Much of the industry is rightly focused on dealing with the impacts of major trucking regulations now dropping upon the heads of motor carriers large and small alike: the electronic logging device (ELD) mandate, due to go into effect in December 2017; Phase 2 greenhouse gas (GHG) emission rules that mandate fuel economy increases for commercial vehicles; and new food safety rules due to go into effect in March next year that impose some significant data collection and retention protocols on refrigerated and food-grade tanker fleets.
[And those, my friends, are only just a few of the many new rules trucking faces.]
However, there are many other “non-trucking” regulations promulgated by the overly zealous “pen” of the Obama administration that will impact motor carriers as well.
The recent 2016 Executive Employer Survey conducted by employment and labor law firm Littler recently polled 844 executives from a broad swath of businesses and came up with a list of the regulations – new and old alike – that are placing the most pressure on their operations.
New overtime rules, coupled with aggressive DOL enforcement:
Some 82% of those polled Littler expect DOL enforcement to have an impact on their workplace over the next 12 months, with 31% anticipating a significant impact, up from 18% in the 2015 survey.
This concern is no doubt driven in large part by the recently finalized Fair Labor Standard Act “white collar” overtime regulations that drastically increase the number of American workers who can qualify for overtime pay, noted Littler attorneys Tammy McCutchen and Lee Schreter, in a joint statement.
Although respondents completed the survey in the weeks prior to the release of the final rule, 65% had already conducted audits to identify affected employees, they said.
“Employers are clearly feeling the impact of the DOL’s increasingly aggressive regulatory agenda, most notably the new overtime regulations,” McCutchen and Schreter pointed out.
“While it is encouraging that the majority of respondents started to prepare before the rule was finalized, more than a quarter (28%) said they had taken no action given delays in the rulemaking process,” they added. “Given that the reclassification process can take up to six months and the rule is unlikely to be blocked from going into effect on December 1, 2016, employers should move quickly to ensure compliance.”
Increased DOL enforcement is just one example of employers grappling with a continuously shifting regulatory and enforcement landscape, as federal agencies continue to be the governmental bodies inflicting the most pressure on employers.
Joint Employer rules:
With the National Labor Relations Board (NLRB) recently expanding of the definition of a “joint employer,” 70% of respondents expect a rise in claims over the next year based on actions of subcontractors, staffing agencies and franchisees. Approximately half of respondents predicted higher costs (53%) and increased caution in entering into arrangements that might constitute joint employment (49%).
“It is significant and telling that only 2% of respondents said the expanded definition of a joint employer will have no impact on their workplace,” said Michael Lotito, co-chair of Littler’s Workplace Policy Institute. “This finding shows the breadth of the NLRB’s decision, overturning a standard of joint employment that had been in place for decades, which required a relationship that was actual, direct and substantial.”
The Affordable Care Act (ACA), otherwise known as Obamacare:
As was the case in the 2015 survey, 85% of employers said the ACA would have an impact on their workplace in the next 12 months. While two-thirds said they do not expect a repeal of the ACA if a Republican is elected president this fall, respondents saw a greater likelihood of changes to individual provisions with 53% saying a Republican administration could lead to a repeal of or changes to the Cadillac excise tax, while 48% see the likelihood for changes to the play-or-pay mandate.
Yet Littler also discerned it’s not just rules per se that will create legal and regulatory challenges for businesses, including truckers. Here’s what they mean by that:
The rise of “social issues” and discrimination claims in the workplace:
Employers have always had to keep an eye on demographic and social trends, but as information spreads more rapidly and as office culture shifts to accommodate a new generation, today’s companies are increasingly experiencing the incursion of social issues into the workplace – with discrimination lawsuits one result of such “incursion.”
In the largest year-over-year change in Littler’s survey results, 74% of respondents expect more discrimination claims over the next year related to the rights of LGBT [Lesbian, Gay, Bisexual, Transgendered] workers, up from 31% in 2015, and 61% expect more claims based on equal pay, up from 34% last year.
This change is driven by LGBT discrimination and equal pay ranking among the top enforcement priorities for the Equal Employment Opportunity Commission (EEOC), but it also mirrors key focus areas for the Obama administration, government efforts at the state and federal levels, and increased public awareness.
“The EEOC has sent a clear signal that it will continue to prioritize rooting out discrimination based on sexual orientation and equal pay, so employers’ instincts that claims in this area will likely rise are right on the mark,” noted Barry Hartstein, co-chair of Littler’s EEO & Diversity practice. “As LGBT rights and the gender pay gap continue to be in the headlines and topics of discussion among the general public, employers can expect to face increased pressure to address these issues in the workplace.”
The “gig economy” fallout:
The changing nature of work and the rise of the so-called “gig economy” are giving companies more hiring options than ever, including independent contractors, contingent workers and an online workforce.
While this shift has created greater flexibility for workers and increased efficiency for employers, it has also given rise to more independent contractor misclassification lawsuits and regulatory investigations.
Despite the legal challenges, more than half of respondents at large-cap organizations either said they were not reluctant to hire more freelancers or contractors (24%) or they were neutral on the matter (35%).
Taking steps to prevent workplace violence:
Companies are taking a range of actions – many of them aggressive – to improve employee safety, including updating or implementing a zero-tolerance workplace policy (52%), conducting pre-employment screenings (40%) and holding training programs (38%). Only 11% of respondents said they had not taken any action because “workplace violence” is not a concern for their company.
“Putting policies in place to increase awareness of workplace violence and ensure that employees understand how to report threats in the workplace are steps that all employers would be advised to take,” noted Terri Solomon, a Littler shareholder with extensive experience counseling employers on workplace violence prevention. “Unfortunately, even though workplace violence – and particularly active shooter instances – is statistically rare, no employer is truly immune, so taking preventative action can help save lives.”
Just some of things outside the direct trucking rule docket motor carriers might want to think about.