With a firestorm brewing over the direction of Washington politics, benefit issues ranging from the paid leave to closing the gender pay gap and overtimes rules could drastically affect the legal landscape for employers.

With President Barack Obama in his last term, it could either be a time when things begin to wind down or a time when things begin to ramp up, says Hank Jackson, president of the Society for Human Resource Management. “I say get ready for that final sprint,” he said Monday at the SHRM Legislative conference in Washington, D.C.

“With the presidential election ahead and employment laws coming down the pipeline, 2016 is not a time to rest,” he said.

Mike Aitken, SHRM’s vice president of government affairs , speaking at the 2016 Legislative Conference in Washington, D.C.[Image credit: SHRM]
Mike Aitken, SHRM’s vice president of government affairs , speaking at the 2016 Legislative Conference in Washington, D.C.

[Image credit: SHRM]

Noting the tense atmosphere in Washington, Mike Aitken, SHRM’s vice president of government affairs noted that a majority of policy changes are expected to come from regulatory and executive actions and much less from the legislative side, he said. “Any policy issue [going forward] is going to need bipartisan support to get through, especially in the Senate, in order to get by some possible filibusters,” he said.

There are, however, some legislative issues such as compensation equity and pregnancy discrimination that may see the light of day, he said.

But some examples of aggressive regulatory and executive action include proposed overtime regulations as well as proposed changes to the so-called persuader rules, which govern how employers must disclose to the Department of Labor how they engage consultants to persuade employees directly or indirectly regarding the workers’ rights to organize or bargain collectively.

“These have potential to have a significant impact … and are coming out any day now” Aitken said of the persuader rules. The rule change would require more management-side lawyers and consultants to disclose the kind of advice they give to employers facing union drives.

In addition, the DOL is targeting a July release of its highly anticipated and contentious final rule to raise the overtime pay exemption threshold. The proposed regulation would set the “salary threshold” into the 40th percentile of all full-time employees, increasing it by 113% from $23,660 to $50,440 annually.

There are concerns that if “you raise it too far too fast you’ll hit some parts of the country harder like the southeast and west, as well as certain types of industries like small business and nonprofits,” Aitken said.

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“With the presidential election ahead and employment laws coming down the pipeline, 2016 is not a time to rest.”

“On top of that, if that increase wasn’t far or fast enough, DOL proposes to annually index that salary threshold,” he added. Extrapolated over the next seven years with things like cost of living increases, individuals will need to be making $90K a year to be considered exempt, he said.

In all fairness, he said, the FLSA was always meant to be part objective (salary) and part subjective (duties test) and was made to be a growing statute used to re-evaluate jobs as the economy changes.

“It’s not as easy as some would think, but the increases proposed would dramatically tip out of balance of what it’s been previously and force many more individuals into that nonexempt category,” he said.

In addition, he noted, changes are on the horizon from the Equal Employment Opportunity Commission, which has proposed changes to EEO-1 reporting and is expected to soon release guidance on retaliation.

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