LITTLER MENDELSON EXECUTIVE EMPLOYER SURVEY REPORTJULY 2015
LITTLER MENDELSON EXECUTIVE EMPLOYER SURVEY REPORT
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JULY 2015
Disclaimer: survey questions and resulting findings do not represent any specific political affiliation
or preferences of littler, nor do they constitute any legal, economic or political advice.
ExEcutivE Summary
The 2015 Executive Employer Survey Report revealed that as employers negotiate changing regulations and
economic conditions, they are most concerned with some of the moves regulatory agencies are making that
may affect how they can hire, compensate and maintain relations with their workers. These concerns have
been amplified as employers worry less about macroeconomic impacts on their businesses, as the economy
continues to improve and as we grow further away from 2009’s economic low points. There are a number of
agency actions and regulatory review processes that respondents feel could impact their businesses.
Specifically:
• More than half of the respondents (57 percent) said they expected to see an increase in the
number of workplace discrimination claims during the next year that relate to employers’ own
hiring barriers, including the consideration of criminal or credit history in the hiring process. Of the
other Equal Employment Opportunity Commission (EEOC) enforcement initiatives that concerned
respondents, claims made over equal pay (34 percent) and accommodation for disabled workers
(37 percent) were next in line.
• Possible changes to the definition of “joint employer” ranked high as a concern for employers.
Most respondents (69 percent) were concerned about exposure to greater legal liability if the
National Labor Relations Board (NLRB) broadens the definition, which would make companies
liable for the working conditions and labor violations associated with hired subcontractors. Also,
59 percent of respondents were concerned about the difficulties of monitoring the employment
practices of separate entities.
This report summarizes and analyzes the results of Littler Mendelson’s fourth annual Executive Employer Survey. It examines what impacts the workplace most through the eyes of in-house counsel, human resources professionals and C-suite executives from companies of all industries. The results explore top-of-mind issues, including overtime pay reform, workplace inclusion, healthcare and increased enforcement efforts from government agencies.
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• On June 30, 2015, President Obama and Secretary of Labor Perez released a Notice of Proposed
Rulemaking (NPRM), seeking public comments on proposed changes to the “white collar” overtime
exemption regulations. The notable revisions include an increase to the minimum salary required
for exemption (raised to an estimated $50,440 annually by the time a final rule is issued in 2016),
an increase to the total annual compensation requirement needed to exempt highly compensated
employees (HCEs) (raised to $122,148 annually) and a goal to establish a mechanism for automatically
updating the salary levels annually. The proposal did not specifically address duties tests, but sought
comment on possible changes to the tests.
• The uncertainty of these changes caused concerns over added costs associated with possibly
changing government regulations governing exemptions. In response, more than one third (37 percent) said they were concerned with the potential elimination of the executive, administrative
and professional exemptions for workers who spend more than 50 percent of their work time
engaged in non-exempt duties and 29 percent noted concern with the elimination of the executive
exemption for supervisors who perform some non-exempt duties, such as stocking shelves and
working the cash register.
Other issues concerning government regulation have ebbed in importance for respondents during the last
three years, particularly in the realm of healthcare. Concerns in this area have diminished since 2012, when the
Affordable Care Act (ACA) was newer and employers were less sure of how it would affect their benefit plans
and other operations.
Specifically:
• Three years ago, a robust 64 percent of our respondents said they were significantly concerned
about regulatory issues surrounding healthcare affecting their business, compared with only 33 percent in 2015.
• Employers were watching challenges to the ACA, including King v. Burwell, a case that challenged the
legality of subsidies on federal insurance exchanges. The case could have unraveled health insurance
for millions of people who obtained coverage through federal exchanges. However, the Supreme Court
upheld the ACA in a 6-3 decision issued on June 25 2015. Before the opinion’s release, 21 percent of
respondents said their major issue in implementing healthcare wellness programs was the uncertainty
surrounding ACA.
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• Maneuvering within the regulations of the ACA and other healthcare laws continues to be a point of
concern for respondents, as 55 percent hired employee benefits attorneys or consultants to help
navigate and track compliance.
After reaching 10 percent in late 2009, the national unemployment rate began a long, steady drop to its
current level of 5.3 percent. This same transition can be seen in the survey’s responses over the last four years.
The effects of an improving job market have clearly influenced respondents’ answers to questions concerning
hiring, advancement and job placement.
Specifically:
• Positive sentiment for aggressively hiring new employees was shared by 17 percent of respondents,
matching 2012’s high, and a marked increase over last year’s 12 percent.
• Fewer employers are feeling they need to approach hiring with caution, a healthy sign for the overall
employment ecosystem. This was the third consecutive year of declining numbers in this part of our
survey. The numbers: 39 percent of 2015 respondents said they would cautiously hire new full-time
employees, compared with 41 percent in 2014, 47 percent in 2013, and 54 percent in 2012.
