Managing Employees Legally In 2019

By: Bob Goldberg, RSPA General Counsel

The new year has brought a host of new laws and regulations affecting how to manage your employees. The new Congress is also poised to expand employee rights and employer responsibilities. Complying with the law and treating employees fairly and equitably has always been a Reseller objective. To continue that mission here are several areas for your attention.

Salary History. Since 2016 ten states and ten local governments have adopted laws banning inquiries as to an applicant’s salary history. The rationale behind these restrictions is one’s salary history tends to limit compensation and may not reflect the value of the services being provided. It is further thought that reliance on past and present pay levels contributes to pay disparity between men and women, and women of color in particular. Consider removing any salary history question from your employment application.

ADA Accommodations. The Americans With Disabilities Act requires employers to make “reasonable accommodations” for an employee with a special need. Courts and regulators express different standards as to what is reasonable. The requirements are going to become more challenging as employees request permission to bring emotional support animals to the workplace, seek flexible schedules, and remote work options. The line between accommodation under the law and abuse of the law is growing closer.

Marijuana. Many states have passed laws allowing the sale of medical marijuana. Fewer, but growing number, allow recreational marijuana use. Employers face new challenges in drug testing and addressing requests for accommodation from medical users. Meanwhile possession of marijuana remains a Federal offense. Review your policy and procedure manual for compliance with current requirements.

Sexual Harassment. Sexual harassment has always been a workplace concern. The #MeToo movement has broadened the scope and time period for complaints. Consider bringing in a consultant to discuss proper behavior, lodging a complaint, investigating a complaint, and resolving the matter. The rules have changed. Do not get caught a decade behind.

Off the Clock Suits. As previously discussed in this column communicating with employees on a regular basis after hours may result in a claim for overtime compensation. Cell phone and computer records easily establish hours worked. Resellers should have a definite policy on overtime work and enforce it. Remember, outside sales people are exempt from overtime requirements. The biggest concern are technicians who may work longer to complete a call or file reports at the end of the day.

Social Media. Employers are increasingly expected to act as the Facebook and Twitter police. With cyber-bullying and textual harassment moving into the workplace, Resellers will continue to face difficult decisions on when and how to terminate employees for something said on social media about another employee or the company itself. Another opportunity for a clearly stated company policy.

Paid Sick Leave. States and cities continue to pass laws requiring different levels of paid sick leave. Check both your state and city to determine what the requirements are. Establish if there are rules regarding carryover time from year to year and/or cash value for unused time. If your dealership has offices in more than one location the rules may vary among your employees. Typically, a Reseller will choose the most generous policy and apply it to everyone.

Family and Medical Leave Act. The FMLA has always been a difficult regulation to understand. If you have less than fifty employees you can ignore the federal act, but may be subject to a state act. Employees have used the FMLA seeking intermittent leave for headaches, sore backs, and other lingering conditions that can turn into a permanent license to be absent at will. A well written and enforced policy can aid in these situations.

Employment law is complex with amble room for mistake. RSPA members should utilize the Legal Hotline for guidance in these areas.