Inside the rapidly changing world of compliance

The U.S. Department of Labor split its final rule updating overtime regulations under the Fair Labor Standards Act into two updates in a move that surprised employer-side attorneys, who told HR Dive the decision could create some tough compliance questions.

Russell Bruch, partner at Morgan Lewis, said the final rule is “unprecedented” in that it implements two separate increases to the FLSA’s minimum annual salary threshold from the present $35,568 set by the Trump administration in 2019.

The first update will take effect on July 1, boosting the threshold to $43,888 per year. Then, six months later, another increase on Jan. 1, 2025, will put that figure at $58,656. A separate mechanism for automatic updates every three years kicks in beginning July 1, 2027.

A final draft of the rule has yet to appear in the Federal Register, but employers are already confronted with the decision of how they should implement payroll changes, Bruch said. If an employee who is currently exempt from overtime eligibility falls beneath the salary threshold as a result of either update, an employer could either convert the employee to nonexempt status and pay overtime or increase the employee’s salary to put them over the threshold.

But that calculus, already a challenge for employers to navigate both financially and culturally, is complicated by the premise of two upcoming increases. Affected employers would need to decide whether to make such changes once in July and once again in January, Bruch said, or to adopt changes in line with the January threshold from the outset. Additional steps include communicating changes to employees, training managers on any updated timekeeping policies and calculating overtime premiums.

Given those changes, “it might make sense for some employers to just do it all at once,” Bruch said, and comply with the projected 2025 threshold rather than implement two separate changes over a six-month span. “Each employer is going to have to evaluate that.”

Complying with the new rule for a period of just six months before another change could prove “very difficult to do,” said Jim Paretti, shareholder at Littler Mendelson. He similarly stated that compliance with the 2025 threshold from the outset could be preferable for employers. “The idea [of doing] this in phases, I don’t think that’s going to be viable for many employers.”

Effect of court challenges

DOL’s motivation for splitting the threshold update into two may in part have been to create a preemptive defense against probable legal challenges, said Brett Coburn, partner at Alston & Bird.

The department specified that its July increase is based on the same methodology outlined for determining future overtime threshold increases set forth in the 2019 rule, but that the 2025 increase uses a slightly different methodology. If a federal court were to strike down the 2025 increase on the grounds that the department’s new methodology is flawed, other parts of the rule could still survive.

“My suspicion is that the folks at DOL wanted to make sure that ‘we have something that we think might stick,’” Coburn said, but he added that this is uncertain.

Both Coburn and Paretti said that the department could face a challenge similar to that which it faced under the Obama administration. In 2016, a federal judge enjoined an overtime rule that would have pushed the threshold to $47,476 per year.

“I think there’s a much more significant chance that the rule does survive at least on the lower threshold,” Coburn said. “It moves from a binary guessing game of ‘Is it going to survive?’ to, ‘Is it going to survive in whole, in part or not at all?’”

Regardless of how employers approach the potential for legal challenges, the current moment presents an opportunity for employers to revisit their exemptions more broadly, Coburn added. The final rule does not make changes to the “duties” test for overtime eligibility under the FLSA, but “now is as good a time as any to make sure we’re properly applying the duties test,” he said.

The U.S. Department of Labor’s independent contractor final rule eluded — temporarily, at least — lawsuits seeking to block it ahead of its effective date, giving rise to several compliance questions for employers, attorneys told HR Dive.

DOL’s rule introduces a “totality-of-the-circumstances” framework for analyzing independent contractor relationships under the Fair Labor Standards Act. In doing so, the agency said it will consider six nonexhaustive factors, including the nature and degree of control over work performed, the extent to which the work is an integral part of the employer’s business, and the permanence of the arrangement.

Years of legal battles preceded the final rule’s publication. Initially, the Biden administration sought in 2021 to rescind a prior independent contractor final rule issued by the Trump administration, but a federal district court judge ruled against DOL and put the Trump-era rule back into effect.

