Employer Labor & Employment Issues In 2022
There’s no doubt that companies have faced incredible challenges over the past 18 months. COVID-19. A shift to remote working. A new president who’s vowed to be “the most pro-Union president you’ve ever seen.” The result? “If you’re leading a company right now, it’s time for a serious legal check-up in the areas of human resources and compliance,” urges William Greenbaum, a partner and employment law expert at Santomassimo Davis LLP Outside General Counsel™ Solutions, a New Jersey-based firm with offices in New Jersey, Philadelphia, and New York. “Chances are your employee handbook is about to become outdated.”
With that in mind, here are four developments employers should keep on their radar as we head into 2022:
1. Mandatory COVID-19 vaccinations and testing.
Even though the Supreme Court recently blocked the federal government from requiring vaccine and testing mandates within large workplaces, there is nothing that prohibits businesses from developing such mandates on their own—and many are doing so. The problem? “You’ve got to tread lightly” when employees indicate they don’t want to be vaccinated because of religious reasons or a disability. Ditto for employees who are hesitant to receive a vaccine because they’re pregnant—a situation some employers aren’t sure how to handle.
Moreover, companies should have a plan for how to deal with employees who refuse to be vaccinated simply because they associate with someone who refuses to be vaccinated for religious or disability reasons. “We’re seeing more people in this category come forward and claim protection for themselves,” Greenbaum says.
In addition, he warns that companies that require employees who aren’t vaccinated to undergo regular, mandatory COVID testing have to ensure that the requirements aren’t too cumbersome. “Vaccination requirements right now are a complicated, confusing web,” he says. “Your best bet is to be accommodating and flexible with people who won’t comply.” Greenbaum and the OGC Solutions team can help companies draft—and revise—vaccination policies as the situation evolves.
2. Misclassifying employees as “exempt” from receiving overtime pay.
This common violation by employers has gotten worse over the past several months, Greenbaum says. “I’ve seen a lot of employers bring people on during the pandemic as independent contractors rather than employees,” he says. That can be risky if they misclassify an employee as exempt and fail to pay them overtime. Employers should remember that new hires, even remote ones, need to be properly classified to avoid legal risk. “Just because someone works from home does not automatically mean they’re an independent contractor,” warns Greenbaum. He and his cohorts at OGC Solutions walk clients through the Department of Labor’s “economic reality test,” along with IRS rules, to determine if someone can be classified—and paid—as a true independent contractor.
3. New NLRB Standards.
Along with a new presidential administration comes a reshuffle of priorities by the National Labor Relations Board (NLRB), the nation’s primary enforcer of labor law.
In the next several months, Greenbaum says, employers can expect the Board to do away with a series of business-friendly Trump-era moves and expand legal protections for workers.
The coming year will bring decisions on worker involvement in social movements, union access to workplaces and the ability of companies to impose strict workplace rules, like codes of conduct, restricting employees’ social media activities, and even rules regarding whether employees can talk to the media.
“Some of the workplace policies that were inserted into employee handbooks during the Trump era are now going to have to be amended,” Greenbaum warns. As things progress, “Your best bet is to sit with your legal expert and go over your workplace policies with a fine-tooth comb.”
4. Employee non-compete contracts.
Even before the COVID pandemic hit, the legal pendulum had been swinging against the enforcement of employee non-compete contracts, Greenbaum says. Now, in an uncertain economy, he predicts that more legislators and courts—at both state and local levels—will take a hard-nosed position against non-compete agreements in general. Any such contracts that exist in the future, he says, “are likely to be very limited in scope.” For example, companies won’t be able to enforce non-competes for a long period of time or apply them to lower-paid workers, he predicts. “They’re going to be limited so that employees are more easily allowed to move from job to job,” he says. Your best bet? Sit down with an attorney and take stock of your company’s employment contracts.
“There’s a whole lot to keep track of on the employment front right now,” Greenbaum adds. “Now is the time for increased vigilance.”