SHRM’s March 2016 Employment Law and Legislative conference in Washington DC could have been titled “It’s a Whole New Workplace – Where do I start?” With a slate of politicos, thought leaders, Pulitzer winning authors and Washington insiders, it was a veritable who’s who of prognosticators, pundits and HR thought leaders. Fascinating and… yes…a bit head spinning at the same time. (Rather like this rather surreal primary election season, but we’ll leave THAT for another day). We’ve never seen anything like it!
I and my colleague, Michael Cardman, had the honor of attending and participating in the sessions, live tweeting throughout. You can read Michael’s synopsis of one of the hot topics addressed: The DOL’s proposed overtime rules.
Participating in a stimulating two days of general sessions and breakout speakers, some key take aways emerged as the most compelling and critical employment law issues of our day. These are more fully discussed in a Storify article which incorporates tweet commentary and insights from attendees.
Theme 1 – FLSA!
With SHRM kicking off day two of the conference by dropping the FLSA bombshell – that the proposed overtime rules had progressed to the Office of Management and Budget - the buzz in the room escalated while at the same time the air seemed literally sucked out of the sails of the avid crowd of senior HR pros. Clearly the impact of the proposed FLSA updates were top of mind and of great concern among the 500 or so attendees.
Tammy McCutchen, Principal at Littler Mendelson, formerly an administrator of DOL’s wage and hour division, spoke to a packed concurrent session “Preparing for Change: Complying with DOL’s Final Overtime Regulations”. She stressed the need to act NOW to be ready for the new rules. She also warned employers to be prepared for DOL audits (yikes!). With nearly 300,000 comments submitted in response to the proposed rules, they received more than quadruple the responses to the 2004 proposed rules! The impact to the workplace due to these rules, should they become final, is not to be overstated.
In light of the challenges workplaces are facing with the proposed rules, XpertHR is delighted to have partnered with ComplianceHR, for which McCutchen is VP, Managing Director – Strategic Solutions. ComplianceHR has developed two knowledge tools to help employers with assessing risks and plans for staff pertaining to both the overtime rules and independent contractors. McCutchen showed a screen shot of the overtime tool to the avid crowd, and audible gasps of excitement filled the room. XpertHR can provide a demo of the tools and develop a custom proposal for your workplace. Help is available – just contact us!
Theme 2 – The Continuing Evolution of Employee Leaves and Accommodations
No surprises here! While the FMLA and ADA have posed perennial challenges for HR to properly manage, the paid sick leave freight train is upending many companies’ scheduling and leaves practices and policies. And of course, managing FMLA hasn’t gotten any easier in the meantime while the scope of ADA has expanded markedly with the ADAAA.
Gregory Hare, office managing shareholder of Ogletree Deakins’ Atlanta office, spoke on FMLA, absence management and terminations in his session entitled: “He’s Not Here: Deciding Whether to Reinstate, Replace, Accommodate or Terminate Absent Employees” to a standing room only crowd. Clearly employers are challenged with the need to balance getting the work done with managing the myriad of absences covered by the FMLA. Handling terminations with employees on leave or accommodation is a particularly tricky challenge faced by attendees.
Meanwhile, handling the tricky scenario of mental disabilities in the workplace, including the interactive process and reasonable accommodation, were addressed in “How to Navigate Mental Disabilities in the Workplace” by Brenda Kasper, partner at Kasper & Frank LLP to a crowd eager to discuss challenging situations in each of their workplaces. Further complicating the issue, the legalization of marijuana for recreational and/or medical purposes across various states and the potential for marijuana to be an accommodation was also reviewed in the session as well as touched upon in “Buzz Kill: When Can Employers Terminate Employees Who Legally Use Marijuana”, conducted by Scott Oswald, managing principal at the Employment Law Group. Consistency, being fair, and focusing on what can be done to enable the employee to perform the job were stressed.
Theme 3 – How the Affordable Care (ACA) Act is Reshaping the Workplace
The ACA was another point of frequent discussion and several concurrent sessions. Even former Attorney General Eric Holder, in his wide ranging lunchtime discussion of workplace and business trends with SHRM’s Hank Jackson, commented on the unlikelihood of undoing the ACA, despite what some current POTUS candidates might say.
In “The Affordable Care Act and the High Price of Noncompliance”, David Lindgren, senior manager of Compliance & Public Affairs with Flexible Benefit Service Corporation addressed costs and penalties under the ACA. With the new reporting requirements of 2016, attendees were rapt and heads were spinning! 2016 is looking to be the most expensive year yet for ACA compliance.
The FLSA notwithstanding, the ACA is also shaping how workplaces manage staffing, from who is considered full time or part time, and whether employees are hired seasonally or as temporary workers.
Theme 4 – Real Time Feedback, Importance of Documentation and the End of Annual Performance Reviews?
Gallup CEO Jim Clifton regaled attendees with employee and workplace insights based on Gallup polling. Most notable were his insights regarding what millennials want from work, how their interests are changing the workplace and driving more frequent feedback, and potentially are sounding the death knell for annual performance appraisals.
On the other hand, Allison West, Principal with Employment Practices Specialists, in her session “Documentation on Trial” touched a nerve about the risks and worries of front line managers not understanding how critical proper documentation is. She even injected some humor with a real example of a supervisor’s email documentation (see below for a good chuckle) and examples of what a front line manager might say vs. what a jury would hear! Scary and funny at the same time for those in HR! Clearly reinforces the need for strong training and policies!
Theme 5 – The Emergence of the Gig Economy and Increasing Telecommuting
It really is a whole new workplace out there. Numerous sessions addressed the risks and benefits of the “gig economy”, increasing use of temporary and contract workers, and employees working from home. State law variations, technology, effective management, so many issues arise with this changing landscape. In sessions including “The Gig Economy and the Workplace of Tomorrow ” by David Fortney, attorney at Fortney Scott, “When Enough Is (Not) Enough: Today’s Legal Landscape in Workplace Flexibility” by Lisa Horn of SHRM, and “Benefits and Legal Pitfalls on Remote Access, Telecommuting & Mobile Connections” by James Reidy, Attorney/Shareholder at Sheehan Phinney Bass + Green PA (and XpertHR contributor!), much was discussed about these sweeping changes.
Theme 6 – Millennials and New Expectations
Changing expectations in the workplace, in large part spawned by millennials, range from demands for workplace flexibility, telecommuting, and more real time coaching. Gallup CEO Clifton addressed mega trends in his lunch sessions and breakout sessions included “When Enough Is (Not) Enough: Today’s Legal Landscape in Workplace Flexibility” by Lisa Horn of SHRM, and “Benefits and Legal Pitfalls on Remote Access, Telecommuting & Mobile Connections” by James Reidy, Attorney/Shareholder at Sheehan Phinney Bass + Green PA.
Theme 7 – Leadership
Leadership in the workplace. Leadership through change. Leadership, leadership, leadership. This isn’t a new concept and it’s not going away. Strong leadership will help employers navigate these challenges and compelling speakers, from closing keynote speaker Doris Kearns Goodwin, to Eric Holder, to EEOC Chair Jenny Yang, to SHRM’s CEO Hank Jackson helped the audience with humbling insights to inspire!
More extensive coverage is addressed in the Storify article, including tweets from many more attendees.
Exciting times in the workplace and helpful networking and practical information thanks to SHRM!