On appeal, the 5th U.S. Circuit Court of Appeals issued a stay of the judge’s decision. Then, last month, the 5th Circuit vacated the lower court’s opinion and lifted the stay following publication of the latest final rule, teeing up future litigation. 

Separately, independent contractors sued DOL in Georgia and Louisiana seeking a preliminary injunction of the new final rule, with the latter case filed just prior to the weekend before the rule’s March 11 effective date.

However, none of these efforts appeared to block the rule from taking effect.

Enforcement: ‘It gives them something new to point to’

Employers have nonetheless had several weeks to prepare for the independent contractor rule. Lucas Asper, shareholder at Ogletree Deakins, told HR Dive that among his clients, those that have been most interested in discussing the final rule have been preparing for some time now.

“The ones most heavily dependent on [independent contractors], or at least [those whose] business model already uses that work structure, those folks have been laser focused on this from the time the proposal first came out,” Asper said. “We’ve all known that this was coming eventually.”

DOL’s six-factor test may be a shift for employers, but Asper said that the reality is that the test is very similar to what employers have dealt with in years past, including the Trump-era final rule. That rule emphasized two “core” factors in its analysis of independent contractor relationships, whereas the new rule “says we’re going to look at everything,” he continued.

For employers, the rule’s biggest effect may be that it signals wage-and-hour investigators’ focus on worker misclassification, Asper said; “It gives them something new to point to.”

Time will tell on court challenges

Though the lawsuits challenging DOL’s final rule did not hold it up in the courts, that does not preclude an injunction from being issued at some future point, Christopher Parlo, partner at Morgan Lewis, told HR Dive. In the meantime, there are a few things employers can do to ensure their independent contractor arrangements withstand potential scrutiny.

For example, Parlo said employers can craft question and answer documents to proactively address inquiries from independent contractors who perform work for their organizations, which may be a necessity given the increased publicity given to the final rule this week. “The management at the company should be aware of what those questions would be,” Parlo said.

Additionally, employers should look over independent contractor documentation to ensure that the associated provisions do not suggest employee status, he continued. For instance, employers should avoid terms that imply the services that a contractor performs constitute an “exclusive” relationship.

Employers also should ensure that they are not paying for independent contractors’ expenses, Parlo said, and they could consider adding arbitration agreements with class-action waivers to their independent contractor agreements. The latter might allow employers to face potential challenges on an individual basis instead of a class-action basis, he noted.

DOL’s final rule includes control over performance of work as a factor in the independent contractor analysis, so employers may want to consider adding language to contracts to make clear that they are not only not exerting such control, but also that they have affirmatively given up that ability entirely. “That’s what’s supposed to be happening, but writing it out in a contract is important,” Parlo said.

ERISA plan and employee benefits implications

Though the final rule is a FLSA regulation, its effects may be felt across other aspects of employment law. One such area is employee benefit plans governed by the Employee Retirement Income Security Act, said Sarah Sise, partner at Quarles & Brady.

That is because prior federal court rulings have held that eligibility to participate in an ERISA plan is based on how employers classify potential participants, rather than on a common law standard, Sise said.

Should an employer reclassify independent contractors as employees in order to comply with the final rule, she continued, that could also make such workers eligible for ERISA plan coverage. If the employer fails to do so, it could face penalties.

“It’s just understanding the classifications so that a year from now, we don’t have corrections to make because we improperly excluded someone [from an ERISA plan],” Sise said. “That’s going to be a big gotcha.”

Parlo agreed ERISA-related coverage is a potential concern for employers and said that employers may want to consider reinforcing language in their agreements stating that independent contractors are not entitled to such coverage, or to other benefits such as vacation time, leave time, bonuses or attendance at company events.

“If you use language that says you are not eligible to participate in our [ERISA] plans even if a court or agency later determines that you should have been an employee, that’s enforceable,” Parlo said. “A court or agency cannot force you to retroactively put them into your plans. It’s not a fix for everything, but it is important.”

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If you manage a retailer or a restaurant in Seattle, San Francisco, New York, Chicago, or Los Angeles, you might have heard of Fair Workweek. This new legislation is built to protect the work-life balance and financial stability of employees through the use of fair scheduling practices.

