Don't Close the Door on 2019: Five Trending Issues that Remain in 2020

2019 has had many highs, lows and everything in between with the only constant being the amount of change we face both as employers and as a society as a whole. Therefore, as we begin to wrap up the year, it is more important than ever to make sure we keep abreast of these various changes that are ready to face us as the clock strikes twelve in 2020. Here are five trending issues that employers must be - and remain - aware of not only to remain compliant but also to ensure they stay at the forefront in 2020 and beyond.

1. Overtime Rule Change

First up are the new overtime rules that go into effect on January 1, 2020. As employers, we have been waiting for this day to come for almost three years since the Obama administration proposed changes to the overtime eligibility requirements in 2016. After significant backlash from employers nationwide, the Department of Labor (DOL) spent the last two and a half years coming up with new rules that benefit the workforce without considerable harm to employers. In September, the Department of Labor issued the new overtime rules that will go into effect for all employers starting in 2020.

Employers should note the following three changes to the new overtime rules:

  1. The "standard salary level" will be raised from $455 per week to $684 per week (equivalent to $35,568 per year for a full-year worker);
  2. The total annual compensation requirement for "highly compensated employees" will increase from $100,000 to $107,432 per year; and
  3. Employers can use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level.

The fourth change (not noted herein) is relevant to workers in U.S. territories and the motion picture industry. Before you balk at the potential amount of extra overtime you are going to have to pay, note that the DOL has not raised these threshold amounts since 2004. Considering rates of inflation and other economic changes this country has seen in the last 14 years, it's not hard to understand or agree with why these changes needed to take effect and the significant positive impact it will have on almost 1.3 million U.S. workers.

Additionally, back in March, the DOL proposed new rules that clarify what is considered the €˜regular rate' when it comes to computing overtime under the Fair Labor Standards Act (normally one-and-a-half times the hourly rate). While the comment period on this new proposed rule ended in June 2019, there has been no official word yet on changes to the regular rate determination so employers should stay tuned for developments in 2020. As with all laws and regulations, check local listings to ensure that there are no state or local laws that are stricter (e.g., in California overtime is twice the hourly rate).

2. Diversity, Inclusion - And Equity

I have written many articles about diversity and inclusion and why it's still an important problem (yes, it is still a problem in our industry despite what you may have read). Clients are threatening to jump ship over lackluster diversity initiatives and employees are increasingly bringing claims to the EEOC and into the public eye in the wake of the #MeToo movement. States are also increasingly requiring employers to conduct training on sexual harassment for employees or face significant penalties and fines. Due to this, we've also seen an uptick in new initiatives and programs to prevent sexual harassment in the workplace (e.g., New York's mandatory training requirement for all employers). As we continue to make strides to become more diverse workplaces, employers need to remember that equity is just as critical as inclusion. Equity means everyone receives fair treatment and equal access to opportunities. Conversations and initiatives around equity are doubly important in the legal industry due to the long (and ongoing) history of women and minorities not receiving the same opportunities for advancement and competitive pay.

3. LGBTQ Workplace Discrimination

In our current political climate, LGBTQ rights warrant their own section apart from the general discussion around the importance of diversity and inclusion. Given the specific LGBTQ issues playing out in the courts right now, employers should be on alert as they will have a strong impact on all employers in the coming year. On the local level, Philadelphia has a vibrant LBGTQ community with over 25,000 participants in the city's annual pride parade. Just this month, newly re-elected Mayor Jim Kenney signed into law three new ordinances that include gender identity anti-discrimination measures aimed at protecting our trans youth as well as requiring one gender-neutral bathroom on each floor of City Hall and the addition of gender-neutral bathrooms in all new or renovated city-owned buildings. Additionally, since August 2018, discrimination based on both sexual orientation and gender identity has been interpreted by the Pennsylvania Human Relations Commission as banned under the category of sex. On the national level, after oral arguments in October 2019, we anticipate hearing from the Supreme Court in mid-2020 on whether they agree that sexual orientation and gender identity fall under Title VII of the Civil Rights Act of 1964. If they do, then all workers would be protected from anti-LGBTQ workplace discrimination. If they don't, employers should still follow state and local laws enacted around such protections.

4. Marijuana and the Workplace

Speaking of a high in 2019, employers across the country face more and more issues surrounding marijuana and its effect on the workplace. Currently, there are only 11 states where marijuana remains fully illegal, although even in some of those states it has been somewhat decriminalized. While marijuana is still federally illegal, there could be a bigger push for overall legalization should there be an administration change come November 2020. But for now, employers need to be cognizant of the employee issues around marijuana when it comes to everything from drug testing to policy violations. In 2018, a Connecticut court found an employer liable for discriminating against a medical marijuana user and in early 2019, an Arizona court found that an employer violated the state's discrimination provision as a matter of law when it terminated an employee for a positive drug test that did not prove actual impairment during working hours. Additionally, effective May 10, 2020, New York City will ban covered employers from testing applicants for most jobs for the presence of marijuana as a condition of employment.

5. "Say What" - Visual Expression Through Emojis

According to a 2017 Harris Poll study, 71% of Americans were using visual expression in addition to words to communicate. Visual expression over electronic communication includes emojis, stickers, videos, and GIFs. Employers not only need to know about this way of communicating but HR teams must also be well versed in emoji language and its potential impact on cases involving sexual harassment and discrimination. With over 3,000 emojis to choose from, you can use visual expression for almost any feeling, thought or reaction. According to Unicode, the most popular emojis include a smiling face with heart eyes, a face blowing a kiss, a face with tears of joy, a face laughing crying (rolling on the floor laughing) and a smiling face with smiling eyes. With the increased use of visual expression, there has been an uptick in cases where emojis were used as evidence to support the finding of harassment or discrimination. In 2018, there were at least 53 cases where an emoji was used as evidence according to a blog post on this topic by Eric Goldman. In the blog, Goldman cites over 170 federal cases where emojis were used as evidence and over five cases in the last two years where emojis helped prove an employee's allegation of discrimination and harassment. In two recent cases out of New Jersey and Alabama, respectively, the court found for the plaintiff in her employment discrimination case where she was sent heart emojis; and in the other, the court found for the plaintiff in her sexual harassment case after a supervisor sent her smiley face emojis.

Employers need to keep these items on their radar now and well into the New Year. But don't be fooled by this shortlist - new laws surrounding paid sick, family and medical leave are also on the rise at the state level. Issues surrounding hours worked and paid by non-exempt employees also continue to remain an issue especially for employers who face more demands for a remote work environment even at the paralegal and secretary level - positions which are commonly non-exempt and overtime-eligible. While the list could go on and on, I'll let this serve as a starting point as employers prepare to close the door on 2019 and its issues and prepare for more to come in 2020.

Reprinted with permission from the November 14, 2019 issue of The Legal Intelligencer. © 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.