On February 23, 2018, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its annual Hot Topics in Employment Law seminar to an audience of nearly three hundred clients and members of the Baltimore business community. The topics covered throughout the seminar included sexual harassment in the #MeToo era, drugs and alcohol abuse in the workplace, and the 2017 year in review. Here are the highlights:
Sexual Harassment in the #MeToo Era
A 2016 Equal Employment Opportunity Commission (“EEOC”) report found that sexual harassment remains a persistent problem in the office. This comes as no surprise as the #MeToo movement continues to reveal instances of sexual misconduct throughout the workplace. Presenters explained practical tips for employers to prevent sexual harassment and provided general guidance for how to deal with allegations of sexual harassment. The biggest takeaways from the presentation are that employers must be proactive, train supervisors and staff, promptly investigate complaints, and take prompt remedial action.
Drugs and Alcohol Abuse in the Workplace
In order for an employer to effectively regulate drugs and alcohol in the workplace, it must have a written drug policy. Notably, companies with represented workforces must keep in mind that drug and alcohol policies concern mandatory subjects of bargaining. An employer can discipline employees for substance or alcohol use in violation of the policy. However, employees seeking treatment for alcoholism or substance addiction have a right under the Family Medical Leave Act (“FMLA”).
Under the Americans with Disabilities Act (“ADA”), alcoholism and addiction are usually considered disabilities entitling employees to accommodations. Accommodations generally consist of leave for a rehabilitation program or for treatment meetings. Employees who are currently using drugs are not considered individuals with a disability, and therefore do not need to be accommodated under the ADA. Further, most states, including Maryland, Virginia, and the District of Columbia, do not require that an employer accommodate the use of medical marijuana.
2017 Year in Review
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Supreme Court (“SCOTUS”), Department of Labor (“DOL”), and the EEOC in Review
SCOTUS failed to decide any substantive employment law cases this year. However, the DOL revoked its guidance regarding joint employment and independent contractors, reinstated its Wage and Hour opinion letters, and issued a new test for interns. It is still working on its salary test for exempt employees, which is forthcoming in 2018. Lastly, the EEOC put out its Strategic Enforcement Plan for 2017-2021, which identifies the areas where it will focus its attention and includes eliminating barriers in recruitment and hiring, inflexible leave policies, pregnancy discrimination, non-traditional workforce, equal pay protections for all workers, mandatory arbitration, and releases or waivers of claims.
The biggest trend in employment law is the recent wave of state level Paid Sick Leave laws. Most recently, Maryland enacted its paid sick leave law, which is detailed more fully here. Further trends include states enacting “ban the box” laws, which prohibit employers from inquiring into an applicant’s criminal history until a certain point in the hiring process, and laws prohibiting inquiries into salary history.
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National Labor Relations Board (“NLRB”)
Currently, the NLRB is dead-locked, but late in 2017 there was a brief and active period where Republicans held the majority. During that time, the NLRB restored the traditional standard for the joint employer test, requiring that there must be direct and immediate control over essential terms and conditions of employment. The NLRB also returned to the “community of interest” standard for determining appropriate bargaining units. Finally, the NLRB pulled back on its regulations of employee handbooks allowing for broader employer policies.
Cybersecurity is becoming a more prevalent concern for employers as data breaches are becoming a more pressing risk. The Maryland Personal Information Protection Act requires employers to implement and maintain reasonable security procedures and practices. Essentially, whatever data an employer collects, it must protect. In this Circuit, a person only has the right to sue after a data breach if the disclosed information is actually used, but the level of harm that must occur to the person is unclear.
Immigration has become a hot button topic under the new administration. It has never been more important to ensure that companies are in compliance with existing immigration laws and regulations. Recently, H1-B petitions have been denied at an increasing rate and there have been a drastic increase in Requests for Evidence. Employers need to plan ahead because employees with temporary work authorizations may not be able to remain in the country long-term.
Tax changes in 2017 have implications moving forward. Among other changes, an employer can now take a tax credit for paid leave, but can no longer take a deduction for a sexual harassment settlement made pursuant to a non-disclosure agreement.
We hope to see you at our 2019 Hot Topics Seminar and in the meantime, stay tuned for any changes in the areas of law throughout the remainder of 2018.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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