So if you haven’t already built labor compliance into your staff management process, now is the time to get going. To help you, we reached out to Littler Mendelson, a U.S.-based law firm that handles labor and employment litigation. Read on for Littler’s top four tips for labor compliance.

Labor compliance tip #1 – Make historical data easily accessible

If an auditor asked you for full, accurate records of your timesheets, would your head be spinning?

Protect you (and your staff) by making all your records easily accessible. Weekly and daily business data, like your scheduling, should be available for your entire staff. Many regulations also require employers to notify staff in advance of their schedules. And employers could be penalized with fines for schedule changes made within a designated notice period.

Labor compliance tip #2 – Create written work policies

Although some cities and states already have regulations in place, make sure you write down the policies and share them with your team. Then, inform all employees and managers of any new changes.

Develop a system to communicate schedules, schedule changes, and available shifts to employees. Failure to give proper notice or making a change during the notice period could result in the employer paying compensation or a flat fee depending on their jurisdiction.

Bonus: add a summary of covered employees’ rights in job postings, offer letters, and other recruitment and orientation materials.

Labor compliance tip #3 – Train your managers on best practices

Most fair scheduling laws give employees a right to have input regarding their work schedules. Train your human resources, payroll, and managerial staff on fair/predictive scheduling and family-friendly workplace requirements. Create short certification programs and require all key stakeholders to be trained on the law and regulations.

Labor compliance tip #4 – Invest in tech that values labor compliance

Review payroll and timekeeping systems to ensure that they are capable of recognizing, processing, and accurately applying all applicable scheduling and predictability pay scenarios. If they are missing core functionality that will help make you compliant, look into newer programs.

It pays to simplify compliance with the right tools

The industries most affected by predictive scheduling laws are the fast food, service, hospitality, and retail sectors where giving employees fluctuating work schedules is common. 

So how can you simplify compliance and help protect your business? Get in touch with our team to learn how compliance management software can be a game changer for your business.

The Supreme Court of the United States issued a unanimous decision in Groff v. DeJoy, significantly limiting the ability of an employer to argue that a requested religious accommodation would cause it an undue hardship.

In short, the Supreme Court held that the correct standard for an employer to establish an undue hardship is not “more than a de minimis cost,” but rather whether the burden of the requested accommodation “is substantial in the overall context of an employer’s business.”

The 5th Circuit is the first federal circuit court to apply Groff, and its analysis is instructive to employers.

In Hebrew v. Texas Department of Criminal Justice, plaintiff Elimelech Shmi Hebrew, who observed the Hebrew Nation Religion, had requested that the Texas Department of Criminal Justice accommodate his religious beliefs by exempting him from the TDCJ’s prohibition on beards and long hair.

For the reasons discussed below, the employer denied the plaintiff’s accommodation request, applying the now-erstwhile “more than a de minimis cost” standard. While the case was on appeal, the Supreme Court clarified the undue hardship standard as previously noted. The 5th Circuit evaluated the appeal applying the Groff standard.

The 5th Circuit thoroughly examined and rejected all three of the arguments TDCJ put forward for why allowing Hebrew to keep his long hair and beard would place a substantial strain on its business:

• First, TDCJ said Hebrew could hide contraband in his hair or beard. The court rejected this argument because, it reasoned, TDCJ already performed hair and beard searches of all officers, and spending a few extra minutes on a contraband search for one officer would not be particularly burdensome, particularly in the context of TDCJ’s relatively large overall operating budget.
• Second, TDCJ took the position that a beard could make it harder for Hebrew to wear a gas mask when necessary for him to use chemical agents in a prison. The court rejected this argument, too, because it was inconsistent with TDCJ’s separate policy allowing beards for employees with medical conditions; there was no evidence that wearing a gas mask would be any harder for Hebrew than for those with beards TDCJ allowed because of medical conditions.
• Third, TDCJ argued that inmates could use Hebrew’s hair to overpower him in an attack. The court found that the existence of a policy allowing women to have long hair, but not men, undermined this argument; if TDCJ could make a purely secular exception to its policy regarding long hair, then it would not be burdensome to make the same exception for Hebrew.

