Crowe & Dunlevy attorney highlights biggest employment law issues
OKLAHOMA CITY – The beginning of 2021 was filled with hope that everything would start getting better and return to “normal.” But, instead, 2021 has been full of starts and stops to life and the economy.
As the year winds down, Crowe & Dunlevy labor and employment attorney Evan Way has compiled the top five legal issues impacting employers, what they mean for the future and what businesses can learn from the last 12 months.
COVID-19 – First, we can’t discuss employment law without mentioning COVID-19. It permeates every human resources department decision and leaves employers reeling with legal uncertainty. On Dec. 17, the Sixth Circuit Court of Appeals reversed the Fifth Circuit’s stay on OSHA’s emergency temporary rule (ETS) requiring all private employers with over 100 employees to be vaccinated or submit to weekly testing. Covered employers must now comply with the ETS by Jan. 10, 2022, but OSHA will not issue citations for noncompliance with the ETS requirements before Feb. 9, 2022, so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard. As of today, the requirement for all federal contractors to be vaccinated is stayed, and the Centers for Medicare and Medicaid Services rule requiring all healthcare workers to be vaccinated is also stayed. There are undoubtedly many legal challenges on the horizon regarding these three mandates including an appeal that has already been filed to the U.S. Supreme Court on the OSHA ETS, which ultimately means uncertainty in the short-term for employers. If your company fits into one of the categories currently in legal limbo, be proactive and have a contingency plan to implement the mandate(s) should any ever fully pass legal muster.
Great Resignation – Second, the Great Resignation has dominated op-eds, special-interest stories and baffled economists and professors alike. Most anyone who goes to a restaurant that has reopened will tell you that the quality of service has decreased. There are labor shortages across the service industry. This has led to longer lines, increased wait times and, generally, a decrease in service. But, interestingly, some sectors of the job market have grown during the Great Resignation, which suggests that workers are leaving lower wage jobs for higher wage jobs, not that workers are exiting the workforce altogether. We’ll see what the autopsy from social scientists and economists reveals in the coming years as the true legacy of the Great Resignation. For now, it means employers need to at the very least be more competitive and transparent on pay and benefits to attract workers.
Minimum Wage – Third, the Congressional push to increase the federal minimum wage has stalled. But that didn’t stop Tribal, state, and local governments from increasing their minimum wages. The current federal minimum wage is $7.25 per hour, and it’s been at this number since 2009. The most vocal proponents for increasing the minimum wage advocate for $15 per hour, while others believe this would result in fewer jobs, higher consumer prices and would be a death knell for mom-and-pop stores. The ultimate outcome remains unclear, but the hourly rate to attract workers will almost certainly increase. This is due to a shortage of workers and historic inflation. Employers can prepare for wage increases now by considering offering higher wages and consolidating positions, increasing consumer prices and taking actions that reduce overhead.
Remote Work – Speaking of which, fourth, remote work is here to stay. Workers now have an expectation of flexibility to complete their work tasks. Many have been more efficient working from home and enjoy the time and money saved not commuting, buying lunches, and staying home. Many employers have benefited from reducing overhead in the form of office space and utilities. Something is invariably lost for many professions when all workers are remotely located, but others succeed in spades. What this means is that the workforce is now more mobile than ever. It’s also an opportunity for employers to attract workers by offering remote-work options, which may be a partial substitute for higher wages. While not every occupation can be performed remotely, employers who have this option need to make sure their remote-work policies are up-to-date and understood by employees. Employers also need to be aware that differing laws may apply depending on which jurisdiction their employees work in, even if remote.
Social Responsibility – Finally, there has been a push for employers to be more socially responsible. For better or worse, no longer can businesses stand on the sidelines of social issues. We’ve all read headlines that top executives have stepped down due to past indiscretions, the now infamous “Karen” was terminated, and some businesses faced boycotts regarding various issues. To say it’s a tricky issue for employers to navigate is an understatement. Businesses now need to be more cognizant of where their materials are sourced, their environmental impact, and a litany of other issues. To grapple with these changes, employers should review and update their diversity, inclusion, and equality policies; social media policies; and off-duty conduct policies.
With 2022 just around the corner, here’s hoping that we’ll have more clarity regarding the employer-employee relationship and how we can all better succeed together. In the meantime, keep your eyes on the five big employment law issues of 2021 outlined here, because those issues are not going away any time soon.