Top 2019 Compliance Challenges for HR: Ready, Set, Go … · • Scientific advancements - automation, robotics, artificial intelligence challenging traditional workers • Changing

• Top 2019 Compliance

Challenges for HR:

• Ready, Set, Go

• January | 2019

• April | 2017 Beth P. Zoller

XpertHR Legal Editor@BethZoller1

https://twitter.com/BethZoller1

What Affects Workplace

• Society

• Culture

• Technology

• Government

• Legal landscape

• Generational changes

Increased Compliance Obligations/Requirements

• Laws

• Regulations

Today’s Workplace Evolving Rapidly

Significant Changes Affecting Workplace

January 16, 2019

XpertHR Template

3

• Civil fines

• Criminal penalties

• Administrative actions – EEOC charge, unfair labor practice

• Litigation

• Harm to business reputation and professional image

• Bad publicity/negative press and social media

Risks of Noncompliance

Employers Face High Stakes

January 16, 2019

XpertHR Template

4

• XpertHR conducts an annual survey of HR professionals Fall 2018

• Received over 800 responses from small, medium and large employers

• Wide variety of industries, all geographic areas of the country

• Information provided guidance to compile list of top challenges and whitepaper

• Will touch on several specific findings throughout today’s presentation

XpertHR Survey

January 16, 2019

XpertHR Template

5

Challenge #1: Federal Challenges

Changing Federal Focus

January 16, 2019

XpertHR Template

6

• Fundamental shift with Trump presidency employer friendly policies

• Under Obama – pro-employee sentiments, greater agency authority

• Now smaller role for government, decreased regulations, driving oversight to states

• Roll back agency authority – EEOC, NLRB, OSHA, DOL

Challenge # 1: Federal Challenges

Areas of Concern

January 16, 2019

XpertHR Template

7

Affordable Care Act

• Obligations and uncertainty continue to burden employers

• 39% viewed preparing for future of healthcare and ACA

as very or extremely challenging

Immigration/Travel Ban

• Hardline stance/restrictive policies in light of increasingly diverse society

• Increased compliance obligations, I-9 audits and raids by ICE

• 31% viewed hiring of workers on visas very or extremely challenging

Challenge # 1: Federal Challenges

Areas of Concern

January 16, 2019

XpertHR Template

8

Conflict Federal/State Marijuana Laws

• Employers unsure how to handle

• 34% were very or extremely challenged by conflicting laws

LGBT Rights

• Trump administration Title VII does not protect sexual orientation and gender identity

• Rescinding bias protections

• Protecting religious liberty at expense of individual rights

Supreme Court

• Conservative Justices appointed by Trump Gorsuch and Kavanaugh

• 28% viewed impact on employment law as very or extremely challenging

• Closely monitor developments new Congress both House and Senate 2019

• Anticipate new regulations GINA and ADA wellness, overtime

• Comply with the laws and regulations that are on the books, at least until they are changed

• Comply with immigration requirements

• Practice inclusion regarding LGBT rights

• Maintain detailed adequate records/documentation regarding employees/employment actions

• Legitimate business reason for each employment decision

Challenge #1: Federal Challenges

What an Employer Should Do

January 16, 2019

XpertHR Template

9

• Minimum wage increases

• Paid sick leave/paid family (parental) leave (small number states)

• Medical marijuana (33 states and growing, expanding conditions), recreational marijuana (10 plus states)

• Harassment protections increased (i.e., California, Delaware, Maryland, New York, New York City)

• Predictable/predictive scheduling

Challenge #2: State and Local Issues

Trending and Emerging Issues

January 16, 2019

XpertHR Template

10

• Salary history ban/equal pay (i.e., CA, Hawaii, Illinois, Massachusetts, New Jersey, Oregon, Washington)

• Breastfeeding/pregnancy accommodations (i.e., Illinois, Massachusetts, New Jersey, Utah, San Francisco)

