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