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Countdown to Compliance: Employment Law Resolutions for 2019



As the Times Square ball drops to welcome in each year, countless human resources professionals reflect on their successes and challenges over the past year while looking forward to opportunities to reduce employment risk in the coming one. To assist in this time-honored tradition, we provide ten compliance thoughts to ponder as the year closes and to consider prioritizing for 2019:

10. Pay minimum wage. It's obvious, but can be forgotten—pay minimum wage and be ready before the ball drops. Washington's minimum wage, effective January 1, 2019, will be $12.00 an hour, and Seattle employers should ensure that they set minimum wage based on number of employees, described by the Office of Labor Standards here. And Tacoma and SeaTac have their own minimum wages: $12.35 per hour in Tacoma, and $16.09 per hour for SeaTac (transportation and hospitality industries). Oregon employers must pay a minimum of $11.25 an hour or the adjusted amounts for nonurban counties ($1 lower) or Portland metro counties ($1.25 higher). The description of the Bureau of Labor and Industries (BOLI) is here.

9. Prevent harassment. As the reinvigoration of the #MeToo movement has shown, employers should take extra care to prevent harassment in the workplace and promptly address assertions of harassment. The EEOC's Select Task Force on the Study of Harassment in the Workplace provides food for thought for employers working toward harassment-free workplaces and has substantial information that can be used to support efforts to prioritize harassment-prevention efforts.

8. Hesitate, but maybe arbitrate. Employers should evaluate use of arbitration agreements. In 2018, the Supreme Court continued to endorse employers' ability to utilize arbitration agreements to resolve employment disputes, ruling in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), that employees can waive their right to bring class actions and collective actions. While arbitration agreements have pros and cons, every employer should consider whether to utilize them.

7. Attend to the sick-leave laws. Oregon and Washington (and Seattle) paid sick-time laws all have trip wires and policy choices that employers should consider. Many employers still need to grapple with ensuring that all eligible employees (including exempt employees in Seattle) are subject to sick-time policies, and need to ensure that paid sick time is provided for the many qualifying events, which are not just when an employee is sick but absences under a variety of state laws, including absences to deal with certain crimes. And Washington employers, are you ready to start collecting the employee payroll taxes beginning January 1, 2019, for the new Paid Family Medical Leave program?

6. Classify contractors. Federal and state tax and other offices are paying heightened attention to whether entities employing independent contractors are really ensuring that the arrangements meet the various tests showing that the contractors are not subject to the entities' control. So are class-action counsel who notice the uptick in entity use of employees disguised as contractors. Employers are wise to take stock and make sure that employer classifications are correct, to avoid unwanted and expensive challenges in 2019.

5. Train managers on wage-and-hour compliance. Employers spend a lot of time training managers on discrimination and harassment, but many don't emphasize managers' wage-and- hour oversight obligations. Individuals can be subject to liability for wage-and-hour violations, and human resources professionals should be sure that wage-and-hour knowledge extends beyond the HR office.

4. Protect your secrets. If your entity possesses confidential information, make sure that the entity has considered the methods and means to protect it. First, make sure that anything the entity considers confidential is actually treated that way; otherwise, it risks not being considered confidential. Second, make sure that policies and confidentiality agreements with employees adequately identify confidential information and cover everything that the entity might consider confidential.

3. Update hiring processes. Employers should make sure that hiring processes are updated on an ongoing basis. In the recent past, employers have had to be sure to comply with "Ban-the-Box" statutes in Oregon, Portland, Washington, Seattle, and other local jurisdictions. Those laws restrict the type of background information that employers can seek and when permitted inquiries can be made. Similarly, the Oregon Equal Pay Act specifically prohibits asking an employee about prior compensation before making an offer of employment.

2. Labor over policies and embrace favorable law change concerning handbook policies. All private employers are subject to the National Labor Relations Act (NLRA) and public employers in Oregon and Washington to similar state laws, regardless of whether they have a union. In June, in a Guidance on Handbook Rules, General Counsel of the National Labor Relations Board described more employer-friendly standards that lessen restrictions on workplace rules concerning employee conduct (including allowing civility rules), use of employer logos, and other similar rules, creating an opportunity to reinstitute desired rules that may have been eliminated under prior NLRA precedent.

1. Pay equally and comply with new state equal-pay laws. In Oregon, BOLI issued the final rules on pay equity on November 19, implementing the proposed rules described in BOLI Issues Proposed Rules on Oregon's Equal Pay Act. Employers must post BOLI's required poster, along with other posters. And Washington employers must address Washington's new Equal Pay Act, described here in 2018 Washington Gender Equal Pay Act Amendments: Same Pay for "Similar Jobs."

Each of these ten compliance areas has had some prominence in 2018, and there is no reason to think these topics will fade in 2019—they'll continue to be hot. Prioritizing and planning around these areas can be a satisfying and rewarding part of any human resources professional's or employment lawyer's new year!
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