Around the middle of the calendar year, we here at Astronology® like to reflect on the current and soon to be implemented changes from federal and state governments that impact Human Resources. Between navigating through a global pandemic and a tense presidential campaign/election season, 2021 has led to a number of legislative changes for employers’ compliance efforts. In this Astronology® we look into COVID-19’s impact on 2021 HR law and policy, the anticipated minimum wage wars, the push for diversity equity and inclusion (DEI) efforts, and potential U.S. Department of Labor (DOL) and National Labor Relations Board (NLRB) adjustments.
Return to Work
2020 began with the rampant spread of the COVID-19 virus. By March 2020 states across the nation began shelter in place orders. In response, a majority of employers quickly switched to company-wide remote work, enacted restricted workplace occupancy limits, and adopted policies for mask wearing and sanitation standards. The federal government responded by offering the Families First Coronavirus Response Act (FFCRA) and the SBA Paycheck Protection Program (PPP) to help businesses stay afloat. There was also an increase in unemployment benefits in order to help the unemployed.
In 2021 an emergency authorized vaccine was made available, and the rollout of this vaccine increased as President Joe Biden began his first term. While many lessons were learned under the year of “work from home,” organizations are eager to move forward with a new normalcy. Some areas where we have seen COVID-19 impact HR policy include the following:
- Remote Work – Flexible work has been a long-trending topic in Human Resources. Most organizations have recognized that employees can work effectively and provide satisfactory to excellent performance while at home. As a result, we are seeing employers shift their remote work policies to give more allowance for employees to work from home. Some are even becoming fully remote or developing schedules for employees to report to the worksite only one or two days of the week.
- Return to Work(site) – With vaccine rollouts continuing, employers are developing safety plans that allow employees to return to the worksite safely. Currently we are waiting for updated guidance on office operations for vaccinated/unvaccinated personnel. It is highly recommended that organizations keep an eye and ear on state and city regulations for best practice.
- Vaccine Incentives – Some employers have begun mandating or even offering incentives to encourage their staff to become vaccinated, with the hopes of increasing the safety of everyone at work. The EEOC has put forth guidance on how to properly handle these issues. While this federal guidance does allow for employers to mandate vaccination for their worksites, employers must have accommodations for employees protected under the ADA, Rehabilitation Act, Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act.
- Mental Health Awareness – Stay at home orders resulted in a lot of discussion on mental health. Organizations have recognized that more is needed to provide support – mentally and emotionally – for their workers beyond the current pandemic. Although there has not been any HR law enacted in response, many organizations have begun developing or expanding their employee well-being programs and benefits in response to this concern. Some of these responses include providing resources to promote better work/life balance, safe spaces, and mental health awareness.
Minimum Wage Wars
In a recent Astronology® article, we discussed the likelihood of the United States enacting a minimum wage of $15 per hour. The current President has mentioned he is open to discussing an increase to the current federal minimum wage, and believes it should be $15 an hour. While the Raise the Wage Act of 2021 has gained some popularity, many major businesses and some states are not waiting for a $15 per hour federal minimum wage. For instance, Walmart, Target, and Amazon have set their national minimum wage to $15.00. Costco has set theirs at $16.00. States such as California, Connecticut, Florida, Illinois, Maryland, Massachusetts, New Jersey, New York, Virginia, and the District of Columbia have approved raising their minimum wages to $15 an hour. These changes on the minimum wage front will result in pay compression discussions within organizations concerned about retaining key talent.
Diversity, Equity, and Inclusion
Another growing HR topic within the last year has been Diversity, Equity, and Inclusion (DEI). The topic hit a fever pitch with the deaths of George Floyd and Breonna Taylor, and the resulting demand of justice and acknowledgement of fair treatment for all. Organizations recognized the need to create safe spaces for employees and to address internal biases. This spurred many organizations to create DEI programs and policies. Have local or federal government enacted laws to enforce DEI efforts? In the realm of job discrimination, yes:
• Title VII of the Civil Rights Act of 1964: prohibits employment discrimination based on race, color, religion, sex, or national origin
• The Equal Pay Act of 1963: protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination
• The Age Discrimination in Employment Act of 1967: protects individuals 40 years of age or older from discrimination
• Title I of the Americans with Disabilities Act of 1990/Section 501 of the Rehabilitation Act of 1973: prohibits employment discrimination against individuals with disabilities
• The Civil Rights Act of 1991: provides monetary damages in cases of intentional employment discrimination
• The Genetic Information Nondiscrimination Act of 2008: prohibits discrimination against employees or applicants because of genetic information
Enforcement of these laws are done through the Equal Employment Opportunity Commission (EEOC).
Another topic in DEI is the pay gap / pay discrimination. Recently, in order to fight the ongoing pay gap between men & women and between white employees & people of color in the United States, the state of California signed into law SB-973. This law requires California employers a) with 100 or more employees and (b) that are required to file an annual Employer Information Report (EEO-1) under federal law to submit an annual report to the Department of Fair Employment and Housing (DFEH). The annual report must include the number of employees, employees’ pay rates, and the hours they worked:
• By race, ethnicity, and sex.
• In each of the job categories in the federal EEO-1 report.
• Whose annual earnings fall within each of the pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics Survey.
Bloomberg Law reported that New York and Rhode Island are considering similar requirements.
Employment and Labor Laws
When the transfer of Presidential responsibilities includes a switch in political party, most in US labor law anticipate a switch in National Labor Relations Board (NLRB) regulations. While the NLRB is not a partisan body that favors employers or employees, the U.S. President does appoint NLRB members. As a result, many anticipate a pro union/pro labor stance represented by any newly appointed members from President Biden, a Democrat. One of President Biden’s first acts in becoming President included firing NLRB General Counsel (GC) Peter Robb and designated Peter Sung Ohr as Acting General Counsel of the NLRB. Shortly after, the Acting General Counsel rescinded 10 General Counsel memos and reversed course on neutrality pacts with unions. President Biden has nominated Jennifer Abruzzo as his nominee for General Counsel of the NLRB. We are currently waiting for Senate confirmation.
Other changes in employment law include the U.S. Department of Labor (DOL) ending the Payroll Audit Independent Determination (PAID) program. The DOL believed the PAID program blocked workers from suing employers for identified Fair Labor Standards Act (FLSA) violations.
Are there other recent topics or legal decisions that you think will affect HR policies and practices in 2021 and beyond? Feel free to share your thoughts in the comment section below!