Welcome to the Roaring 20s! This decade has not gotten off to the strongest start and many are excited to put the first year in the past. One thing is sure, 2020 has been a very transitional year—from electing a new POTUS, to movements for equality, to an international pandemic. Here are a few of the most impactful events of 2020 and a view of what the future may bring.
Diversity, Equity, and Inclusion
DE&I has become a strategic talking point this past year and it will continue into 2021. If you’d like to be involved in what’s hot on this topic, join MRA’s timely webinar, Diversity and Inclusion Conversations at Work: Step Out or Lean In? In June, the Supreme Court ruled that the Civil Rights Act extends to LGBTQ workers, providing protection from workplace discrimination. Prior to this ruling, it was legal in more than half of U.S. states to terminate employment based on sexual preference or identity.
President Trump signed Executive Order 13950 on September 22, 2020, which addressed workplace diversity training for government contractors in an effort to reduce bias.
Expect to see a reversal of EO 13950 under the new administration. In the meantime, there is a nationwide preliminary injunction that prohibits the OFCCP and other government agencies from enforcing the EO.
President Trump attempted to put a temporary halt on immigration by issuing Proclamation 10014 on April 22, 2020. The intent was to preserve job opportunities for U.S. citizens after the start of the COVID-19 pandemic. Partial summary judgment was issued on December 1, which declared the economic argument for such a ban was not strong enough to uphold the proclamation.
Expect to see actions toward changes in temporary visa programs and a repeal of several executive orders issued to halt visas.
Wages and Pay Equity
The Department of Labor (DOL) enacted new legislation around exempt classification on January 1, 2020, meaning more Americans became eligible for overtime pay. While the FLSA job duty requirements for exempt status didn’t change, employees classified as exempt now need to earn at least $684 per week.
President-elect Biden campaigned to raise the current federal hourly minimum wage from $7.25 to $15 by 2026. Many states and municipalities have enacted minimum wage increases that exceed the current federal minimum wage.
It is also anticipated that EEO-1 Component 2 salary reporting will be reinstated. Information was collected for 2017 and 2018 with the intent to gather information on pay equity, but the EEOC has not sought approval to collect for calendar years after that. The Biden administration supports revisiting Component 2 collection for subsequent years.
In addition, expect to see more regulation of gig workers, or people working by assignment (gig) rather permanent employment.
Affordable Care Act
The SCOTUS heard arguments for repealing the entire ACA in November. It seems unlikely that the entire ACA will be repealed, but a decision is expected by June 2021.
PCORI (Patient-Centered Outcomes Research Institute) fees for self-funded plans were extended through October 2029.
Expect to see proposals to renew portions of the ACA, such as offering more public options, prohibiting preexisting condition exclusions, and repealing the law that prohibits Medicare from negotiating drug prices.
OSHA has been very active since the start of the pandemic. Wolters Kluwer recently reported that OSHA announced coronavirus-related citations totaling $3,301,932 arising out of 232 inspections. These include violations related to respirators (policy and fit tests), failure to report injury/illness/fatality, not properly recording injuries or illness on OSHA forms, and not complying with the General Duty Clause.
It is expected that the Biden administration will work to implement more uniform COVID-19 standards and reporting guidelines, and bring in new OSHA leadership. It has also been proposed to double the number of inspectors, which has dropped about 25 percent in the last decade.
This topic has been front and center since the beginning of 2020 and the FFCRA was enacted on April 1. The Act applied to employers of less than 500 people and provided for paid leave in qualifying situations. The current FFCRA provisions expired on December 31, 2020.
It is expected that COVID-19 protections will be one of the first items addressed by the Biden administration. Plans to implement a mask mandate, protect high-risk Americans, and fairly distribute vaccines are called out on the Biden transition website. MRA will continue to provide resources and information as it becomes available. In the meantime, MRA’s Hotline can help answer your questions.
On the Radar for 2021
Although there aren’t currently policies in place for the following topics, they are on the agenda to talk about once the new administration takes office. Some things to watch for are:
- Paid leave laws. Many states have adopted their own policies, but expect to see a push toward legislation to provide paid leave in all states.