• Gun laws/weapons in the workplace

• Military protections (i.e., California, New Jersey, Massachusetts, Missouri, South Dakota)

• Domestic violence leave (i.e., Vermont and Washington)

• Ban the Box for private employers


Trending and Emerging Issues

January 16, 2019

XpertHR Template

11

38% very or extremely challenged by paid sick

leave laws

36% very or extremely challenged by paid family/paid parental

leave

32% very or extremely challenged by medical

and recreational marijuana laws

30% viewed investigating

harassment complaints as very or extremely

challenging

29% very or extremely challenged by equal pay

and wage disclosure laws

Survey Says

January 16, 2019

XpertHR Template

12

• Carefully monitor existing/emerging state and local law developments stay on top of trends

• Know which state/local laws apply to workplace – create comprehensive strategy to manage conflicting laws

• Determine how to handle conflicts/address state and local differences in employee handbooks/ policies

• Determine how to handle legal updates

• Train supervisors and employees on need-to-know state and local laws and key differences



January 16, 2019

XpertHR Template

13

• Workforce planning the process of aligning business needs with workforce needs to ensure legal compliance

• Internal and external factors shape recruiting, hiring and retention

• Economy and market factors

• Laws and regulations on federal, state and local level

• Technology/mobile devices improve communications and productivity

• Increase in flex work/gig economy/alternative work arrangements greater work/life balance/control

• Scientific advancements - automation, robotics, artificial intelligence challenging traditional workers

• Changing societal demographics aging Baby Boomers, Millennials/Gen Z, managing multiple generations

• Global society and global marketplace

• Using HR data- predictive analytics

Challenge #3: Workforce Planning

21st Century Workforce Trends Affecting Employment

January 16, 2019

XpertHR Template

14

64% viewed finding high quality applicants

as very or extremely challenging

52% very or extremely challenged by

ensuring employees and supervisors have

the necessary skill sets

50% very or extremely challenged when it came to creating a succession plan

49% found increasing employee engagement,

morale and satisfaction very or

extremely challenging

49% viewed retaining employees as very or extremely challenging

47% viewed managing performance and

providing professional development

opportunities as very or extremely challenging

43% viewed aligning talent retention

strategy with business objectives as very or


40% very or extremely challenged by handling

mergers and acquisitions

Survey Says

January 16, 2019

XpertHR Template

15

• HR should play an active role in shaping the evolving workforce and identifying right people for the right

positions at the right cost

• Understand the unique factors affecting business and assess short and long term goals

• Align HR objectives with business objectives

• Utilize data analytics in all phases to track progress (recruiting/hiring, performance, retention)



January 16, 2019

XpertHR Template

16

Hiring

• Focus on industry experience, skills, competencies, talent

• Keep budget/business goals in mind

• Consider gig and contract workers

• Utilize technology and mobile apps in recruiting

• Remember new laws (salary history, ban the box)

Training

• Focus on professional development/education and building long term skills

• Provide leadership opportunities/mentoring/support to move into higher position

• Highlight key competencies and how they can benefit organization



January 16, 2019

XpertHR Template

17

Performance

• Who will conduct reviews and how often

• Consider goals of performance reviews/what to accomplish

Engagement/Retention

• Assess who the employer is losing and why

• Identify risks

• Consider how to retain (increased compensation/benefits/work-life balance)

Managing Generations

• Consider retirement options for Baby Boomers – packages/benefits offered

• Account for unique skills/talents of younger generations – Millennials and Generation Z

• Retain older workers in changed capacity



January 16, 2019

XpertHR Template

18

• Expanding federal, state and local level leave laws

◦ Federal FMLA, ADA, USERRA

◦ State and local level paid sick (MD, NJ, VT, MI), military, domestic violence, bereavement, organ

donor, school activities, emergency responder, crime victim leave – (new – NYC proposal paid time off)

