to compliance requirements under the Americans with Disabilities Act (ADA). NGE partners William Tarnow and Sonya Rosenberg urged attendees to participate in ongoing conversations if they are unsure whether an employee’s condition is covered by the ADA and whether they should provide accommodations.

Tarnow and Rosenberg also encouraged employers to manage employee medical issues, which can often resurface and shouldn’t be swept under the rug.

Other key issues for employers include navigating equal pay laws and updates to federal arbitration law.

Several states have enacted equal pay laws that are broader than federal law, going beyond gender to prohibit discrimination based on race, ethnicity and sexual orientation. For example, New York prohibits discrimination based on all prohibited classifications, including race, ethnicity, sexual orientation, disability, religion, national origin, or age. Several states and municipalities have also prohibited employers from asking about an applicant’s salary history.

Participants asked if their businesses might be subject to state-specific laws if an employee works remotely in a city or state subject to those laws, or if the laws only apply where a business is physically located. . Corinne Biller, a partner at NGE, said employers should assume they are subject to these laws unless they can confirm otherwise.

In March, President Joe Biden signed a bill banning forced arbitration in workplace sexual assault and harassment cases. While this is a significant change for resolving disputes in certain workplace issues, Tarnow pointed out that it does not apply to claims about disability, religious discrimination or pay, which which means arbitration is still a viable option for many workplace claims.

Moreover, arbitration remains an option if both employer and employee agree to it – employers simply cannot impose it, as his associate Alex Dominguez explained. Even in cases of sexual harassment, the parties can resort to arbitration if both parties agree.

Restrictive covenants

Chad Moeller, partner, said restrictive covenants are a crucial tool for employers in today’s tight labor market. However, some employers do not use contractual agreements because there is a misconception that such restrictions are not applicable in states where laws regulate their use. Contractual agreements and related policies are not only permitted, but advised in most employment situations.

Simply having such well-tailored documentation in place can act as an effective deterrent against unwanted employee turnover or leadership disloyalty. Tarnow encouraged attendees to review any existing covenant policies their companies have in place, as this is a critical time to retain talent and preserve company secrets for competitive advantage. An employer’s review of its engagement program should ensure that best practices are applied in a company-specific manner, in full compliance with the nuances of state and local laws.

Salary and hour

Partners Jason Kim, Dominguez and Rosenberg spoke about pressing wage and hour concerns for employers, such as avoiding liability for employees’ unpaid work and dealing with worker classification issues as the gig economy grows.

Best practices include maintaining a reporting procedure for unscheduled hours and requiring employees to review and certify their timesheets. Employers can also enact strict policies requiring employees to get approval for time worked and log all that time — and train supervisors to enforce those rules.

The consequences of misclassifying workers as contractors can be severe. In a recent class action settlement, DoorDash agreed to pay the drivers $100 million.

The advent of telework complicates the reimbursement of expenses. NGE lawyers advise employers to:

  • Maintain a documented policy regarding the share of work-from-home expenses that the employer will pay. Include a well-thought-out reasoning why the policy is reasonable.
  • Provide work-from-home tools as needed or appropriate, and monitor new guidelines and decisions.
  • Remember that current state laws requiring reimbursement only apply to work-from-home expenses when remote work is necessary.
  • Federal reimbursement requirements apply only when unreimbursed expenses cause an employee’s salary to fall below federal salary or overtime requirements.

Union Updates

Kim and attorney Gerry Golden shared labor updates, such as changes under the Biden administration and how employers can respond to organizing drives.

President Biden took several pro-union actions, including backing striking Kellogg workers and kicking out Trump-era appointees — something he hadn’t done since the 1950s. He also rescinded Trump-era rules that relaxed worker protections, signed legislation providing billions of dollars to stabilize union pension plans in last year’s infrastructure bill, and backed the PRO Act, which expand the protection of employees’ rights to organize and bargain collectively in the workplace.

Under the current leadership of the National Labor Relations Board (NLRB), employers can expect a return to Obama-era decisions that often lean in favor of workers. Kim and Golden said NLRB General Counsel Jennifer Abruzzo formulated an extreme agenda that prioritizes:

  • continue the employer’s speeches criticizing unionization
  • reinstating the Joy Silk doctrine, which would require employers to accept and negotiate with union officials who present union authorization cards
  • to spill Johnson Controlswhich allows employers to withdraw recognition of a union based on the signatures of a majority of workers opposed to the union.

Kim and Golden said the new union campaigns have involved a significant amount of “self-organizing,” a change from the traditional, more centralized tactics carried out by veteran organizing officials. Recent organizing campaigns have relied on current or former workers rather than professional organizers and raised funds through websites like GoFundMe rather than using union coffers.

Kim and Golden said employers facing an organizing campaign should take the following steps:

  • alert human resources that a drive has started
  • educate employees on the mechanics of the bargaining process, the costs of union representation and
  • educate employees on potential risks to the company, its employees and its customers
  • monitor card signatures

Employers must not:

  • make threats – or imply that there will be consequences as a result of unionization
  • making promises – such as offering perks to incentivize voting against unionization
  • ask employees – do not ask what they or their colleagues think of unions, or if they participate in union-related activities
  • conduct surveillance – do not spy on employees or give the appearance of spying
  • Discriminate – do not treat employees who support unions differently from those who do not

Technology in the workplace

The event also covered the risks and benefits of technology in the workplace for employers. Rosenberg, Biller and partner Alissa Griffin discussed the heightened risk of data breaches as remote or hybrid working puts a strain on existing cybersecurity systems.

Protocols and infrastructure are essential, especially if a company collects or receives sensitive information. The average cost of a data breach is increasing, so employers should consider measures such as data encryption, vulnerability scans and penetration testing, as well as multi-factor authentication and limiting employee access to sensitive information.

Tracking technology has become more popular in the remote work environment. In the right framework, monitoring employee productivity can be helpful. But employers should avoid making rash decisions in implementing technology, which NGE lawyers say can also lead to issues with worker morale or other problems in the workplace.

Rosenberg said if customers can identify a specific need behind the monitoring, there’s usually a legal way to do it. Companies using tracking technology should avoid targeting protected classes, keep surveillance devices out of non-work areas, be consistent in applying the technology, and avoid selective discipline.

Hybrid and remote work

NGE’s lawyers also discussed the legal aspects of returning to work and working from home during this phase of the pandemic.

Decisions about remote work should be based on business needs, they said. Although employers have the right to require employees to be in the office five days a week, this policy could make it difficult to recruit and retain future employees.

Major legal issues with remote or hybrid work include the treatment of out-of-state employees and associated wage, hour, and tax laws, as well as handbook policies regarding compensation or time off. temporary disability.

The Bottom Line: Rosenberg, Biller, and Griffin said a clear work-from-home policy is the best way to navigate today’s environment.

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