Survey: Employers struggle with leave, marijuana, ban-the-box laws

Dive Brief:

Compliance with state and local laws remains a top concern for employers, according The Littler Annual Employer Survey, 2019. Nearly 70% of the more than 1,300 employers surveyed said complying with paid sick leave requirements caused them difficulty; marijuana legalization and background check legislation followed.
Federal agency enforcement continues to trouble employers, too, despite deregulation at that level. Respondents said they expect an increase in U.S. Equal Employment Opportunity Commission (EEOC) claims regarding harassment (61%), retaliation (49%) and equal pay (47%). Litter also found an increase over the previous year in the number of employers providing anti-sexual harassment training, updating their handbooks and addressing complaints in a more proactive way.
The survey also asked employers about the impact of technology in the workplace. Respondents said artificial intelligence has had the biggest effect.

Dive Insight:

Employers have cited state and local mandates as a serious challenge for the last few years, especually around the topics Littler notes: leave, marijuana and background checks.

Experts have warned of their building complexity: Littler Mendelson Shareholder Jeff Nowak cautioned attendees at a conference against attempting to build one leave policy that provides more generous leave than that granted by relevant statues: "Think about all the leave laws that we have to coordinate at the state, city and county level. It's a virtually impossible task to pull all of that together and follow each of those individual laws," he said.

Likewise, as more states and localities pass laws that allow for the medical and recreational use of marijuana, employers battle conflicting obligations to remain compliant, attract talent and maintain a safe working environment. "Medical marijuana impacts drug testing and drug-free workplace policies," Linda Hollinshead, a partner in the Philadelphia office of Duane Morris LLP, previously told HR Dive. "Also, there's a high probability that an employee on medical marijuana is disabled, bringing in ADA concerns and concerns about discipline and discharge."

Finally, ban-the-box legislation cropping up around the country is prohibiting employers from asking applicants if they have a criminal background at various points in the application process. One attorney stopped advising employers to try to comply with different state statutes. "I don't believe it is worth the effort to keep abreast and modify the application on a city-by-city or state-by-state basis," Joe Schmitt, a shareholder in the Minneapolis office of Nilan Johnson Lewis PA, previously told HR Dive. Instead, he recommends employers voluntarily ban the box, regardless of what laws allow them to do.

Employers also may be right to have concerns about federal enforcement action. EEOC reported late last year that its sexual harassment suits filed increased more than 50% in 2018, even though claims of overall harassment declined. It appears the #MeToo movement is affecting all industries, as awareness has increased along with intolerance of inappropriate workplace behavior.

Finally, as technology continues to encroach on the workplace, businesses are looking for new ways to leverage its benefits for themselves and workers. Working toward AI integration may be the newest challenge for HR professionals as they ready their workforce for change and explore how tech can help them do their own jobs faster and more effectively.