• Another sign that the job market may be approaching a healthy equilibrium is that only 31 percent of
respondents had concerns about workers being underemployed due to a dearth of higher-level jobs.
That’s compared with higher numbers in each of the three previous surveys conducted: 67 percent in
2012 and 44 percent in 2013 and 2014.
• Upbeat hiring sentiment also manifested as respondents exhibiting a sharp decrease in concerns over
unhappy workers staying at jobs because of the inability to find work elsewhere. Only 43 percent had
these concerns in 2015, compared with 66 percent in 2014, 79 percent in 2013 and 85 percent in 2012.
Social issues continue to affect the workplace, demanding that employers cope with changing laws and
evolving values within society. Some of these issues involve new laws, such as those surrounding marriage.
Also of note is an increased focus on bullying issues within the workplace.
Specifically:
• Respondents showed that their companies have adapted well to the rights of LGBT employees as
protected by law. Forty-seven percent said their companies had instituted no new changes to germane
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policies in the space during 2015 because they already had policies that expressly addressed issues
faced by LGBT employees. Only 6 percent of respondents said they were waiting on the Supreme Court
decision on same-sex marriage before making additional changes. On June 26, 2015, the Supreme Court
handed down its 5-4 decision in Obergefell v. Hodges, making same-sex marriage legal throughout the
United States.
• Half (50 percent) of respondents said their companies had introduced language in a company policy or
code that set an expectation of a hospitable workplace free of bullying. And 37 percent of respondents
said they had communicated to employees that bullying is not acceptable.
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rEGuLatiON
Question:
How much impact do you expect the following regulatory issues to have on your workplace over the next 12 months?
Significant impactModerate impactNo impact
2015
2014
2013
*DOL enforcement of fe
deral
employment la
ws
Immigratio
n reform
Rules protectin
g whistleblowers
from retaliatio
n
NLRB enforcement
Enforcement of EEOC/
anti-disc
riminatio
n laws
Healthcare reform
2012
* This answer choice was not provided prior to the 2015 survey.
2%
33%
64%
64%
21%
14%
45%
41%
13%
58%
17%
24%
53%
22%
25%
6%
37%
57%
19%
61%
21%
37%
41%
22%
40%
50%
9%
32%
47%
20%
12%
47%
41%
23%
62%
15%
42%
37%
21%
56%
40%
4%
53%
39%
9%
21%
62%
18%33%
52%
14%26%
54%
20%
41%
42%
17%
56%
37%
7%
58%
33%
9%
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As we put more time between the 2008 economic meltdown and today, employers are gaining confidence
on how to best negotiate new whistleblowing rules. This is evidenced by a relative decline in respondents
who expect rules protecting whistleblowers to make a significant impact in the next 12 months. In 2012,
17 percent of respondents expected this, followed by 9 percent in 2013, 4 percent in 2014 and a slight bump
to 7 percent in 2015—the last year perhaps affected by some large rewards that the government has recently
bestowed on whistleblowers.
Concerns over compliance with EEOC and discrimination laws have remained relatively steady during the
four years of the survey, with a low of 15 percent of respondents expecting them to make a significant
impact in 2014. That rose to 20 percent in 2015, close to the 21 percent registered in 2012 and 2013.
The combination of a crashing economy and a long, delayed recovery has activated regulators on several
fronts during the last several years. Also playing a role was the widely held perception that middle-class
jobs were being squeezed out of the economy; politicians holding this viewpoint have helped put upward
pressure on minimum wages and, more important for our respondents, have led the Department of
Labor (DOL) to more aggressively scrutinize possible transgressors of employment laws. As the economy
continues to recover, employers have grown less concerned with enforcement actions from the NLRB
in this space. In 2015, only 17 percent of respondents said NLRB enforcement was a significant concern,
compared with 41 percent in 2012.
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Question:
The Department of Labor is likely to modify the regulations interpreting the white-collar exemptions to the Fair Labor Standards Act in the following ways. Please indicate which possible revision would cause your organization the most concern in terms of increasing potential overtime costs. (Select one.)
Revising th
e outside sa
les exemptio
n to require
that se
llers
spend more than 50% of ti
me engaged away from th
eir
employer's place or p
laces of b
usiness
Eliminatin
g the executive
, administrative
and professional
exemptions fo
r those workers w
ho spend more th
an 50%
of their w
ork time engaged in non-exempt d
uties
Eliminatin
g the executive
exemption for w
orking supervis
ors
who engage in some non-exempt d
uties d
uring th
e course
of their d
ay, such as w
orking a cash register, s
tocking
shelves, o
r answ
ering custo
mer questio
ns
Raising th
e minimum sa
lary basis
for executive,
administrative
and professionally
exempt employees
from $23,600 to
over $40,000 per ye
ar
25%
7%
29%
37%
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Respondents expressed concern with regard to three potential changes in the DOL’s proposal to revise white-
collar overtime exemption regulations and make more workers eligible for overtime pay. The DOL addressed
the minimum salary required for exemption, the total compensation requirement needed to exempt HCEs and
the goal to establish a mechanism for automatically updating the salary levels annually. The Department is not
proposing specific changes to the duties tests at this time but did request comments on duties testing and the
aforementioned changes.
