Employers will face new challenges in 2022 while battling old ones.
Here are some major regulatory and compliance trends to watch this year, as well as some actions we recommend taking throughout the year:
1) Minimum wage increases. Twenty-five states and Washington, D.C. will increase the state minimum wage in 2022, with 21 of them having taken effect on Jan. 1. Three states will also see corresponding increases to the exempt salary thresholds.
Action to take: Review wages paid to all employees to ensure they meet minimum wage standards and possibly adjust those who are close to the minimum wage to prevent wage compression.
2) National Labor Relations Act (NLRA) initiatives. The pro-labor majority of the National Labor Relations Board (NLRB) is reviewing several workplace rules to give employees more protections. Some initiatives include defending protected, concerted activity, including using company networks and systems, redefining independent contractors, prohibiting and penalizing wage theft, and enforcing compliant handbook and policy language.
Additionally, the U.S. Department of Labor (DOL) and NLRB signed an agreement to share information, training and enforcement more freely, thereby increasing the possibility of cross-agency investigations and added penalties.
Action to take: Stay up to date with rulings and changes that will impact all workplaces. Review your policies, procedures and actions to ensure all employees can exercise their rights. Ensure compliance with wage payment practices and employee or independent contractor classifications.
3) Discrimination protections. State, county, and city governments will continue to pass laws expanding protections for certain characteristics, such as pregnancy and childbirth, natural hair and protective hairstyles, sexual orientation, gender identity, gender expression, COVID-19 vaccination status, homelessness or immigration status.
Laws are also being strengthened to prohibit retaliation against any employee who makes a valid discrimination or harassment claim, files a discrimination or harassment complaint with a federal or state agency, or participates in any related investigation whether internal or by legal authorities.
Action to take: Know all the federal, state and local laws that apply to your workplace and employees. Ensure there is no adverse employment action taken based on protected characteristics. Investigate any complaints. Draft and enforce policies prohibiting discrimination, harassment, sexual harassment and retaliation.
4) Marijuana legalization. Thirty-seven states and Washington, D.C. have legalized marijuana in some form while nine others have decriminalized it or legalized CBD oil. Initiatives to expand the legalization of medical and recreational marijuana use are expected. The federal government is also looking into options to legalize marijuana in some form.
Action to take: Understand the marijuana laws in your state and how they impact your policies and procedures, especially for drug testing and disciplinary action.
5) Restrictive covenants. Federal and state governments are reviewing legislative options to limit non-disclosure, confidentiality, non-compete and non-solicitation agreements so employees have more latitude and protections, especially if little consideration is given.
Action to take: Have any restrictive covenants regularly reviewed by legal counsel familiar with local employment law.
6) Independent contractors. In addition to the NLRB reviewing independent contractor definitions, the DOL may join some states in refining the tests and criteria for independent contractors to ensure workers are properly classified.
Action to take: Review all current independent contractor relationships and ensure they meet the test under state law as well as DOL and IRS regulations.
7) Paid leave. President Joe Biden and Congress will continue to push for paid family leave and paid sick time on a federal level. In the meantime, several states have passed new paid or unpaid sick or leave laws while others are expanding leave laws currently in place. Some local governments are also passing sick leave laws.
Action to take: Understand what leave laws apply to your employees based on where they work. Draft procedures so all requests are handled consistently.
8) COVID-19 quarantining. The Centers for Disease Control and Prevention (CDC) has changed their guidance for those who are exposed to or who are asymptomatic or have recovered from mild symptoms after contracting COVID-19. However, some states have yet to update their guidance, so there may be conflicting requirements.
Action to take: Check both CDC and state health department requirements on quarantining when dealing with employees who are exposed or who test positive.
9) Privacy and data security. Protecting consumer and employee information will remain a priority for several states. We have already seen many states pass strict laws regarding how businesses and employers gather and protect information, as well as actions that must be taken if there is a breach threatening the security of that information.
Action to take: Consult data security experts to ensure all the sensitive and confidential information you gather on customers and employees is protected. Take required actions if there is a breach.
Paige McAllister is vice president, HR compliance, Affinity HR Group Inc. Affinity HR is the endorsed HR partner of Big “I" Hires, the Independent Insurance Agents of Virginia, Big I New York, Big I New Jersey and Big I Connecticut.
Affinity HR Group looks forward to supporting you in 2022, no matter your HR challenge. Connect at 877-660-6400 or by emailing staff.