From Marijuana To #MeToo—Top Employment Law Updates For 2019

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This article is a recap of a recent webinar featuring Kate Bischoff from tHRive Law & Consulting.

Employment law changes tend to come in waves, driven by public perceptions of what’s fair for workers. We’re only a quarter through 2019 and employment law is already changing at a rapid pace, with an increasingly widespread commitment to greater pay equity, access to paid leave, and protection from harassment and discrimination. From the Department of Labor’s announcements on FMLA designations and a new salary threshold for overtime to bans of salary history questions and evolving harassment guidance, there is a ton for busy HR teams to stay on top of.

In our recent webinar with Kate Bischoff, Employment Law Attorney and founder of tHRive Law & Consulting, we dive deep into what is happening, what could happen and how to best prepare for the rest of the year’s changes.

Check out our recap below and register to view the full webinar for an in-depth look at this year’s top employment law updates.  

Fair Labor Standards Act


On March 7, 2019, the Department of Labor announced a proposed rule that would make more than a million more American workers eligible for overtime.

Currently, employees with a salary below $455/week ($23,660/year) must be paid overtime if they work more than 40 hours per week. Workers making at least this salary level may be eligible for overtime based on their job duties. This salary level was set in 2004.

This proposal would boost the proposed standard salary level to $679 /week ($35,308 /year). Above this salary level, eligibility for overtime varies based on job duties. Though this seems like a fairly drastic change (and it is!), keep in mind this is much lower than the increases proposed by the Obama administration in 2016, which was up to $913/week or $47,476 annually, that ultimately failed to pass.

The proposed changes would not impact the duties test and, if passed, and would likely not take effect until early 2020.

money flsa overtime changes

What does this mean? Well, the law would essentially allow more individuals to receive overtime pay with no major administrative changes for HR managers.

What should HR be doing to prepare? First, familiarize yourself with the new limits and how the increase would impact your workforce. Communicate early and often with impacted employees to reinforce that this is a DOL policy change and that you are not valuing their work less, you’re simply changing how you pay them. And, remind employees that this could result in more pay because they are now entitled to overtime.

family finance planning

Regular Rate

On March 28, 2019, the Department Of Labor proposed creating new regulations to clarify the definition of ‘regular rate’ with regard to overtime pay.

The FLSA generally requires overtime pay of at least one and one-half times the regular rate of pay for hours worked in excess of 40 hours per week. Regular rate requirements define what forms of payment employers include and exclude in the “time and one-half” calculation when determining workers’ overtime rates.

The following compensation is NOT included when calculating an employee’s regular rate of pay:

  • Wellness programs
  • Discretionary bonuses
  • Payment for unused paid leave
  • Reimbursements
  • Benefits plans
  • Tuition programs

The proposed change will provide clarity and make it easier for employers to determine what ‘regular rate of pay’ actually is.

Be warned that this could cause potential issues in the state of California, where overtime is twice the hourly rate. Those with a low risk tolerance are advised to abide by state laws to avoid conflict.

The good news is that HR teams don’t have to do anything—yet. Welcome the clarity provided by the definition and remember that state and local laws might be different.


Over the past two years, we’ve seen a significant increase in charges filed with EEOC. Because of this, we’ve also seen an increase in new initiatives and programs to prevent sexual harassment in the workplace.

The good news is, we have seen progress at the state level, with many individual states pushing through legislation. Changes include everything from victims of sexual harassment being allowed to break nondisclosure agreements and other employment contracts without penalty to mandatory annual sexual harassment training for all employees—to name just a few. There is also a push to change what the standards for ‘harassment’ are. Currently, the behavior must be ‘severe and pervasive’ to qualify, which could soon be re-worded to include a broader spectrum of behaviors.

As an HR professional, you should make sure that internal policies and procedures are up to date with any recent changes. Be sure to base all of your training in respect and adopt policies to match your company culture. Also, be sure to clearly define ‘harassment’, include policies for bystanders and deal with the fear that often comes with discussing this serious issue. You don’t want to discourage interactions or engagement within the workplace, but rather embrace and encourage respectful, appropriate relationships and behaviors for employees across all hierarchies. Additionally, train your managers on how to connect with employees, welcome any and all concerns and provide multiple paths to report an incident (online form, HR hotline, HR meeting request, etc.).

Remember, harassment training doesn’t have to be a boring, ‘check-the-box’ activity. Design programs and training that are meaningful, engaging and fun.


Marijuana has been causing HR headaches ever since states started legalizing the drug for medicinal and recreational use. Unfortunately, this headache isn’t going away anytime soon.

Inconsistencies in state and local laws throw an interesting wrench into hiring processes and drug testing policies. There have been three recent cases where an employee had a legal prescription for marijuana and either didn’t get the job or were terminated. And, each case had a different outcome.

In Michigan, the court ruled that employers can discriminate against legal marijuana users, stating “The statute does not provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for users of medical marijuana.”

However, recent cases in Connecticut and Arizona ruled that employers cannot discriminate against employees based on the legal use of marijuana.

marijuana in the workplace

We expect more of these cases to come as states and employers flesh out the specifics of the laws and how to overcome limitations presented by existing drug tests. For example, marijuana can stay in the system for almost a month.

Assuming the trend continues, expect more states to jump on the marijuana bandwagon. Prepare adequately by considering your drug testing policies. Should you test for marijuana if it is legal in your state or city? Should the rules be different for different job types (ex: office job vs a job that requires the use of heavy machinery)? Should a positive test result in immediate termination, or should marijuana use be treated like alcohol use? These are all points to consider as changes take place.

Do you have a question about one of the regulations above? You can connect with Kate via her website ( or on Twitter at @k8bischHRlaw.

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