By Jonathan k. Driggs, Attorney at Law
As we enter a brand new year, here’s my list of a few important employment law issues that employers should keep in mind. While this list isn’t meant to be exhaustive or all inclusive, it should provide a helpful start.
- Federal agencies are empowered and looking to expand the law in favor of employees whenever possible. While the US Congress is tied up in knots (we’re unlikely to see employment-related legislation passed during the 2013-2014 term), federal enforcement agencies like the Equal Employment Opportunity Commission and the US Dept. of Labor will continue to ratchet up enforcement efforts against employers due to Pres. Obama being re-elected. Now is generally not a good time for employers to tryout creative arguments about why a particular law doesn’t apply to their organization. These agencies are in no mood to narrow employees’ legal protections.
- Disability is becoming the next “super” protected class. If I were to vote on which employment law will surge to the forefront during our new millennium, I would choose the Americans with Disabilities Act (ok, ok, with over 985 years to go, I may be going out on a limb here, but….) In 2008, the ADA was amended, resulting in a greatly expanded definition of “disability.” As a result, many conditions that last only a few months or more are now covered (and the impacted employees are eligible for accommodations from their employers). Many employers—especially smaller ones—seriously underestimate their obligations under the ADA. Consider the following:
- The ADA is probably the EEOC’s #1 enforcement priority.
- ADA cases have increased more than 70% since 2005 (becoming a close 3rd to sex discrimination claims) on expected to continue to increase.
- The ADA applies to employers with only 15 or more employees.
- The technical demands of providing “reasonable accommodations” make the ADA a lot trickier to comply with than many other EEO laws.
- The EEOC is actively trying to expand the protection the ADA provides. For example, the EEOC is pushing the concept of leave (time off from work) as a reasonable accommodation. As a result, many employers who are not big enough to be covered by the Family & Medical Leave Act are now expected to provide FMLA-like leave to disabled employees under the ADA. Wow! This is big!
As a result, here’s a couple of predictions for 2013: 1) a Hollywood celebrity couple will get divorced, and 2) not only will we continue to see more ADA claims filed—we will start to see more employers lose ADA claims (ok, so I wanted at least one of my predictions to be “for sure” J). In the New Year, even small employers (with 15+ employees) need to get ADA-educated or face unhappy consequences.
- It’s time to get fully compliant with wage and hour laws. For many years, wage and hour laws have been under-enforced. With information readily available on the internet, and increased enforcement activity on behalf of the US Dept. of Labor, the trend is definitely reversing. Prudent employers are reviewing their wage and hour practices (including, but not limited to: time keeping, overtime pay, and exempt classifications). In my experience, this is often where an employer’s largest liability risks can be found. It is also time to get real about independent contractor relationships—that old saying about “what quacks like a duck” has application to independent contractors classifications (if an individual is functioning like an employee, he/she needs to be classified as an employee).
- Prepare for Healthcare reform. Wow, I left a real doozy for the last one. 2014 is a big year for implementation of the new healthcare reform laws and that means that 2013 has to be a year of preparation. While this issue is outside of my particular expertise, employers should be carefully consulting with their benefit providers and other experts regarding the impact of healthcare reform.
This article should not be construed as legal advice. Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved.
Jonathan K. Driggs is an employment law attorney with over 19 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com
Jonathan’s popular “Employment Law for Managers Seminar” is being offered by the Salt Lake Community College’s “Custom Fit Program” at significantly discounted rates for “for-profit” employers (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers). The seminar will be held on Thursday, February 6, 2013 at the Miller Campus in Sandy. For details and registration contact: Shannon Strickland at SLCC Custom Fit at 801-957-5293.
For general information about the contents of Jonathan’s Employment Law for Managers Seminar, see: http://www.jkdlawpc.com/seminars/employment-law-for-managers-seminar/