- Apprenticeship program policies. Several proposals have been made in the House intended to provide more structure and opportunities with apprenticeship programs across the country.
- Union support. The Biden platform supports the FAIR Act (Forced Arbitration Injustice Repeal) and has suggested reintroducing it. There is also strong support for PRO (Protecting the Right to Organize).
The States of the States
Illinois was the busiest of the Midwest states in terms of legislative action expanding employee rights. The Illinois Human Rights Act was changed and now applies to any company with one or more employees. It protects contract workers from harassment and discrimination and expands the definition of unlawful discrimination.
Effective January 1, 2020, the Workplace Transparency Act (WTA) prohibits Illinois employers from requiring employees to sign a nondisclosure or arbitration agreement related to harassment or discrimination unless mutually agreed to. The WTA also requires Illinois employers to annually train their employees on the prevention of sexual harassment in the workplace, first by December 31, 2020, and then on an annual basis thereafter.
The Illinois Department of Human Rights (IDHR) released guidance for Illinois employers who are required to report the total number of adverse judgments or rulings of sexual harassment or unlawful discrimination against the employer. If an employer has had no adverse judgments or administrative rulings, it is not required to report this information to the IDHR. The deadline will be July 1, 2021, for required disclosures from the 2020 calendar year.
With the enacting of the Artificial Intelligence Video Interview Act, Illinois became the first state to regulate the increasing use of algorithms and other forms of artificial intelligence to analyze nonverbal communication. This may become more popular as companies continue to conduct business remotely.
Effective January 1, 2020, recreational marijuana was considered a “lawful product” (like alcohol and tobacco) in Illinois and subject to antidiscrimination protections. The new law amends the Illinois Right to Privacy in the Workplace Act which prohibits an employer from refusing to hire, terminate, or take any adverse action because an individual uses lawful products away from the workplace on nonworking time. Employers can continue to conduct drug testing for marijuana for pre-employment, post-accident, random, and reasonable suspicion testing.
Governor Pritzker signed legislation to gradually increase the minimum wage to reach $15 by January 2025. The current state rate is $11 per hour.
Minneapolis implemented the Freelance Worker Protection Ordinance as of January 1, 2021. It requires written contracts with independent contractors.
The cities of St. Paul and Minneapolis increased their minimum wage in 2020 and will do so again in 2021. In 2021, there will be an increase in the state’s minimum wage for both small and large employers.
Duluth, MN, passed its own paid sick leave ordinance that closely mirrored the St. Paul and Minneapolis ordinances. The Minnesota Supreme Court ruled in 2020 that the accrual of paid leave covered by these ordinances applies to employees who perform work within the geographic boundaries of the city.
The law covering the preference of veterans in public employment was amended with the addition of new language regarding applicant appeal rights.
State law was amended to disqualify a worker from receiving unemployment compensation should the employee be terminated due to ingesting marijuana in the workplace, working while under the influence of marijuana, or testing positive for any other controlled substance, for which the individual did not have a current prescription or which the individual was otherwise using unlawfully.
Senate Bill 2296 will be enacted on July 1, 2021, which establishes the circumstances under which certain independent contractors are not considered employees.
While the State of Iowa has no statewide ban-the-box restrictions on criminal background checks, the City of Waterloo, IA, recently followed the growing trend by enacting a new ordinance, effective July 1, 2020. The ordinance prohibits Waterloo employers from including a criminal record inquiry on any job application.
Beginning November 2, 2020, Wisconsin employers are required to provide employees with a notice of the availability of unemployment insurance at the time of separation. Notification can be provided through traditional methods (in person or by mail) or electronically (email or text message) and should be provided regardless of the reason for separation (cause or no cause). In addition, posters must be displayed with information on applying for unemployment benefits.
Please note that this is not an all-inclusive list, but addresses the most noteworthy happenings. Continue to follow MRA’s e-newsletter, Inside HR, for more information on upcoming legal issues and COVID-19 updates.
Now is a great time to review employer posting obligations for federal and state requirements to ensure you have the most up-to-date information available for employees.
As a reminder, MRA has a partnership with GovDocs, a reputable and cost-effective provider of state and federal consolidated employment law posters, so members can receive a 10 percent discount off the regular price of employment law posters and any other products.