Thursday, December 22, 2016

2016: Year in Review

As 2016 comes to a close, there is understandable concern about and interest in changes to employment laws and regulations that may be initiated by a new federal administration. Although enforcement and regulatory priorities of agencies like the Department of Labor and the EEOC may be altered, it’s important to remember that the pace of bureaucratic change can be slow, and that Congress and the courts will remain in the mix. We believe that it’s almost impossible to predict the pace of change or the ultimate impact of the new administration’s agenda.
Even with the prospect of change ahead, it’s valuable to look back on the year just ending and note important trends in key areas. 
EEOC Highlights
The EEOC has spent 2016 explaining and regulating. The agency updated its strategic enforcement plan for the next four years, issued regulations describing how the ADA and GINA apply to employer-sponsored wellness programs, held public meetings on the use of big data in employment decision-making and promoting diverse and inclusive workplaces in the tech sector, created The Small Business Resource Center, updated its enforcement guidance on national origin discrimination and retaliation, significantly revised pay data reporting requirements for employers with more than 100 employees, and issued publications on the rights of workers with medical conditions. The agency also continued to pursue Title VII protection for sexual orientation and gender identity through lawsuits—including the Hively case currently being reconsidered by the Seventh Circuit Court of Appeals—and issued a fact sheet on bathroom access for transgender employees. On top of all of that, the EEOC increased the number of charges it resolved this year and secured more than $482 million for victims of workplace discrimination.
Wage & Hour Highlights
As everyone surely knows by now, the Department of Labor’s expansion of overtime protection under the Fair Labor Standards Act was finalized in May, scheduled to take effect in December, and stopped by a temporary injunction in late November when 21 states and several business groups went to federal court in Texas. The Texas court’s injunction has been appealed to the Fifth Circuit, the battle in the lower court continues, and so far the DOL says it will continue to fight for implementation of the rules. 
The overtime injunction wasn’t the only setback for the DOL this year. In May, the agency issued its controversial “persuader rule,” requiring employers to disclose any arrangement with outside consultants in which the consultants attempt to influence employee unionization efforts. In November, a court issued a permanent order declaring the rule unlawful.
There was a lot of activity at the state and local levels related to  minimum wage. Twenty-five states, cities, and counties approved minimum wage increases for 11.8 million workers in 2016. In the November elections, voters in Arizona, Colorado, Maine, and Washington approved ballot measures to increase their state’s minimum wages, while South Dakota voters rejected an attempt to lower the minimum wage for youth workers. California, Oregon, New York City, and Washington D.C. approved future increases.
Leave Laws & Policies
Employee leaves also received a lot of attention this year. The DOL issued new FMLA guidance and a new FMLA poster, and the EEOC issued a resource page on employer-provided leaves under the ADA.
Just a few days ago, Washington DC passed one of the country’s most generous paid family leave bills. In November, voters in Arizona and Washington passed statewide paid sick leave laws. Earlier this year, San Francisco and New York state passed comprehensive paid family leave policies, and our own cities of St. Paul and Minneapolis enacted ordinances requiring private employers to provide paid sick leave. The DOL released a rule requiring federal contractors to provide their employees with seven days of paid sick leave annually.
Many, many private employers also expanded their leave policies this year. Companies such as Chipotle, IKEA, Netflix, Microsoft, American Express, 3M, and many others announced expanded sick and/or family leave policies.
Sexual Harassment & Sexual Assault
Unfortunately, sexual assault and sexual harassment continue to be a major problem in the workplace. We’ve written about it a lot this year. The EEOC issued a report with recommendations for harassment prevention.
National attention was drawn to these issues in 2016. Gretchen Carlson’s allegations and suit concerning former Fox News chairman and CEO Roger Ailes was major news. Several high-profile cases of sexual assault and harassment on college campuses drew national attention, most recently in our home state of Minnesota. And sexual assault and harassment became an issue for both Democrats and Republicans in this year’s presidential campaign.
Increased awareness of sexual harassment and sexual assault caused by media attention and public discussion can result in expanded enforcement agency focus on workplace claims. It may also increase the number of claims made. Employers should remain vigilant about enforcing anti-harassment policies, investigating complaints, and taking appropriate action in response to inappropriate workplace behavior. 
Those are the 2016 developments and trends that strike us as particularly important, but they aren’t the only ones. There have been many other developments in employment law this year, as others have observed.
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Thanks for reading The Employment Law Navigator this year. We’re going to take next week off, but will be back with our next That is So Last Week recap on Tuesday, January 3. Happy holidays to all!