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Employer Concern (Fear?) in 2018

As we open the book on Calendar 2018, there are various concerns for Employers. Obviously, the recent passage of a major overhaul of the United States Tax Code will present many opportunities to Employers, both from an accounting perspective (alleged tax savings) and also from a perspective of handling payroll systems. Obviously, this will be a continuing concern in 2018, but there are three (3) other areas that may "bode ill" for Employers.

1. Sexual Harassment is Back with a Vengeance.

How many of you remember the Clarence Thomas/Anita Hill saga that arose when Clarence Thomas was nominated for a United Supreme Court Justice position? Shortly after Anita Hill's blockbuster allegations against Judge Thomas, sexual harassment charges rose by 71% with the Equal Employment Opportunity Commission. Does the current environment of sexual harassment claims initially involving the "Hollywood Elite", and now claiming and affecting the careers of Politicians, Chief Executive Officers, and even Federal Jurists, open the doors for more claims? Time Magazine named the "Silence Breakers" as the Person of the Year for 2017. There is no doubt that Plaintiff's Lawyers "smell blood in the water" and it is a fairly safe assumption that sexual harassment claims will drastically increase. Employers must review their sexual harassment policies, update those policies, and make sure their HR Professionals, both in-house and outside resources, are readily available to deal with any claim quickly and efficiently. From a Defense Lawyer's perspective, it is an "extremely bad time" to try a sexual harassment case!

2. Exempt Salary Increases

Our short term memories of the Obama attempt to increase the salary threshold from exemption for overtime pay is fresh in our minds. If there is anyone who believes that there will not be some effort made by the Trump Department of Labor to deal with this issue in the near future, they will be sadly mistaken. The salary threshold exemption is being reconsidered and reworked and, in fact, in August, Employers were asked a number of questions dealing with their feelings on the United States Department of Labor, making a modification in the minimum salary from $23,660 to a yet unnamed figure. This is something that is on the very near horizon in 2018 and has the potential to impact Employee morale. It is a "very good time" to review pay scales/salary structures in order to position a company to favorably deal with this issue.

3. Marijuana

While still illegal in the Federal Venue, there have been a vast number of States (at least twenty-five (25)) who have legalized marijuana for medicinal purposes and a number of States - California as of 2018, that have legalized it for recreational purposes. While most of those regulations still allow Employers to maintain their workplace rules dealing with reporting to work under the influence of marijuana, there have been recent inroads into that area. Recently, the State of Massachusetts found that an individual who was medically prescribed marijuana for a serious medical condition was subject to the regulations under the Americans with Disabilities Act and, therefore, was protected from disciplinary treatment. Pressure is also being exerted to view marijuana as "any other pain medication". As more and more States legalize marijuana, either for medicinal or recreational purposes, pressures will be exerted on Employers with regard to marijuana testing. Is it in the interest of an Employer to modify its marijuana testing procedures now to deal only with safety-related positions and not all positions? That is an issue that may (will?) have to be dealt with shortly.

While 2018 will be viewed as a potentially less stressful year for Employers, the sexual harassment bandwagon, the potential exempt salary modifications and marijuana use will potentially expose Employers to legal pitfalls. The wise Employer deals with these issues now, before being forced to deal with them!

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at [email protected]

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