The Court’s analysis makes clear that comparators are relevant to the reasonable accommodation/undue hardship analysis by employers. If an employer allows for secular or medical reasons what an employee requests for religious reasons, think hard before you say “no.”

How an employer has handled the same or similar religious accommodation requests also is germane to the reasonable accommodation/undue hardship analysis. However, employers need to be careful not to have per se rules on what is or not is an undue hardship.

In Groff, the Supreme Court made clear that, in determining what is a reasonable accommodation/undue hardship, an employer must make an individualized assessment in each case. More specifically, the Court stated:

What matters more than a favored synonym for “undue hardship” (which is the actual text) is that courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.

This aspect of Groff’s analysis underscores that an employer cannot mechanically rely on the same ground(s) it may have had for denying past accommodation requests, and that it must look specifically at present circumstances. This requires a flexible approach that considers how the requested accommodation would actually affect business operations, including how much the accommodation really would cost the employer in the context of its overall financial wherewithal.

The 5th Circuit spelled out what the Groff court suggested relative to cost:

“[Groff’s] reference to the ‘size and operating cost’ of the employer. . . suggests that, all other things being equal, larger businesses and institutions must bear a heavier burden in proving undue hardship.”

However, even smaller employers likely will have a hard time establishing an undue hardship based on cost alone.

Even before Groff, the EEOC has made clear that cost is measured not only by “the size and operating costs of the employer,” but also by “the number of individuals who will in fact need a particular accommodation.”

An accommodation that appears likely to be a one-off, therefore, may not cause enough of a hardship to the employer to meet the Groff standard.

Let’s assume, however, that the accommodation requested in a given case would create an undue hardship. That does not end the inquiry.

Echoing Groff, the 5th Circuit stated that an employer still must consider, on its own initiative, potential alternative accommodations. Perhaps the most common alternative employers fail to consider is transferring the employee to an alternative position.

The EEOC’s guidance on this issue is clear and instructive:

“When an employee’s religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict with the employee’s religion. Whether or not such accommodations pose an undue hardship will depend on factors such as the nature or importance of the duty at issue, the nature of the employer’s business, the availability of others to perform the function, the availability of other positions, and the applicability of a collective bargaining agreement or seniority system.”

An employer therefore cannot end its process upon concluding that the specific requested accommodation would cause an undue hardship. Instead, it must independently identify other measures that could accommodate the employee and then evaluate whether those measures meet the standard for an undue hardship as articulated by Groff.

Groff has changed the religious-accommodation landscape in a significant way, and employers may need to institute more rigorous processes than they may now have in place for handling such accommodation requests. Getting ahead of these issues requires at least the following:

• A mechanism for employees to request religious accommodations that is spelled out explicitly in the employee handbook or other prominent policy document. All too often reasonable accommodation policies address only physical or mental disabilities.
• Training for managers to report any religious accommodation request to human resources, not to resolve the request on their own or ignore the request altogether.
• An individualized assessment of the circumstances, including any potential alternatives to the requested accommodation. 
• A check for consistency with how they made decisions on substantially similar requests in the past and, if there is any apparent inconsistency, whether the past cases are distinguishable.
• The decision documented in a manner that makes clear what factors the employer considered, and that no impermissible factors played a role. The documentation should be framed carefully to avoid the appearance that the employer considered any impermissible factors, especially religious animosity or bias on the part of co-workers.

Courts applying Groff are likely to scrutinize the decision-making process for missteps to a degree that they did not before. Well-crafted policies and practices, developed with the assistance of counsel, can increase the likelihood of compliance and may enable an employer to avoid significant liability.

The U.S. Equal Employment Opportunity Commission has announced its final rule implementing the Pregnant Workers Fairness Act, clarifying that abortion is included under “pregnancy, childbirth or related medical conditions” that are protected under the PWFA.