• Managing their complex interrelationship

• Consider leave as a benefit/perk

Challenge #4: Employee Leaves

Various Types of Leave Now Legally Required

January 16, 2019

XpertHR Template

19

• Injured employee may be subject to FMLA- ADA – workers compensation

• Sick employee may be subject to State and local paid sick leave laws- ADA

• Pregnant employee/new parent may be subject to FMLA, state family leave laws, paid family leave

insurance

• Military employee may be subject to USERRA – ADA- family military leave- state military leave laws


Intersection of Leave Laws

January 16, 2019

XpertHR Template

20

47% found tracking and complying with rapidly

changing state leave laws to be very or extremely

challenging

46% found tracking and complying with rapidly

changing local leave laws to be very or extremely

challenging

40% found determining if the employer will offer

uniform leave benefits or comply with various law to

be very or extremely challenging

39% found determining an overall business strategy

for leave to be very or extremely challenging

Survey Says

January 16, 2019

XpertHR Template

21

• Determine which leave laws apply to each workplace and how laws work together

• Provide proper notice of leave laws - policies and procedures, employee handbooks, notices/posters

• Review all paid time off, vacation or other paid leave policies and reasonable accommodation policies to

determine if other policies may need to be created

• Avoid blanket policies – leave room for discretion

• Train supervisors - handling leave requests, tracking

• Understand how different leave related laws intersect

• Determine comprehensive approach if multistate employer

• Decide if you will go beyond legal requirements – may reduce turnover/absenteeism and increase

productivity/retention/morale

• Avoid wrongfully denying leave request – could lead to employer liability



January 16, 2019

XpertHR Template

22

Advantages

• Benefits can help attract/retain employees

• Increase employee engagement

• Provide competitive advantage

• Decrease absenteeism/tardiness

Challenges

• Compliance with ERISA, COBRA, ACA, HIPAA, GINA

• Effectively communicating to workforce/ understanding requirements

Challenge #5: Benefits/Health/Wellness

Important to Have Happy & Healthy Employees

January 16, 2019

XpertHR Template

23


employee mental health issues

40% believed preparing for the future of healthcare and ACA was very or extremely

challenging


communicating the value of benefits to the

workforce

38% found adjusting benefit offerings to

attract a diverse workforce very or


36% very or extremely challenged by aligning

employee benefits offerings with

business objectives

30% very or extremely challenged with respect to

determining which voluntary/supplementary benefit programs provide

best ROI

28% found implementing wellness

programs very or extremely challenging

Survey Says

January 16, 2019

XpertHR Template

24

• Evaluate benefits – Competitive? Latest trends? Match organizational needs? Generational needs?

• Offer creative benefit options (beyond health/dental/vision)

◦ Tuition reimbursement

◦ Flexible work time

◦ Job sharing

◦ Commuting benefits

◦ Gym membership

◦ Concierge services (child care, pet care, dry cleaning),

◦ Student loan assistance

◦ Financial planning

• Assess vendors and offerings, redesign or eliminate if not working



January 16, 2019

XpertHR Template

25

• Consider supplemental and voluntary options/ personalization and customization

• Comply with ACA reporting requirements/obligations in accurate and timely manner

• Understand increased use of technology and mobile applications, telemedicine, AI

• Effectively communicate benefit options to workforce

• Focus on employee wellness and employee assistance programs (not easily detected)

• Make sure that any wellness programs are compliant



January 16, 2019

XpertHR Template

26

• Rapid pace of technological developments/omnipresent internet/mobile devices

• Positive impact mobility, communication, productivity and efficiency, but enhanced risks

• Tremendous amount of information digitally stored belonging to employer, employees, customers/clients

• HR needs to take steps to minimize risk of cyber breaches/ protect confidential digital information

Challenge #6: Data Security & Privacy

Critical to Safeguard and Protect Confidential Data and Information

January 16, 2019

XpertHR Template

27

State Efforts

• All 50 states have data security law in place

• Employers required to provide notice when personally identifiable information acquired without authorization

