The start of a new calendar year presents a great opportunity to plan for the year ahead. As employee experience guidance and compliance requirements evolve, keeping abreast of trends and pending legislation allows you to prepare for challenges coming down the pike. In the spirit of proactiveness, here are 6 topics to keep on your radar in 2024:
For additional details on these trending topics, continue reading below. Make sure to check back often for updates and next steps.
DOL’s New Overtime Rule
The US Department of Labor issued a proposed overtime rule on September 8, 2023. This rule would increase the minimum weekly salary for most exempt employees from $684 per week to match the 35th percentile of weekly earnings of full-time non hourly workers in the lowest-wage census region. This is projected to be somewhere between $1,059 and $1,158 per week. The rule would also adjust this minimum salary level for inflation every three years.
What next? The comment period on the proposed rule closed on November 7, 2023. The DOL will review comments before publishing a final rule and plans to have that rule take effect 60 days after it is published in the Federal Register.
Action item: Determine which employees currently earn less than the new expected minimum. Review your compensation plan and decide if you will increase salaries to meet the new minimum to maintain exempt status, or if you will reclassify employees as non-exempt. Prepare managers to have conversations around compensation. Check out our October blog post on compensation conversations here: https://myesc.com/navigating-compensation-conversations/.
*NYS Minimum Wage increased effective January 1, 2024. Check out our previous blog to ensure you are meeting the requirements: https://myesc.com/2024-updates-to-new-york-state-minimum-wage/.
NLRB’s Final Rule on Joint Employers
On October 26, 2023, the National Labor Relations Board (NLRB) released its “joint employer” final rule providing the standard for joint employer status under the National Labor Relations Act (NLRA). Under the final rule, as long as a company has the authority to control one essential term and condition of a worker’s employment, the joint employer test will be satisfied.
What next? The final rule was scheduled to become effective on December 26, 2023, but the NLRB extended the effective date to February 26, 2024 in hopes of resolving legal challenges.
Action item: While it is unclear if the final rule will take effect on February 26 because of pending litigation, employers should not wait to prepare for implementation. Review agreements with third parties (such as staffing agencies and subcontractors) to determine if they could be viewed as providing the right to control an essential term or condition of your workers’ employment.
NYS COVID-19 Sick Leave
COVID-19 Sick Leave legislation was signed into law in New York State in March 2020. The law provides job-protected paid leave to employees and does not include a sunset provision. Because this law is still in effect, employers should continue to provide qualified employees with sick leave under the COVID-19 sick leave law for up to 3 orders of quarantine or isolation (since the law went into effect).
The employer fact sheet can be found here: https://www.wcb.ny.gov/content/main/forms/PFLDocs/covid-19-sick-leave-employers.pdf. If you have questions regarding isolation or precautions to take if exposed to the virus, NYS is following the CDC’s guidance found here: https://www.cdc.gov/coronavirus/2019-ncov/your-health/isolation.html. The CDC’s isolation and exposure calculator is a good tool for information based on an individual’s unique circumstances.
What next? In order for a change to be made to this law, it will need to be amended or repealed. The NYS Senate currently has a bill in the early stages of the law-making process with the Labor Committee that would amend it. As part of the bill, a report has been requested from the Commissioner of Labor on the number of employees granted leave under the law for their review as amendments are considered.
Action item: Continue to follow NYS’s COVID-19 Sick Leave law. Stay tuned for updates on developments with the bill currently in the Legislature.
*The law requiring employers to provide paid time off for employees to get vaccinated against COVID-19 expired December 31, 2023. This law covered time away from work for vaccination (and boosters) only.
NYC Ban on Discrimination Based on Height & Weight
On Nov. 22, 2023, a law prohibiting height and weight discrimination within employment, housing, and public accommodations under the New York City Human Rights Law (NYCHRL) went into effect. Height and weight have been added to the list of NYCHRL protected classes. There may be some exceptions for particular jobs or categories of jobs for which a person’s height or weight could prevent performing essential duties.
What next? There is similar pending legislation at the state level on height and weight discrimination, and a bill on the city level which would prevent employment discrimination based on tattoos.
Action item: It is clear that legislation prohibiting appearance discrimination will continue to be a priority. Even employers who are not covered by the NYCHRL should consider these issues in their anti-discrimination policies.
AI & Discrimination
Artificial Intelligence, especially generative AI, has been all over the news in 2023. There are many HR considerations for AI in the workplace, including confidentiality, accuracy, and possible displacement of the workforce. Many employers have considered implementing AI policies outlining how to use AI to increase efficiency and improve performance while putting safeguards in place. Conversations around regulation have increased at the federal, state, and local level.
According to guidance from the EEOC, if an AI-based or algorithmic tool adversely impacts individuals of a particular race, color, religion, sex (which includes pregnancy, sexual orientation and gender identity), or national origin, an employer’s use of the tool could be a violation of federal law. President Biden’s recent Executive Order (EO) suggests regulating use and supporting workers as important to the development and use of AI.
The NYC Automated Employment Decision Tools (AEDT) Law became enforceable on July 5, 2023. The law prohibits an employer or employment agency from using an automated employment decision tool in making an employment decision unless the following requirements are met prior to using the tool: (1) it has been subject to a bias audit within the last year; and (2) a summary of the results of the most recent bias audit and distribution data for the tool have been made publicly available on the employer or employment agency’s website.
What next? As the use of AI for recruiting and hiring increases, New York City’s AEDT law may become a model for other jurisdictions. While AI may offer benefits, employers must ensure that any tools they use do not discriminate based on protected characteristics. Neglecting to consider this can result in violations of federal, state, and local anti-discrimination laws.
Action item: The EEOC recommends that employers ask AI software vendors if the tool has been evaluated for disproportionate harm to protected groups and do their own evaluations of any tool they are considering. For employers who already have AI tools in place, it is recommended that those evaluations continue, tracking the impact on your organization. Employers may need to consider training or hiring staff to ensure sufficient analysis skills are in place.
Social & Political Climate
There are many polarizing topics in today’s world ranging from the US presidential race to ongoing conflicts in Ukraine and the Middle East. The expression of opinions and feelings around these topics can lead to conflict in the workplace.
What next? Considering a contentious election season on the horizon in 2024 and the impact of ongoing world events, the polarizing social and political climate may require a response from employers.
Action item: Review your Code of Conduct to ensure it covers workplace civility, prohibits bullying, and promotes respect. Determine how you will respond if employees cross the line in their workplace interactions and consistently enforce those rules. Provide managers with talking points emphasizing civility and understanding to share proactively in team and one on one meetings.