EEOC said this interpretation of the law’s text is “consistent with the Commission’s and courts’ longstanding interpretation of the same phrase in Title VII.” It also noted that employees are entitled to the law’s provisions even if they have not worked for an employer for a specific length of time.

EEOC had originally slated the rule for publication at the end of 2023, but the commission’s deadline passed without a rule in place. The rule will take effect in mid-June.

Congress passed the PWFA at the end of 2022. The law, which took effect in 2023, requires employers with 15 or more employees to provide reasonable accommodations for job applicants and employees with known limitations related to pregnancy, childbirth and related medical conditions, absent undue hardship. The law contains a framework similar to that of the Americans with Disabilities Act, attorneys previously told HR Dive.

In a press release, EEOC Chair Charlotte Burrows said the final rule provides important information to employers, employees and job seekers and encourages both sides of an employment arrangement “to communicate early and often, allowing them to identify and resolve issues in a timely manner.”

The rule contains several examples of accommodations that employers may need to provide covered employees as well as scenarios of how the law’s interactive process works in practice.

For example, one scenario describes a worker at an assembly plant who is five weeks pregnant and sends a text message to a supervisor informing them about the pregnancy and asking for accommodations like carrying water and taking more frequent bathroom breaks. The supervisor explains how the employee can call for a substitute when a water or bathroom break is needed.

EEOC published updated “Know Your Rights” posters for employers to display after the PWFA took effect in 2023, and the commission is not updating its poster to reflect the final regulations, a spokesperson told HR Dive in an email. However, EEOC did publish an accompanying webpage with additional information.

Agency responds to abortion inclusion criticism

The agency received more than 100,000 comments in response to the proposed rule, approximately 54,000 of which asked EEOC to exclude abortion from its definition of related medical conditions, it said. EEOC said the PWFA does not require an employer-sponsored health plan to pay for or cover an abortion, nor does it require reasonable accommodations that would cause an employer to pay for travel-related expenses to obtain an abortion.

“Given these limitations, the type of accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery,” the agency said. “The PWFA, like the ADA, does not require that leave as an accommodation be paid leave, so leave will be unpaid unless the employer’s policies provide otherwise.”

On a press call Monday following the rule’s announcement, Burrows said employers would have the opportunity to raise objections to the provision of accommodations related to procuring an abortion, particularly on religious grounds, but that such scenarios would depend on fact-specific circumstances.

“I want to be clear that the EEOC takes great care to observe religious exemptions and [ensure] we are helpful to those employers who raise them in understanding our process,” Burrows said. “There may be instances in which a religious defense will apply, and it will just depend on the facts.”

Questions on employee qualification time limits addressed

In the run-up to the rule’s publication, some in the employment law space questioned how EEOC would enforce the PWFA’s eligibility requirements.

Under the law, qualified employees must be able to perform the essential functions of a job with or without a reasonable accommodation. But even if an employee cannot do so, the employee may still be qualified if their inability to do so is temporary, the employee could perform the job’s essential functions in the near future, and the inability to do so can be reasonably accommodated.

EEOC’s rule said that “temporary” in the context of the statute means that the need to suspend one or more essential functions is for a limited time only, not permanent, and that this is further limited by the phrase “in the near future.”

Because pregnancy is a temporary condition, “in the near future” is defined as “generally 40 weeks from the start of the temporary suspension of an essential function(s),” EEOC said. But an essential function need not always be suspended for 40 weeks, EEOC said, nor must an employer automatically grant an employee’s request for a 40-week suspension of an essential function. 

“The actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires, and the covered entity always has available the defense that it would create an undue hardship,” EEOC said.

For conditions other than pregnancy, EEOC said it did not set a specific length of time to define what “in the near future” means, noting only that an indefinite suspension of an essential function would not meet this definition.

Commission specifies how employees may communicate with employers

In response to public comments that questioned the rule’s requirements around how employees must communicate accommodation requests and known limitations to employers, EEOC said employees must be able to do so by “communicating with the employer representative(s) with whom they would normally consult if they had questions or concerns about work matters.”

