What’s the sta­tus and the fu­ture of em­ploy­ment law?

The Mercury (Pottstown, PA) - - BUSINESS - By Ann Po­tratz J.J. Keller & As­so­ciates

As the 2017-2018 con­gres­sional cal­en­dar draws to a close, so does the like­li­hood of new em­ploy­ment laws mak­ing it out of the 115th Congress. While this means the end of the road for some pro­posed leg­is­la­tion, now is the per­fect time to re­view the many fed­eral and state laws that could still reap­pear next year.

Sev­eral fed­eral laws could make waves in 2019, es­pe­cially given the out­comes from the con­tentious 2018 midterms.

Paid fam­ily leave

Both Democrats and Repub­li­cans pro­posed paid fam­ily leave bills this year, though nei­ther of the two fron­trun­ners made much head­way be­fore the ses­sion ended. The Demo­cratic-backed Fam­ily And Med­i­cal In­sur­ance Leave (FAM­ILY) Act would pay up to two-thirds of wages for 12 weeks for new moth­ers and fa­thers, as well as those car­ing for fam­ily mem­bers. The bill would be fi­nanced by a pay­roll tax.

The Repub­li­can-backed Eco­nomic Se­cu­rity for New Par­ents Act bill would of­fer a tax credit for busi­nesses that give work­ers up to 12 weeks of par­tially paid parental leave. The leave would be paid for us­ing funds bor­rowed from the in­di­vid­ual em­ployee’s So­cial Se­cu­rity ben­e­fits.

Joint em­ployer rule

The Na­tional La­bor Re­la­tions Board (NLRB) is­sued a pro­posed rule to re­verse its con­tro­ver­sial Brown­ing-Fer­ris In­dus­tries of Cal­i­for­nia, Inc. rule. The 2015 rule ex­panded the def­i­ni­tion of a “joint em­ployer,” mean­ing that if more than one com­pany had the right to ex­er­cise power over a worker, even if one of the com­pa­nies didn’t use that power, they were all con­sid­ered em­ploy­ers for le­gal pur­poses (in­clud­ing union bar­gain­ing).

With the pro­posed rule change, the NLRB would re­vert to its pre-2015 in­ter­pre­ta­tion of joint em­ploy­ers, mean­ing that only the com­pany that ac­tu­ally ex­erted con­trol over the em­ployee (through hir­ing, fir­ing, dis­ci­pline, etc.) would be con­sid­ered an em­ployer for le­gal pur­poses.

Leg­is­la­tion may go dor­mant while Congress breaks for the hol­i­days, but em­ploy­ers should stay in­formed and aware that such ac­tiv­ity will likely be back next year.

Merg­ing the DOE, DOL

In June, the White House is­sued a 132-page pro­posal to com­bine the De­part­ment of Ed­u­ca­tion (DOE) with the De­part­ment of La­bor (DOL) into one new agency called the De­part­ment of Ed­u­ca­tion and the Work­force (DEW). The DEW would con­sist of four sub-agen­cies, in­clud­ing:

• En­force­ment: This group would be tasked

with en­forc­ing worker pro­tec­tion, wage and hour laws, oc­cu­pa­tional safety, as well as ex­e­cut­ing the re­spon­si­bil­i­ties of the DOE’s Of­fice of Civil Rights.

•K-12: Sup­port­ing state and lo­cal ed­u­ca­tion, this agency would fo­cus on im­prov­ing stu­dent achieve­ment and other school­based re­spon­si­bil­i­ties cur­rently han­dled by the DOE.

• Amer­i­can Work­force and Higher Ed­u­ca­tion Ad­min­is­tra­tion: AWHEA would be re­spon­si­ble for work­force de­vel­op­ment and vo­ca­tional ed­u­ca­tion,

with a fo­cus on higher ed­u­ca­tion, dis­abil­ity em­ploy­ment, and more.

• Re­search, Eval­u­a­tion, and Ad­min­is­tra­tion Agency: As its name states, REAA would fo­cus on pol­icy de­vel­op­ment through re­search and eval­u­a­tion.

Crit­ics of the plan point out that la­bor and ed­u­ca­tion are two dis­tinctly dif­fer­ent ar­eas of ex­per­tise and will lose valu­able at­ten­tion and re­sources in the merger. Sup­port­ers be­lieve that the ef­fi­cien­cies cre­ated by com­bin­ing two large agen­cies would negate the draw­backs.

Le­gal­iz­ing mar­i­juana

The pro­posed Mar­i­juana Free­dom and Op­por­tu­nity Act would re­move the drug’s clas­si­fi­ca­tion as a Sched­ule 1

sub­stance, essen­tially de­crim­i­nal­iz­ing pos­ses­sion at the fed­eral level.

Sup­port­ers of the act be­lieve that it would al­low states more free­dom to im­ple­ment their own laws. De­trac­tors state the ob­vi­ous points — that mar­i­juana is a dan­ger­ous drug and should re­main il­le­gal.

Among other things, the pro­posed law would al­low mar­i­juana to be taxed sim­i­lar to al­co­hol, di­rect­ing some rev­enue to the Small Busi­ness Ad­min­is­tra­tion; give the De­part­ment of the Trea­sury the author­ity to reg­u­late mar­i­juana ad­ver­tis­ing sim­i­lar to to­bacco; and di­rect other mar­i­juana tax rev­enues to agen­cies like the Na­tional High­way Traf­fic Safety Ad­min­is­tra­tion and De­part­ment of Health and Hu­man Ser­vices to study the

ef­fects of the drug.

Un­likely as it may be, the pas­sage of this law would have a sig­nif­i­cant im­pact on em­ploy­ers. Those cur­rently in mar­i­juana-friendly states might be us­ing the drug’s fed­er­ally il­le­gal sta­tus as ra­tio­nale for neg­a­tive con­se­quences for a pos­i­tive mar­i­juana test un­der their drug test­ing pol­icy. Those in states where mar­i­juana is banned will find them­selves ex­posed to a whole new set of con­cerns, in­clud­ing how to main­tain a drug-free work­place pol­icy, should they deem it nec­es­sary.

The key to re­mem­ber in all of this? Leg­is­la­tion may go dor­mant while Congress breaks for the hol­i­days, but em­ploy­ers should stay in­formed and aware

that such ac­tiv­ity will likely be back next year. Ann Po­tratz is an as­so­ciate ed­i­tor with J.J. Keller & As­so­ciates, a na­tion­ally rec­og­nized com­pli­ance re­source firm. The com­pany of­fers a di­verse line of prod­ucts and ser­vices to ad­dress the broad range of re­spon­si­bil­i­ties held by hu­man re­sources and cor­po­rate pro­fes­sion­als. Po­tratz spe­cial­izes in busi­ness top­ics such as dis­crim­i­na­tion and ha­rass­ment, back­ground checks, and se­cu­rity. She is the ed­i­tor of J. J. Keller’s Em­ploy­ment Law To­day news­let­ter and Essen­tials of Em­ploy­ment Law man­ual. For more in­for­ma­tion, visit www. jjkeller.com/hr and www. jjkeller­li­brary.com.

ANN PO­TRATZ

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