1. Crackdown on Misclassification: DOL Tightens Independent Contractor Criteria
In 2024 there is a new focus on independent contractors (1099) who fail to meet the test used by courts and the Department of Labor (DOL). The DOL takes the position that every worker is an “employee” unless the business can prove that it meets the 6-factor test to classify the worker as an independent contractor.
In general, you should have an experienced HR professional or an employment lawyer assist you in determining whether a worker is allowed to be classified as an independent contractor, rather than an employee.
Mistakenly classifying workers as contractors when they do not meet the legal test is often a very expensive mistake. - David Miklas
2. Pro-Employee Shift: New Religious Accommodation Test Sets Higher Employer Burden
New test used by the courts and Equal Employment Opportunity Commission (EEOC) for religious accommodation requests. The new test is much more pro-employee, requiring an employer that does not want to provide the religious accommodation to show that the requested accommodation would result in substantial increased costs in relation to the conduct of its particular business.
The test is not just a guess but rather requires employers to analyze the impact of the requested accommodation in light of the nature, size, and operating costs of an employer.
An employer with 50 employees may have a harder time showing an undue hardship than would an employer with 15 employees.
3. Broadened Protections for Pregnant Workers
Increased accommodations required for women who have a known limitation related to pregnancy, childbirth, or related medical conditions. It is rare that an employer will be able to refuse the accommodation as an “undue hardship.”
This new law (Pregnant Workers Fairness Act) applies to women who are trying to get pregnant, want time off for an abortion, time off for post-partum counseling, a miscarriage, etc. When in doubt, give the accommodation requested, if possible. Before you refuse the accommodation, check with HR or an employment lawyer.
Employers with 15 or more employees are covered by this law and this law requires employers to engage in an interactive process with employees who request an accommodation. This new law also prohibits employers from requiring an employee to “take leave” if another reasonable accommodation can be provided that would let the employee keep working.
4. Handbook Overhaul: NLRB Targets Compliance in Employee Handbooks
Employee handbook updates are important this year. With the National Labor Relations Board cracking down on employee handbook language, it is important that your handbook is updated.
In the past year, I have updated language in seven different policies due to changes in the law, such as the Providing Urgent Protections for Nursing Mothers Act (PUMP), the Pregnant Workers Fairness Act, the change last summer by SCOTUS to use a new test to address religious accommodations, and new language to address employees using artificial intelligence such as ChatGPT.
Just so we are all clear, it is almost always illegal to have a policy that prohibits employees from discussing their wages.
All South Florida employers should work closely with a Human Resources professional and an employment lawyer to ensure compliance with the many laws that impact employers.
David is a seasoned attorney specializing in labor and employment law, dedicated to serving a diverse range of Florida employers, including private companies and public entities such as cities and school districts. His expertise is grounded in a proactive approach to legal issues, prioritizing the prevention of lawsuits through strategic advice and guidance. However, when litigation becomes inevitable, David is well-prepared to robustly defend his clients in court.
In response to the evolving landscape of workplace culture, particularly with the emergence of the #MeToo and #BLM movements, David has played a pivotal role in assisting employers. He focuses on training managers and conducting thorough investigations into claims of harassment, ensuring that workplaces not only comply with legal standards but also foster a safe and respectful environment for all employees. His commitment to navigating complex legal challenges and his dedication to client advocacy make him a trusted advisor in the field of employment law.
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