“Employees should not be made to wait for a reasonable accommodation, especially one that is simple and imposes negligible cost or is temporary, because they spoke to the ‘wrong’ supervisor,” EEOC added. “The individuals to whom an employee can communicate to seek accommodation include persons with supervisory authority for or who regularly direct the employee’s work (or the equivalent for the applicant) and human resources personnel.”

Employees also may direct such communications to other appropriate officials, such as search firms, staffing agencies or third-party benefits administrators, EEOC said.

Republican commissioner slams ‘needlessly expansive’ rule

In a LinkedIn post, Andrea Lucas, one of EEOC’s two Republican commissioners, said she voted against approving the rule. Lucas wrote that while she supports the PWFA and some components of the EEOC’s rule, she disagreed with others, including the majority’s interpretation of the phrase “pregnancy, childbirth or related medical conditions.”

“Pregnant women in the workplace deserve regulations that implement the Act’s provisions in a clear and reliable way,” Lucas said. “It is unfortunate that the elements of the final rule serving this purpose are inextricably tied to a needlessly expansive foundation that does not.”

While the imperative for salary transparency is clear in states that have passed such laws, that openness is mostly optional for employers throughout the rest of the U.S. Still, salary transparency has increased nationally, even in states without mandates on the books, according to the National Women’s Law Center. 

NWLC combed through “extensive” Glassdoor data, which included job listings posted from March 2022 to December 2023. The analysis of employer-provided salary information, filtered by industry, revealed that “pay disclosure increased over time among all selected states — even among those without pay range transparency laws.” 

The aerospace, biotechnology, defense, financial services and pharmaceuticals sectors had the lowest rates of pay transparency. In pharmaceuticals and biotech, 48.6% of job listings disclosed salaries in states with strong transparency laws. Only 15.9% of jobs in states with weak laws disclosed the salary.

Meanwhile, HR and staffing jobs had the highest rate of salary transparency: 81.4% of listings in states with strong laws shared the job’s salary range, with 74.3% of listings in states with weak laws still sharing salary ranges.

In states with zero salary transparency laws, almost 75% of HR job listings still had a pay range posted. 

NWLC researchers said it was “notable” that states without disclosure laws showed an increase in transparency and indicated “that some employers are proactively jumping on the pay transparency bandwagon — even without a legal obligation — because they see it as a benefit for their businesses to attract and retain top talent.” 

As the law center notes, Colorado was first to require salary ranges in job descriptions — with California, New York, Washington, and Washington, D.C., following after it, and Virginia waiting for the Governor to ratify the law the state legislature passed. 

While Connecticut, Maryland, Nevada, and Rhode Island also have salary transparency laws, these states require pay ranges to be disclosed at some point in the interview process — not necessarily in the job listing.

Naturally, NWLC observed an uptick in transparency in listings due to laws being passed.

“Between March 2022 and December 2023, the share of job listings with pay disclosure rose by 67.0% in D.C., 31.9% in Maryland, 25.9% in North Carolina, 25.2% in Georgia, 24.6% in Virginia, 24.1% in Maine, and 19.8% in Michigan,” researchers noted.

”We’re witnessing an exciting cultural shift as pay information emerges from a black box,” NWLC Chief Program Officer Emily Martin said in a statement. “Pay disparities thrive in secrecy.” 

Martin added that providing that openness helps level the playing field, “especially for women and people of color who are more likely to be shortchanged in pay negotiations.”

A new state law requires the vast majority of California employers to implement workplace violence prevention plans by July 1, Cozen O’Connor attorneys said in a recent webinar. And while the California Division of Occupational Safety and Health, or Cal/OSHA, is tasked with setting standards for compliance, it’s possible employers won’t see that guidance before the law’s effective date.

Still, the statute sets out some requirements, and there are a number of things employers can do to aim for compliance, the attorneys said, recommending a focus on plain-language and accessibility, among other things. 

1. Consider a stand-alone policy.

Employers in California already must have an injury and illness prevention plan and could potentially connect that and the new violence prevention plan. But it may be worth keeping them separate because the violence prevention plan must be reviewed annually, Elena K. Hillman, of counsel with the firm, said during the Feb. 21 event. Employers may want to house the plan separately from the employee handbook for the same reason.