• Information extends to name, SSN, drivers license number, credit/debit card information, bank accounts

• States like California and New York taking additional steps to protect privacy of data and information

• Biometric privacy laws

European Union

• Organizations that collect/transfer data of workers in the EU have compliance obligations affecting HR data

• Must ensure data processed for permissible reason, provide notice when processing

• Allow workers to access, correct, object to delete or restrict processing of personal data

• Implement organizational/technical privacy measures

• Implement security safeguards/security incident response plan


Legal Efforts to Protect Data and Information

January 16, 2019

XpertHR Template

28

51% very or extremely challenged when it came to preventing cyber breaches and

data security


managing mobile devices, wearable

technology and the internet of things

39% very or extremely challenged when it came to managing

technology and social media at work

34% very or extremely challenged regarding the impact of block chain on recruiting,

hiring, payroll, productivity

31% viewed preparing for use of robotics, AI

and automation to replace workers as very or extremely

challenging

31% very or extremely challenged when it came to protecting

employee information from data breach

30% viewed complying with state data breach

laws as very or extremely challenging

28% very or extremely challenged by GDPR

compliance

Survey Says

January 16, 2019

XpertHR Template

29

• Take stock of confidential information/ensure it is secure by:

◦ Using security tools- firewalls, 2 step/biometric authentication, encrypted data

◦ Encouraging 3rd party vendors, partners, providers to take similar same security measures

◦ Limiting access to private/confidential data and only on a need-to-know basis

• Work closely with IT to develop, implement and enforce policies- confidentiality, privacy, mobile devices,

social media, employee conduct, business ethics

• Utilize non-disclosure agreements



January 16, 2019

XpertHR Template

30

• Conduct background screenings – look out for red flags fraudulent conduct

• Train employees and supervisors

◦ Safety when using employer’s networks

◦ Suspicious emails/links

• Monitor/observe employee activity

• Conduct exit interviews make sure equipment/technological devices are returned, access terminated

• If breach occurs must critically assess, remediate, discipline



January 16, 2019

XpertHR Template

31

• Marijuana conflict federal law prohibits marijuana use vs. state law allows medical/ recreational purposes

• Recreational laws strictly regulate – ban public use, prohibit on the job use, do not require accommodation

• Some users may be protected as individuals with a disability

• Efficiency, safety and productivity priority especially for safety sensitive positions

• Marijuana use leads to increased workers comp claims/insurance , absenteeism, tardiness, inattention

• Drug testing impacted

• May implicate off duty conduct laws

Challenge #7: Marijuana/Drug Testing

Changing Marijuana Laws and Drug Testing Key Area of Concern

January 16, 2019

XpertHR Template

32

41% were very or extremely challenged

with respect to managing conflict of federal and state marijuana laws

34% were very or extremely challenged by maintaining a drug free

workplace in light of changing laws


with respect to understanding the federal policy towards marijuana

33% were very or extremely challenged by

managing employees who use marijuana

medically or recreationally


with respect to medical and recreational

marijuana on the state and local level

25% found implementing wellness programs very or extremely challenging

Survey Says

January 16, 2019

XpertHR Template

33

• Develop/implement/enforce drug free workplace policies prohibit use of unlawful drugs on employer’s

premises and during working time, prohibit misuse of prescription drugs, safe driving

• Treat drugs like alcohol prohibit on the job use because of effect on safety and productivity

• Train supervisors on warning signs

• Avoid quick decisions on employees who may be using drugs may be protected by ADA

• Provide reasonable accommodations, counseling

• Be careful about taking action based on lawful off-duty conduct



January 16, 2019

XpertHR Template

34

• Drug testing

◦ Comply with latest laws as rapidly changing area

◦ Depends on industry/position

◦ Consider whether it is essential to test for non-safety sensitive positions

◦ Notify employees of drug testing methods and means

◦ Consider using different mechanisms (i.e., field sobriety tests capture use rather than traces, oral swab

saliva less invasive, less fraud, less cost, quicker turnaround)



