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Companies Grappling with DOL Enforcement, Other Employee Issues

Companies Grappling with DOL Enforcement, Other Employee Issues

Annual survey finds companies also focusing on preventing harassment and pay inequality in the second year of the #MeToo movement.

Employers report feeling very little relief from federal regulation and enforcement, according to the Littler Annual Employers Survey, 2019.

The survey shows that employers’ perceived impact of various regulatory issues on their workplaces remains relatively unchanged from last year. Enforcement of federal employment laws by the Department of Labor (DOL) is their leading concern, with 78% of respondents anticipating a moderate or significant impact on their workplaces over the next year (up slightly from 74% in the 2018 survey). In the 2017 and 2018 surveys, 77% said the same of enforcement by the Equal Employment Opportunity Commission (EEOC).

“Despite the lack of activity on regulatory matters over the past two years, agencies are moving quickly to complete their regulatory agendas before the 2020 election season,” said Michael Lotito, co-chair of Littler’s Workplace Policy Institute. “2019 is a year of preparation as the race is on to finalize rules that could have an enormous impact for employers in the coming years.”

This includes the DOL’s new proposed rule to revise the “white collar” overtime exemption regulations, which the majority of employers were already preparing to comply with prior to the release of the proposal.

 - 42% of respondents instituted changes prior to the injunction of the 2016 rule

-- 40% are reviewing job descriptions to verify the classification of current employees

-- 36% are auditing compensation to identify those employees likely to be impacted.

Compounding the federal complexities, the proliferation of state and local employment laws is creating persistent compliance challenges for companies across a range of issues.

Some areas of concern include:

-- Paid sick leave (69%) are concerned about paid sick

--Legalization of marijuana (54%)

--Background check stipulations (52%)

Workplace Harassment and Pay Equity Remain Top of Mind

With the continued momentum of the #MeToo movement and calls for workplace equality extending to include equal pay, sexual harassment and gender pay equity are key areas of focus for companies.

Compared to last year’s survey, employers are taking greater action across the board to curb sexual harassment in their workplaces.

  • 63% are providing additional training to supervisors and/or employees (up from 55% in 2018)
  •  51% are updating HR policies or handbooks (up from 38% in 2018)
  • 37% are proactively addressing complaints and potential misconduct (up from 29% in 2018)

“#MeToo has touched every industry imaginable; it impacts all types of companies, large or small, high profile or even no profile,” said Helene Wasserman, co-chair of Littler’s Litigation and Trials Practice Group. “The survey data shows that most companies are taking this issue seriously and are focused on providing training and updating policies and procedures to ensure employees are treated fairly and feel safe in the workplace.”

In addition, most employers are taking action to address gender pay equity, with 48% auditing salary data and pay practices and 24% revising hiring practices, including updating applications and job descriptions or ceasing to ask candidates for prior salaries. Still, more than a third (37%) report having made no changes to address pay inequality, which may lead to legal and reputational risks as more and more states contemplate pay equity statutes and with rising public expectations of equality and fair pay for all employees. 

Respondents’ expectations of the EEOC’s enforcement priorities over the next year reinforce the prominence of these issues. The top three areas where an increase in workplace discrimination claims is expected are harassment claims (61%), retaliation against employees who file discrimination or harassment claims (49%) and equal pay (47%).

AI and Data Analytics Bring New Opportunities, Challenges

The survey findings show that companies are starting to use robotics, artificial intelligence (AI) and analytics to boost efficiency and improve performance, but few are seizing on the full range of opportunities presented by these emerging technologies, nor are they sufficiently preparing for the impact on the workforce.

Screening resumes or applications was the most commonly cited use of AI or analytical tools in recruiting and hiring, by 25% of respondents. However, 63% are not currently using AI-based tools in recruiting and hiring, suggesting that there is far more potential for employers to leverage AI to support workforce management decisions.

Similarly, most employers are taking some steps to prepare for the impact of robotics, AI and automation on the workplace and workforce. The most common actions are identifying tasks that could be automated (37%) and hiring employees skilled in emerging technologies (22%). However, the 46% that have not taken any action in this area indicates that there is work to be done. Truly preparing for the sweeping changes ahead will require a deeper evolution in the way companies approach talent planning and job training.

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