2. Ensure accessibility.

An employer’s plan must be easily accessible to employees, Hillman said. If someone asks to see it, the document should be readily available online or in a break room, for example. Similarly, an employer may need to have its plan translated into different languages.

3. Strive for specificity.

The plan must be specific to the hazards for each work area, Hillman said; a general plan that says it will identify hazards is not going to cut it. This means “you actually have to do [an] assessment at every work location,” Daniel R. Pascale, CEO of Cosecure Enterprise Risk Solutions, an ancillary business of Cozen O’Connor, said.

4. Get input.

Employers must involve employees in creating and implementing the plan, Hillman said. A business could survey employees, asking them to express any concerns or issues they’ve had with security, workplace violence or similar hazards. Some employers will do it via a safety committee with authorized representatives to address issues, she said; some might do it through a suggestion box. Pascale agreed: “It will be essential for you to include employees who have great familiarity with each work location, and ultimately, the types of threats that they’re facing.”

5. Identify responsible individuals.

The plan must identify the name and job title of the person responsible for implementing the plan, Hillman said. And if that’s a shared responsibility, it should indicate which pieces each individual owns. It’s also crucial that the plan spell out how employees should escalate concerns, she continued.

6. Explain how reports will be investigated.

The plan should indicate how concerns will be investigated and how employees will be informed of the results of any investigation and any corrective actions, according to Hillman.

7. Include an anti-reprisal clause.

Hillman said employer plans must include anti-reprisal clauses and should “really emphasize that employees will not be disciplined or suffer from retaliation for in-good-faith reporting workplace violence, hazards and issues.”

Beyond the plan

California’s law sets out other specifics for the required plans, but also mandates training and record retention. 

And as for enforcement, it remains to be seen just how and when Cal/OSHA will be reviewing employers’ plans and related activities. The agency may not have the manpower to consistently audit employer compliance, John R. Carrigan Jr., member of the firm, said during the webinar. It’s possible that compliance instead may be reviewed when an incident occurs or amid a negligence claim, and that noncompliance could be used to allege negligence, he said; “so I think it’s important that we all do what we can to comply with the statute.”

Companies hoping to boost collaboration, innovation and productivity by implementing return-to-office policies are facing complaints of discrimination by employees who request accommodation for mental health disabilities, The Wall Street Journal reported. 

Although confidentiality rules make getting a clear picture difficult, the U.S. Equal Employment Opportunity Commission has seen a 16% rise between 2021 and 2022 in charges against employers for discriminating against employees with anxiety, depression and post-traumatic stress syndrome, the Journal said.

And at the state level, data show mental health disorders have risen to be one of the top disability complaints filed with civil rights agencies. “Mental illness is at an all-time high, and Covid was a huge contributor,” Hannah Olson of disability-accommodation software company Disclo told the Journal. “The other piece is return-to-office.”

The Americans with Disabilities Act requires employers to engage with employees to determine a reasonable disability accommodation if they ask for one to help them do their job.

Compromise can be made difficult when it comes to mental health disabilities because of limits that confidentiality imposes on what the parties can talk about. And when it involves employees asking to remain remote, employers must contend with the impact allowing that has on employees who return to the office. 

“Allowing some employees to work remotely can stoke complaints about unequal treatment among the workforce,” the Journal said. 

“There’s a fine line between ‘I want it because it makes me happy,’ and ‘I want it because if I don’t get it I’ll be depressed or anxious,’” Patty Pryor, a Jackson Lewis attorney who represents employers, said in the report. 

After years of approving most accommodation requests, employers are pushing back; in the first half of this year, they approved just under 92% of requests — still high, but down from more than 96% in 2021, according to data tracked by Sedgwick, a disability claims manager.  

Companies that don’t appear to make an effort to accommodate a request can face an EEOC action. In September, the agency filed a complaint against a Georgia company after it fired a marketing manager who requested to work remotely three days a week to accommodate anxiety.

