There will likely be many changes for employers in 2018, but the issue front and center for most HR professionals right now is sexual harassment in the workplace.
This issue will also be the focus on Feb. 14 in our free Human Resources Outlook Webinar, where I’ll serve as the moderator for a panel discussion featuring law firm leaders and Acting Chair Victoria Lipnic of the Equal Employment Opportunity Commission.
Attorneys Expect More Claims
In interviews I conducted at the end of 2017, attorneys were already predicting an increase in harassment claims as a result of heightened awareness about sexual misconduct.
While the EEOC has not reported increased claims filed in these first months, the agency’s online pages on sexual harassment have received four times the usual traffic since the #MeToo and #TimesUp movements swept Hollywood and media industries.
"There is a cause and effect between the sexual harassment public scandals and public dialogue, and workplace lawsuits filed," Gerald Maatman Jr., a partner at Seyfarth Shaw in Chicago, told Bloomberg Law.
In 2018, there will be a "laser focus" from leadership and HR on sexual harassment and discrimination, Laurent Drogin, partner and head of Tarter, Krinsky & Drogin's labor and employment practice, told Bloomberg Law. "We are seeing a much more heightened awareness and a lower tolerance for any sort of behavior that is going to put a company in harm's way."
Organizations should be prepared to "get out ahead of the problem" by making clear that this kind of conduct will not be tolerated, Drogin said.
The real challenge will be in addressing claims and instances of alleged harassment or discrimination that do arise. First and foremost, HR departments will need to be equipped to train personnel on avoiding violations of policies that prohibit discrimination or harassment, Maatman said. More importantly, they will need to be able to respond to internal complaints, resolve them, and create workplace due process for these individuals, according to Maatman.
"Stopping the claims before they start is still the best defense" to a class action or lawsuit, he said.
Also on the Horizon
Another issue to watch in 2018 is the spread of employment mandates that impose more stringent requirements on employers than the laws they must comply with at the federal level.
The slew of new employment laws on local levels will be a big challenge for employers, Drogin said, because "they haven't been thought through or battle tested." In states like California and Massachusetts, and cities like Philadelphia and New York, employers will have to keep track of changing requirements when it comes to background checks, pay history inquiries, and decriminalized marijuana statutes.
"When these laws go live, there will be many compliance challenges because there's no history to know how these administrative agencies are going to be applying the laws. Lawyers and companies aren't exactly clear on what compliance looks like for bans on criminal history, salary history, etc.," Drogin said.
Additionally, many employers may not have the needed resources to review on a regular basis hiring applications and other documentation used by HR because the standard forms may ask questions that are now illegal, Drogin said.
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