January 16, 2019

XpertHR Template

35

• Communication tool between employer and employees

• Sets forth policies/standards for employee behavior, workplace conduct and performance expectations

• Used by managers/supervisors as a guide to handle common issues

• Incorporate an employer’s goals and mission as well as key policies

• Provides fairness and consistency across board

• Assists in enforcing policies by showing employee consent

• Important tool in preventing and defending against lawsuits

Challenge #8: Employee Handbooks

Essential to Implement and Update Your Employee Handbook

January 16, 2019

XpertHR Template

36


ensuring handbooks read or understood by

employees

47% found keeping current with new

laws/trends to be very or extremely challenging

46% were very or extremely challenged by managing

handbooks as a multistate employer including local

requirements and overlapping requirements


incorporating local requirements into

employee handbooks

31% found aligning employee handbooks

with business objectives to be very or extremely

challenging

Survey Says

January 16, 2019

XpertHR Template

37

• Monitor developments at federal, state, local level – understand which laws apply

• Be aware emerging issues– EEO, accommodations, leave, smoking, predictable scheduling, equal pay

• Update handbook on annual or semiannual basis

• Take right approach for particular workforce- multistate/multijurisdictional employer

◦ Handbook based on federal requirements, provide state supplements

◦ Use separate handbooks for each state

◦ One handbook with uniform policies across states providing greatest benefits to all



January 16, 2019

XpertHR Template

38

• Draft in clear/concise/unambiguous manner

• Do not infringe upon Section 7 right to engage in protected concerted activity

• Careful about policies - social media, contact with media, confidentiality, investigations, communications

• Make sure readable, relevant, interesting- provide anecdotes/examples/narratives and color/visuals/graphics

• Require employees to acknowledge receipt, consent and understand policies

• Provide frequent training on handbook policies



January 16, 2019

XpertHR Template

39

• Current events mass shootings, bomb threats, terrorist attacks

• Need to implement procedures to take in case of active shooter situation

• Recognize employer duty to protect under OSHA General Duty Clause

• Prepare employees and supervisors mentally and physically to respond to crisis and manage aftermath

• Understand complex set of varying state gun laws and impact on employer weapon policies

• Increase awareness of workplace violence and work to prevent

• Recognize connection between workplace violence and domestic violence

Challenge #9: Workplace Violence

Need to Minimize Risk and Prepare for Active Shooter/Workplace Violence

January 16, 2019

XpertHR Template

40

45% stated that preparing for or responding to an active shooter or

workplace violence situation was very or extremely challenging

Survey Says

January 16, 2019

XpertHR Template

41

• Ensure proper policies in place addressing workplace violence, visitors, weapons, domestic violence

• Conduct audit to identify gaps in safety and security such as broken locks and security systems

• Institute controls and make it more difficult to access workplace

• Conduct thorough background screenings but be careful about ban the box/criminal history laws

• Implement clear complaint procedure to report incidents

• Communicate procedures to take in case of violence or active shooter



January 16, 2019

XpertHR Template

42

• Provide workplace violence prevention training and drills including information on

◦ Safe spots to take during incident

◦ How to recognize sound of gunshots and react to gunfire

◦ Understand when and where to call 911

◦ React to law enforcement

◦ Adopt survival mindset during crisis

• Designate a team to respond to workplace violence incidents

• Develop emergency response plan to secure premises, contact police, notify employees and families,

address media and provide counseling

• Assemble crisis kits containing radios, floor plans, personnel lists, flashlights

• Train supervisor to recognize potential signs of a violent employee (i.e., paranoid, depressed)