This situation — where an employee requests remote work as a mental health accommodation — is on the rise, Sarah DeCosse, an EEOC disability attorney, told the Journal. “There have been a lot of inquiries about this basic scenario,” she said. 

In some cases, employees will file with a state agency, where local laws can offer robust worker protections.  

Brittinay Lenhart, a project manager for a military contractor, filed a complaint with the Nevada Equal Rights Commission earlier this year when a new manager required her to come to the office for meetings after she had been allowed to work remotely to accommodate her anxiety and PTSD. 

“I had to go back on Valium to handle all this,” Lenhart told the Journal. “For my mental health I thought, I just need to quit.”

The company said it tried to find an accommodation for her. 

The case points to the challenges employers can face when they get these remote work requests. The work-from-home mandate that was imposed during Covid leaves them little room to require employees to come back to the office, Becca Lory Hector, a disability advocate and consultant, said in the report. 

“You can’t put [remote work] back in the bottle,” she said. 

Two years after President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a law that exempted sexual assault cases from mandatory arbitration, advocates are pushing for the federal government to legislate an exemption for age discrimination claims, too. 

Former Fox News host Gretchen Carlson was among those calling for more limitations on forced arbitration, a provision in employment contracts and consumer agreements that compels arbitration in legal disputes, during a recent U.S. Senate Judiciary Committee hearing. Carlson cited her own experience with forced arbitration after she accused former Fox News CEO Roger Ailes of sexual harassment. 

“My story certainly made headlines, but it could have easily been swept under the rug like countless others because of that forced arbitration clause in my contract,” said Carlson, who is co-founder of Lift Our Voices, a nonprofit targeting toxic workplace culture. “Employees have no idea that signing on the dotted line, accepting a forced arbitration clause, can strip them of their rights for future justice.”

U.S. Sen. Lindsey Graham, R-S.C., a ranking member of the committee, urged fellow lawmakers to adopt the Protecting Older Americans Act, bipartisan legislation he co-sponsored that would end mandatory arbitration in age discrimination cases. 

“What I want to do is to make sure that if you feel like you've been discriminated [against] based on your age, that you can have your day in court. Still, the burden is on you to prove you were,” Graham said. “I just think forced arbitration in that situation doesn't serve the public interest.” 

Arbitration has a place, Graham argued, when it’s between two businesses, for example, and “there is a level playing field.” 

“There is plenty of space in the American economy for arbitration. But what we've seen is these employment contracts pretty much are written to the advantage of the employer and, in areas like sexual harassment, age discrimination and a few other areas, have gotten out of hand,” Graham said. 

U.S. Sen. Dick Durbin, D-Ill., chair of the committee and a co-sponsor of the Protecting Older Americans Act, said many people in the U.S. have unknowingly agreed to arbitrate claims when they “activated a cell phone, signed up for a credit card or bought a mattress, television or countless other products.” 

“The Seventh Amendment to the Constitution guarantees the right to a jury trial. However, for tens of millions of Americans, this constitutional right is an empty promise. Instead of having their day in court, they are forced into arbitration by the fine print buried deep in employment contracts, product manuals and terms of service,” Durbin said in an opening statement. 

Such agreements can cover up age discrimination, racial discrimination and abuse in nursing care facilities, among other harms, Durbin said. 

U.S. Sens. Marsha Blackburn, R-Tenn., and Tom Cotton, R-Ark., expressed support for mandatory arbitration as a tool to keep Americans from getting “trapped in lengthy and costly litigation,” as Blackburn said. 

“I am not in favor of expanding this prohibition on arbitration beyond that unique context that we found with sexual assault and harassment. So, while I'm glad that we prohibited forced arbitration agreements in those limited circumstances, I think we have to be very careful as we look at something that would expand these prohibitions,” Blackburn said. 

Durbin, in turn, questioned the premise that forced arbitration is “easier, cheaper, faster, just.”

“If that’s all true, why is it forced?” Durbin asked. “If the employee or the person who's aggrieved thinks it's such a good idea, why don't you just make it an option to pick arbitration?”