Personnel Practices: Year In Review

by: C. Alexander Chiulli, Esq. and Kristen M. Whittle, Esq.

PERSONNEL PRACTICES: YEAR IN REVIEW

As we reflect on this past year, employers should take a moment to review some important developments in the employment arena from 2016. The following summarizes important updates from this past year, and provides suggestions for action steps as we head into 2017.

Beware of Uncertainly Surrounding Wage and Hour Requirements

Many employers have been closely following the U.S. Department of Labor (DOL)’s proposed drastic rule changes regarding the eligibility of workers for overtime pay for work performed in excess of 40 hours per week. The proposed rule, which made certain “white collar” employees earning less than $47,476 eligible for overtime wages, nearly doubled the prior salary threshold of $23,660 for exempting workers from overtime pay. Previously scheduled to take effect on December 1, 2016, this significant change stood to extend overtime benefits to an estimated 4.2 million workers and affect numerous businesses including retailers, restaurants, hotels, startups, nonprofits, and schools. However, just one week prior to its implementation, a federal judge in Texas issued a nationwide injunction blocking the new rule.

Although the Texas decision states that employers are not required to comply with the new rule, it is unclear as to whether that decision will be overturned by an appellate court, or whether the new presidential administration will make further changes to the proposed rule. To the extent that employers made changes to their overtime pay structure in anticipation of the rule change, it may be wise to leave those changes in place as we anticipate further updates. Moreover, taking promised overtime pay away from employees may have a negative impact on morale. Employers should continue to monitor for further changes to the overtime rule in the year ahead.

Update Workplace Policies

Due to ever-changing laws and regulations in the employment arena, employers should regularly audit workplace policies for compliance. The beginning of a new year can provide a good opportunity to implement any needed changes. For example, employers should review and revise policies such as:

• Paid time off (PTO) policies. Private employers in Rhode Island are generally not required to grant paid time off to employees for illness, vacation, or personal reasons. Though if PTO is promised through a workplace policy, employee handbook, or contract, then it must be given to the employee.

• Sexual harassment policies. Rhode Island employers with 50+ employees are required to implement policies designed to prevent and address sexual harassment in the workplace. Best practice dictates that all employers implement such a policy. A sexual harassment policy should contain specific language regarding the illegality of sexual harassment, including an unambiguous statement that it is unlawful to retaliate against workers for participating in a sexual harassment investigation.

• Privacy policies. In today’s technology-driven work environment, employee privacy concerns should be carefully considered. An employee’s expectation of privacy can be an important factor when evaluating the merit of privacy violation claims. Privacy policies allow the opportunity to provide notice and transparency to employees about what privacy rights do and do not exist in the workplace. Relatedly, employers should establish responsible practices for collecting and maintaining their employees’ private information, and should audit such practices regularly.

Ensure that Posted Information is Up-to-Date

The turn of a new year is also a good time to update posted information in the workplace. Both federal and state law require that employers prominently post certain information in frequently accessed areas of the workplace, such as a lunchroom or other common area. Posters required by the U.S. Department of Labor are available here: https://www.dol.gov/general/topics/posters#workplace-posters. The Rhode Island Department of Labor and Training’s posters are available here: http://www.dlt.ri.gov/lmi/business/post.htm.

C. Alexander Chiulli, Esq. and Kristen M. Whittle, Esq.

Associates, Barton Gilman LLP

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