Opinion: Minimum wage, joint employer lead law changes in early ’24

Last edited 3:51 p.m., Feb. 15, 2024 [Editor's note: The section on antisemitism has been updated for clarity.]

Laws and rules for businesses at a state and federal level are changing once again regarding Missouri minimum wage and joint-employer status determination. In addition, federal agencies are clarifying and reemphasizing existing discrimination and harassment laws following a rise in antisemitism and increased reverse discrimination lawsuits and complaints to federal agencies from diversity, equity and inclusion initiatives and programs.

Missouri minimum wage
Effective Jan. 1, the minimum wage is $12.30 an hour. Tipped employees must receive at least 50% of the minimum wage, plus any amount needed so the total compensation is at least $12.30 per hour. Retail and service businesses with gross annual sales below $500,000 are not mandated to pay the minimum wage. Companies will find a few more exceptions on the Missouri Department of Labor website.

Joint employer
The National Labor Relations Board issued a final rule about the determination of joint-employer status. If an enterprise is a joint employer, one organization may be liable for violations committed by the other. Contractors/subcontractors, franchisors/franchisees and staffing agencies and their clients include those typically affected.

As of Dec. 26, 2023, a joint-employer status may exist if the entities share or mutually determine one of seven essential terms and conditions of employment for an individual. The seven areas are the assignment of job duties; hours of work and scheduling; wages, benefits and other compensation; the supervision of the performance of tasks; tenure of employment, including selection and termination; working conditions pertaining to safety and health; and work rules and instructions directing the manner, means and methods regarding the job duty performance and the grounds for discipline. These elements will not be the final determination of joint-employer status, as the NLRB will perform a fact-specific review of each case. Corporations potentially affected by the final rule should evaluate contractual terms and conduct a risk analysis concerning the seven terms and conditions.

Antisemitism
Antisemitism has been on the rise in the United States in the last few years. And since the Oct. 7, 2023, attack on Israel and the start of the war with Palestinian Hamas, we are seeing increasing violence and protests primarily in major cities and universities in our country flashing across our TV screens and smart devices. As a nation with laws and executive orders, all Americans, including our Jewish population, are protected by those laws and orders. In America, it is still illegal to discriminate, harass or retaliate against people due to any religion or national origin status, regardless of what may be happening overseas.

In response, the Biden administration released a fact sheet on countering antisemitism, Islamophobia and related forms of discrimination in federally funded programs and activities. For private businesses, Title VII of the Civil Rights Act forbids discrimination, harassment and retaliation based upon a team member’s religion or national origin. The Equal Employment Opportunity Commission makes it clear that companies may not consider Judaism and other religions in employment-related decisions. Reasonable accommodation for religious beliefs and practices must be provided. Appropriate disciplinary actions should be performed if an employee engages in antisemitism and other forms of harassment or discrimination based upon religion or national origin.

Diversity, equity and inclusion
The chair of the EEOC recently spoke at an employment compliance conference and discussed the mounting scrutiny and challenges to DEI programs following the Supreme Court ruling that banned race-based admissions in higher education. The chair noted that DEI programs are being contested in federal and state courts through reverse discrimination claims under Title VII of the Civil Rights Act, as well as through discrimination complaints filed with the Office of Federal Contract Compliance.

Attorneys recommend conducting an audit and risk assessment of DEI programs to ensure compliance with employment laws. Labor statutes forbid using a worker’s race, color, religion, national origin and any other protected class status when making employment decisions, including hiring, promotion, training, pay and termination.

The Supreme Court decision will not impact enterprises required to maintain an affirmative action program. For an organization with a voluntary AAP, or desiring to have one, seek legal counsel for a review of current law, case law and federal and state agency guidelines for each aspect of the voluntary AAP. For example, the EEOC guidelines list three circumstances in which a corporation might have a voluntary AAP. First, if an analysis shows actual or potential adverse impact caused by existing or contemplated practices. Second, to correct the effects of prior discriminatory practices by the business. Third, if there is a limited labor pool. The company must prove an underrepresentation in the workforce based on race or sex compared with the demographics of the qualified available workforce in the relevant job market. The voluntary AAP must try to resolve the issue by broader outreach, recruitment and training of the underrepresented demographic.

Lynne Haggerman holds a master of science in industrial organizational psychology and is president/owner of Lynne Haggerman & Associates LLC, specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.