KingSpry | Employment Law Changes and Expansions to Watch in 2019

Top Expansions and Changes to Employment Law to Watch For in 2019

Photo of attorney Keely J. Collins

Posted on January 3rd, 2019
by Keely J. Collins

Looking ahead to 2019, business leaders may manage risk by being advised of the following expansions of and changes to employment law.

The return of the Department of Labor’s “Overtime Rule”…revised.

Remember the Department of Labor’s Final Overtime Rule that was set to double the minimum salary threshold for white collar exempt employees, effective December 1, 2016? As you may recall, in the eleventh hour, on November 22, 2016, the enforcement of this rule was prevented by the ruling of federal court judge in Texas.

The long-awaited “overtime rule,” providing new salary-level thresholds for the white collar exemption, is slated to be released in January 2019, according to a DOL Notice of Proposed Rulemaking. Based on prior comments by Secretary of Labor Alexander Acosta, employers may expect an increase that is based on inflation.

A Pennsylvania-specific salary threshold is also on the horizon.

There is also a Pennsylvania-specific salary threshold increase possibly on the horizon for 2019. Mid-2018, the Pennsylvania Department of Labor and Industry published proposed regulations to update Pennsylvania’s overtime pay rules. If adopted, the state law would increase the minimum salary threshold (salary level test) for employees to qualify for the white collar exemptions to overtime requirements. Under the proposed regulations, the current minimum white collar employee salary level, ranging between $155 per week to $250 per week depending on job duties, would be increased systematically over a period of three years and adjusted for inflation thereafter. More specifically, the increase would begin with $610 per week in the first year, increase to $766 per week in the second year, increase to $921 per week in the third year, and, subsequently increase with inflation.

The EEOC is becoming more accessible to employees.

In the second half of 2017, the prevalence of workplace sexual harassment dominated the attention of employers and their legal counsel.  For 2019, the Equal Employment Opportunity Commission (“EEOC”), an agency that enforces anti-harassment laws, announced its plan to focus more funding and attention on investigating harassment claims and allocated a significant amount of budgeted funds to be more fully accessible to the public particularly via mobile device. For employers, this means a potential increase in EEOC claims.

Pennsylvania employers must exercise care when collecting and maintaining employees’ confidential information.

In December 2018, the Pennsylvania Supreme Court held that employers have a duty of care to protect the personal and financial information employees are required to provide to their employers.  This case was brought against University of Pittsburgh Medical Center after employees’ personal and financial information was hacked from the Medical Center’s information database.  This duty of care to guard against the breach of employees’ sensitive information is separate and apart from other privacy laws for health information articulated under the Americans with Disabilities Act (“ADA”) and the Health Insurance Portability and Accountability Act (“HIPAA”).

The joint employer test will be clarified.

The National Labor Relations Board has issued a propose rule to clarify the joint employer. The comment period for the rule closed on December 13, 2018 and the final rule is expected in 2019. The Department of Labor is expected to release its own joint employer rule.

How can employers manage risk in 2019?

  • Identify the classification of employees impacted by a salary threshold increase and determine the most cost-effective way to comply. In light of the continued uncertainty, however, employers should be cautious about entering into any employment contracts based on anticipated but unknown changes.
  • Consistently investigate and respond appropriately to all claims of harassment. Employers are strongly encouraged to develop and maintain a policy to ensure consistency and defend against potential claims.
  • Exercise caution in collecting and maintaining employee information. If certain information absolutely must be maintained, employers are best advised to work with IT support in truncating, encrypting, or taking other measures to carefully protect employees’ information.
  • Stay tuned for more clarification on the joint employer test.

 

The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice GroupJeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.