New 2019 Employment Laws Bring Fresh Challenges for HR

The calendar has flipped to a new year, and with the beginning of the year over 80 new employment laws came into effect on January 1, 2019. These changes signal further challenges for HR employees and employment law training providers alike, as we see no slowing of increased regulation in the employment law arena.

Harassment Law Changes

Among the most sweeping changes, several states enacted changes to their harassment laws. Specifically, New York, Delaware, California, and Washington have all made changes to the laws governing workplace harassment that have a significant impact on how employers need to handle these claims (and educate their employees about these types of incidents).

For example, in New York, Delaware and California the vast majority of employees must receive training on sexual harassment in the workplace. This new requirement offers significant opportunity for companies to train their employees on cultural change and also affords e-learning providers a batch of new organizations to work with on filling their needs.

Sexual harassment training reform is certainly not the only area that employers and industry members need to be aware of. Indeed, California has enacted additional legislation:

  • Employers are prohibited from generally asking applicants about their criminal histories (except in specific circumstances)
  • The state Fair Employment Agency may now investigate claims of harassment between people who merely had a “working relationship” (not just co-workers)
  • Additional laws changing evidentiary standards in harassment cases.

Minimum Wage Changes

Many states (bordering on most) have made changes to their minimum wage structure, and New York has changed the threshold for when an employee can be considered exempt from overtime requirements. Indeed, the dollar figure required before classifying a New York employee as exempt (in addition to the requirement that other standards must be met) will go from $23,660 per year up to between $43,264 and $58,500.

This change will significantly impact the number of employees who are eligible for overtime compensation in New York. All employers who conduct wage and hour training should be cognizant of this fact, and should take notice that misclassification can have substantial financial penalties (as well as statutory attorney fees for plaintiffs who prevail in a wage and hour lawsuit).

 

Syntrio will continue to stay on top of changes in the law and vows to keep you informed of changes to the law that may impact your business and training strategies throughout the year.

2018: The Year in Bribery

As 2018 passes on, one of the extraordinary aspects of the past year was the seeming normalization of bribery and corruption in the media. Yet despite the year’s headlines dominated by stories regarding sexual harassment, cyber security and data privacy, bribery was nonetheless the clear winner in news stories.

One-Third of all News Headlines Involve Bribery & Corruption

An analysis of one news monitoring service found bribery and corruption accounting for roughly one-third of all headlines. The most prevalent area of business involved governments, including those of Brazil, Peru, China, Argentina, Hong Kong, Mongolia, Atlanta and New York State.

It also included these industries and related companies (a partial list):

  • Auto: Fiat Chrysler
  • Defense: Airbus, Chemring
  • Energy: Eni Energy
  • Financial: Societe Generale, Credit Suisse
  • Food: Jim Beam
  • Healthcare: Fresenius
  • Industrial: Samsung
  • Mining: Kinross Gold, Alabama Coal
  • Oil and Gas: Shell, Eni
  • Pharma: GlaxoSmithKline, Sanofi
  • Retail: Walmart
  • Sports: FIFA, San Diego State University, University of Kansas, North Carolina State, Adidas

A review of preliminary data, through Violation Tracker, on US regulatory enforcement actions begun or advanced in 2018 found the following:

  • Foreign Corrupt Practices Act penalties (before reductions) came to almost $500 million for just eleven companies (vs. $1.3 billion in 2017 involving fourteen companies).
  • Another $87 million in fines were identified in bribery/kickback schemes under False Claims Act violations.
  • An indeterminate more likely are part of fraud enforcement actions; bribery often is coupled with fraud, though not always called out in enforcement headlines.

Is this the new norm?

What’s surprising by this information is how normal bribery headlines, government charges and fines have become. While Trace International released a study in March that indicated US enforcement actions had slightly dipped from the prior year, across the board global enforcement actions continued to run at a high rate.

So, while bribery and corruption stories may lose some of their luster in place of hot topics such as harassment, cybersecurity and data privacy, these issues still command a lion’s share of regulators’ attention and continue to bring in millions and millions of dollars in fines from companies that get it wrong.

Given this information, business leaders and compliance officers are reminded to maintain a watchful eye over at-risk business activities where bribery may be prevalent within an industry. Further, this is a good time to shore up practices at preventing, detecting, mitigating and quickly responding to suspected bribery. Specifically, recent years have seen a rise in enforcement actions aimed at bribery involving third parties, such as business partners. The “conscious disregard,” “willful blindness,” and “deliberate ignorance” defenses are being proven as poor risk management practices.

2018 In Review & the Future of Harassment Training Laws in 2019

A timeline of 2018 harassment incidents read like a “who’s who” of American celebrities and executives. What began in mid-2017 as a social media movement to point out incidents of harassment in the workplace became an everyday occurrence this past year. As #MeToo enters its third calendar year, let’s look at developments in the area of harassment from 2018 and offer insights as to what might be coming in 2019.

2018 In Review

New York Harassment Laws

In April 2018, New York Governor Andrew Cuomo signed into law sweeping legislation that requires nearly all New York employees to receive comprehensive training aimed at reducing and responding to workplace harassment. At the same time, New York City signed parallel legislation requiring even more extensive training. Both laws are now in effect, and New York employers have until October 9, 2019 to complete training to comply with the State requirement, which is the stricter of the two laws.

Delaware Sexual Harassment Law

New York’s sweeping legislation may have moved the ball forward, but momentum increased in August when Delaware enacted a similar rule. Delaware’s law requires employers with 50 or more employees to train their employees on sexual harassment by January 1, 2020. This means that 2019 will be an extremely busy year on the east coast, with organizations scrambling to determine how to train their employees on these important topics.

