Looking Forward to 2016

A new year is upon us, and it is shaping up to be a big one in terms of political and regulatory change. As the last year of the Obama presidency, there is a lot of pressure on the administration to leave a mark – including in the area of labor law. It is also an election year, which may increase the pace of legislating in both Congress and state houses around the country. Here are five possible changes on the horizon of which every company should be aware:

1. New Salary Threshold for Exempt Employees: We know this new rule is coming in 2016. It was announced last year; and employers collectively gasped as the minimum salary amount was proposed to be raised from $23,000 to over $50,000. No one knows what the new minimum salary will be for exempt employees, but it will likely be close to the proposed amount, and a large increase from the current status quo. If you have not already analyzed how many exempt employees would fall under this threshold, and developed a plan to either offer wage increases or convert these employees to hourly, you have a “to do” list for 2016.
2. Changes to Overtime Duty Tests: Increasing the salary threshold for exempt employees is a big change, but many believe the administration will not stop there. Possible changes to overtime regulations include re-focusing the tests on the amount of time an employee spends on non-exempt tasks, instead of the importance of their exempt tasks. For litigation, this change is a nightmare because it makes it easier for employees to exaggerate, or outright fabricate, a description of their duties to benefit their case. Most employers only track total time at work, not how much time an employee spends on a particular task. Litigating how much time a manager spends managing, versus helping subordinates on a production line, devolves very quickly into a “he said, “she said.”
3. Ban the Box: These laws have been sweeping the country, outlawing application questions related to an individual’s criminal record. In 2016, the trend is likely to continue with more cities and states passing such laws. It will prove harder than ever for multi-state employers to keep track of which application forms can be lawfully used in which jurisdiction, and push many to throw out the conviction question nationwide for consistency.
4. Local Minimum Wage Increases: If you have employees in a “blue state” or city with a predominantly Democratic city council, you likely have already seen an increase in minimum wage, or will have one on the ballot next year. The federal minimum wage rate of $7.25 has not changed since 2009. As of 2015, 29 states plus the District of Columbia had minimum rates above the federal amount. Many of these states also index their minimum wage rate to inflation, which means an automatic increase periodically. The takeaway is that it will become harder than ever to keep track of all of the different minimum wage rates if you have a workforce spread out geographically.
5. LGBT Rights: Last year was the year the Supreme Court opened the door for a constitutional right to gay marriage. That decision will be relied upon to push for additional rights in all areas of society, including the workplace. The federal government has already ruled that “spouse” under the FMLA includes same sex spouses, and most employers have made similar allowances for paid sick time and bereavement policies which reference a “spouse.” If you have not already, conduct a review of your policies and procedures to analyze whether you have any inconsistencies that could serve as the basis for a discrimination claim.