The Top 10: Employment law year in review

2015 was a banner year in employment law. Human resources personnel will be busy throughout 2016 prioritizing the need to update and implement policies and train employees and management on the many changes. For your year-end entertainment, we count down 2015’s "Top 10" hit parade.

1. Misclassifying non-exempt employees. Lucrative attorneys’ fees continue to motivate lawyers to file individual and class actions on behalf of improperly classified employees. Employers often look at titles rather than job duties to determine that “salaried” jobs are synonymous with exempt status or they fall victim to making inappropriate deductions from the salary of exempt employees, risking reclassification as non-exempt employees.
    
2. Salary threshold changes. The Department of Labor proposed significant increases to the minimum weekly salaries of exempt employees. The indications from Washington are that these changes may be adopted by the spring or summer of 2016, resulting in the doubling of some employees’ salaries in order to maintain them as exempt. Employers are advised to use this lead time to conduct a cost-benefit analysis, comparing the cost of increasing exempt employees’ salaries versus having them be non-exempt and paying for additional overtime. 
    
3. Minimum wage increases? Several legislative and a proposed ballot initiative are underway in Ohio to significantly ratchet up the current minimum wage. 
    
4. Class actions on the rise. Employers often fail to pay for all hours worked. Do you track and pay non-exempt employees for time spent checking emails or being on call outside of regular hours? Do you automatically deduct lunch breaks of non-exempt employees who forget to clock in or out?  Plaintiffs’ lawyers are just a click away, happy to interpret those few unpaid minutes here and there into a payday.
    
5. Independent contractor or employee? State and federal agencies have stepped up enforcement and information-sharing efforts to identify misclassified workers and collect revenues. The Department of Labor recently published guidance on what distinguishes an employee from a contractor for wage-hour purposes.
    
6. Joint employer liability. The National Labor Relations Board (NLRB) recently held that a recycling company’s temporary staffers retained through a placement agency were jointly employed by the recycler and the staffing company, making them eligible to vote for a Teamsters’ representation petition. To limit such outcome surprises, companies relying on staffing vendors must clearly demarcate who is in direct and indirect control of the workers.
    
7. Handbook challenges. The NLRB was busy on many fronts, including finding handbook policies unlawful when they attempted to prohibit certain employee conduct. The board’s 30-page memorandum of "don’ts" berates limitations on breaches of confidentiality, policies that discipline employees who walk off the job and policies that prohibit disrespect toward management, among others.
    
8. “Quickie” elections. The NLRB reduced the six-week period that employers had to defend against a union organizing campaign to just two weeks.
    
9. Sweet child of mine. Most employers with 50 or more employees must provide lactation breaks to nursing mothers; however, many companies have not implemented this requirement or updated their handbooks accordingly, potentially creating Fair Labor Standards Act violations.
    
10. O-H-I-O or O-High-O?  While Ohio voters said no to legalizing recreational and medical marijuana in November, there are already five initiatives underway to bring marijuana back before voters in 2016. Stay tuned.