California Sexual Harassment Law Modification

Just when it appeared New York’s and Delaware’s new training laws made for a big year, the U.S.’s largest state upgraded its existing law on September 30, 2018. California now requires all employees, not just managers, to receive training on sexual harassment, abusive conduct, and gender identity issues. Also, California increased the number of applicable employers by reducing the employee threshold from 50 down to 5, making nearly every employer in the state responsible for providing this training.

What to Expect in 2019

Executive Training

Each of the new laws increases an employer’s responsibility to train its employees. Yet given the high number of incidents that continue to be reported, these changes present opportunity. Since these rules also apply to an organization’s senior leaders, we look forward to many leaders embracing the concept of training rather than seeing it as principally intended for lower-level managers and line employees. After all, leadership’s commitment to the perspective that incidents of harassment will not be tolerated is critical to the success of any program to reduce this illegal misconduct.

More Legislation

In 2019, we anticipate that more states will follow New York, Delaware, California, Maine and Connecticut’s leads in requiring harassment training. Already, proposed draft legislation exists in Massachusetts, Pennsylvania and Minnesota. The number of state democratic election victories in November suggest that similar legislation in Illinois and other states is likely to follow.

 

Organizations should strongly consider proactively providing sexual harassment training to employees whether their state requires it or not. In addition to fostering a culture of tolerance for diversity and inclusion and intolerance of harassment and hatred, training your employees on what to do in the event they are victims of harassment or bystanders to misconduct can help prevent incidents that can prove quite costly, both to productivity and in actual dollars.

CBS Takes Dramatic Steps to Curb Reputational Damage Following Harassment Allegations

In an effort to build a “stronger CBS,” the network television giant has taken drastic #MeToo related steps to identify and reduce incidents of sexual harassment in its work environment, according to a December 14 Business Insider article. Much ink has been spilled about the sexual misconduct, allegations against former CBS CEO Leslie Moonves, and the “culture of workplace harassment” that was allowed to persist under his watch prior to his termination “for cause” some time ago. In response to conversations with potential plaintiffs’ lawyers and growing resentment against the network among employees and viewers, CBS has taken significant steps toward improving its workplace culture.

According to the Business Insider article, CBS has agreed to survey its employees for feedback on company activities. Employees received an anonymous survey in late November and were encouraged to provide open and honest feedback. To the company’s credit, CBS encouraged all employees to help build a stronger culture that does not include sexual misconduct.

Additionally, CBS emailed staff on December 14 that it plans to implement new programs to ensure communication is open, refresh training programs in line with employees’ interests and generally make life better for all CBS employees. This comes in reaction to not just Moonves’ behavior, but also as a result of three lawsuits filed against CBS for “blatant and repeated” sexual harassment by former CBS anchor Charlie Rose.

When viewed in totality, it is clear that the culture at CBS needs significant change. Although the company was correct to take the steps it is taking, it is sad to see yet another in a long line of large corporations only take the needed steps as a reaction to a high-profile incident. For all the good the #MeToo movement has done in raising awareness of employees’ rights to speak out, companies still do not understand that they need to be proactive in their approaches to changing their cultures before a lawsuit or bad publicity forces them to do so.

The difference between proactively changing what is already seen as a positive culture and doing so on a reactionary basis to news reports and lawsuits is the difference between doing great things for your employees and attempting to create a culture that is “not bad.” Companies need to be better than “not bad”, they need to strive for cultures where employees can be comfortable and thrive in their work environment, free from the fear of harassment, discrimination and retaliation. Syntrio works every day to make sure that can happen in our client organizations.

‘Oliver the Ornament’: A Christmas Tale With Workplace Parallels

In our house we practice the “Four Gifts of Christmas Rule” - each person receives one gift they want, one gift they need, one gift they wear and one gift they read.

Unfortunately, I don’t have any suggestions for the first three gifts on the list. But I do have a great recommendation for the gift you read, and it also ties in nicely with the difficult task we have as parents trying to explain to our children what we do at work every day.

Earlier today, the US President’s wife, First Lady Melania Trump visited Children’s National Medical Center in Washington, DC for the time-honored tradition of reading to the patients. This year’s book was Todd M. Zimmerman’s Oliver the Ornament, a heartwarming story about a group of ornaments preparing for the Christmas season.

Now, I’m sure you’re wondering how a children’s Christmas book can draw parallels to the adult workplace but, as the story unfolds, it is easy to see the juxtaposition of what employees in workplaces experience every day:

  • Oliver is simply one of a larger group of ornaments.
    • One employee within a larger organization.
  • Oliver has always been a prized ornament; however, this year he has a broken arm, so he is not sure if he will get put up on the tree.
    • Will diversity or discrimination stop the employee from getting the promotion or receiving recognition?
  • Edsel, a fire truck ornament, bullies Oliver and encourages other ornaments to do the same. 
    • A clear example of workplace bullying and discrimination.
  • Edsel even plots to have Oliver hidden away so he won’t be put on the Christmas tree.
    • An obvious instance of office politics.

I’m not going to spoil the ending for you, but rest assured that I would not have suggested the story if it wasn’t a happy one.

Oliver the Ornament a great springboard for discussions with your children about bullying. You can use it to explain to them that when you go to work every day, you try to serve as the advocate for the ‘Olivers’ where you work to ensure that every employee has a safe place to turn when confronted with an ‘Edsel’ at your office.

Also, it might not hurt to keep a copy of Oliver the Ornament handy on your desk for a little light reading for your team should an ‘Edsel’ rears his or her head.

For more information about Oliver the Ornament, visit www.olivertheornament.com.