January 16, 2019

XpertHR Template

43

• Race/color sex, age, religion, national origin, disability

• Gender identity/sexual orientation

• Political affiliation

• Work experience

• Learning style

• Education

• Family/caregiver status

• Physical characteristics

• Pregnancy/lactation

• Medical marijuana user

Challenge #10: Diversity and Inclusion

Goes Beyond Traditional Notions

January 16, 2019

XpertHR Template

44

• Obtain best talent possible

• Improve employee productivity and efficiency

• EEO compliance/reduce legal claims

• Improved internal and public image/brand

• Increased customer loyalty/engagement

• Increased sales/profits

• Creativity, innovation and new ideas – viewpoints/ perspectives

• Opportunities for learning, growth, development, challenges

• Increased adaptability/ flexibility - changing marketplace/global world

• Employee retention/ less turnover, mutual understanding/ respect

• More civil workplace –fairness, decrease conflict and reduce complaints


Benefits of Diversity in an Increasingly Global World

January 16, 2019

XpertHR Template

45

• How to reconcile cultural fit and diversity/inclusion

• Time to manage diversity efforts

• Communication (language/cultural barriers)

• Resistance to change

• Increased conflicts/tension - decreased productivity/turnover

• Stereotypes, prejudice and discrimination

• Perceived preferential/favorable treatment

• Cost/resources -training, accommodation

• Lack of leadership/support from CEO/senior management and leaders

• Not aligned with business strategies/plans/priorities

• Size or location of workplace

• Low turnover


Challenges of Diversity in an Increasingly Global World

January 16, 2019

XpertHR Template

46

35% were very or extremely

challenged by eliminating

unconscious bias


challenged by recruiting a more diverse workforce


challenged by developing a

workplace culture of inclusion


challenged by achieving diversity and inclusion goals


challenged by moving

women/minorities into leadership

roles


by managing different generations

in the workplace


challenged by managing diversity

as a global employer

26% were very or extremely challenged by aligning diversity efforts with business

strategy


by providing reasonable

accommodations to a protected class


by maintaining a diverse workforce

Survey Says

January 16, 2019

XpertHR Template

47

• Be proactive and incorporate diversity into the employer’s organization

• Create an inclusive workplace with training and policies to support

• Align diversity with business goals and corporate strategies

• Obtain commitment from key stakeholders and upper management

• Understand benefits diversity can bring to the organization

• Create mentoring programs and opportunities for individuals from different backgrounds can work together



January 16, 2019

XpertHR Template

48

• Incorporate diversity into recruiting and hiring process

• Make sure job ads and applications neutral and free of bias

• Cast a wide net – attract candidates through various sources, look beyond geographic pool

• Focus on job requirements, ability, qualifications, performance and how candidate may contribute

• Utilize a diverse panel of interviewers and avoid discriminatory questions

• Be careful about background checks- Ban the Box, discrimination against immigrants

• Onboard into an inclusive workplace emphasizes open door policy, respect, tolerance



January 16, 2019

XpertHR Template

49

• Develop and enforce policies and practices encouraging diversity and tolerance

• Prohibit discrimination and harassment

• Provide reasonable accommodations unless undue hardship – disability, religion, LGBT, lactation, caregiver

• Consider utilizing employee resource groups or affinity groups for those who share common traits or

characteristics (i.e., working mothers, LGBT individuals, veterans, Hispanics and individuals with disabilities)

• Provide diversity and sensitivity training to all employees and supervisors – address stereotypes/prejudices



January 16, 2019

XpertHR Template

50

• Review and revise their workplace policies and practices

• Develop employee handbooks and distribute policies to employees

• Train supervisors and employees

• Maintain through records and documentation

• Make sure to remain legally compliant

• Be proactive and prepared to respond to changes in a meaningful way

Final Thoughts

Know How to Respond to Challenges

January 16, 2019

XpertHR Template

51

Documents

Top 2019 Compliance Challenges for HR: Ready, Set, Go … · • Scientific advancements - automation, robotics, artificial intelligence challenging traditional workers • Changing