Of greatest concern to respondents were possible changes to the duties requirements for overtime exemptions.
Thirty-seven percent of respondents indicated that the potential elimination of the executive, administrative
and professional exemptions for workers who spend more than 50 percent of their work time engaged in
non-exempt duties was their primary concern. This was closely followed by the elimination of the executive
exemption for supervisors who perform some non-exempt duties (29 percent), such as stocking shelves and
working the cash register.
The government’s primary goal is to increase the number of employees eligible for overtime pay. Through
this proposal the DOL is estimating an impact up to 5 million workers. This comes at a cost to employers with
the NPRM stating that the proposed increases to the salary levels will result in the transfer of income from
employers to employees of between $1.1 and $1.2 billion per year. Interestingly, when surveyed, respondents
highlighted this salary hike as a part of their overtime rules worry: 25 percent of respondents indicate that their
primary concern with regard to increased costs stem from a rise in the minimum salary level.
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Not applicable because my c
ompany:
does not engage in fra
nchising; does n
ot
have a supply c
hain; is not p
art of a dealer
network; and does not u
se contractors f
or
staffing, se
curity, ja
nitoria
l servie
s, etc.
Difficulty
of monito
ring th
e employment
practices of se
parate entities
Exposure to greater le
gal liabilit
y
Increased costs
Question:
If the National Labor Relations Board rules to broaden the definition of a “joint employer” (making companies potentially liable for working conditions and labor violations of their subcontractors, staffing agencies or franchisees), which of the following would be a concern of your organization? (Check all that apply.)
34%
14%
69%
59%
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The potential implications of an expanded definition of “joint employer” continues to be top of mind as
the NLRB deliberates on its final ruling. Generally, businesses were considered to be joint employers only
when they shared direct and immediate control over the essential terms and conditions of employment,
including hiring, firing, discipline, supervision and direction. Only those entities involved with an
employee’s day-to-day working conditions, and, therefore, in a position to alter those conditions, were
thought to be responsible for National Labor Relations Act violations.
NLRB General Counsel Richard Griffin is advocating for a significantly looser definition and a more
“traditional” concept of a “joint employer,” leaving employers concerned with the potential sweeping
impact of this decision. Fifty-nine percent of respondents expressed unease when assessing the difficulty
of monitoring separate entities, and 34 percent felt increased costs would be a primary concern as well.
Overall, employers noted a high level of concern with this issue. Well over half of the respondents felt
exposure to greater legal liability (69 percent) would be of concern with a broadened definition.
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Question:
In response to the challenges to the Affordable Care Act and uncertainty surrounding its implementation, which of the following actions has your organization taken or do you plan to take? (Check all that apply.)
None, we are sta
ying the course
Take a "wait and se
e" approach
Delay planning in so
me areas in th
e event
that furth
er concessions a
re granted
Engage employee benefits atto
rneys or
consultants t
o help navigate upcoming
regulations a
nd track areas w
here
there are likely t
o be changes
20152014
58%
39%
13% 14%
55%
33%
9%
18%
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The ACA continues to be a focus for employers. There was little change—58 percent in 2014 to 55 percent in 2015—in the responses regarding companies that have engaged with attorneys or consultants
to navigate the new healthcare regulations. A slightly smaller percentage of respondents, 33 percent versus 2014’s 39 percent, said their companies were staying the course on such matters, while a rising
percentage of respondents, from 14 percent to 18 percent, said they had adopted a “wait and see”
approach.
This outlook is likely influenced by King v. Burwell, a case challenging the legality of subsidies on federal
insurance exchanges. The Supreme Court preserved the ACA in June 2015. The 6-3 ruling was a victory for
President Obama’s administration, saving his signature domestic policy from fundamental disruption.
For employers already in compliance, the decision won’t have much of an effect. However, employers who
were waiting on this outcome to take action must turn their focus back on their policies, as the decision will
likely slow momentum for future wholesale changes to the ACA.
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Question:
Which of the following issues are of concern to your organization in implementing or administering an employee wellness program? (Check all that apply.)
The potential fo
r lawsuits
from employees w
ho claim
discrim
ination or w
rongful discharge due to
informatio
n
uncovered through the wellness
program
Lack of guidance or negative
guidance from th
e EEOC
on what constitutes a
"voluntary" program and
how not to ru
n afoul of equal employment la
ws
Maintaining privacy o
f employee data
Legal uncertainty o
ver how to
administer p
lans (i.e., w
hether
employees can be incentivi
zed to partic
ipate, whether
spouses can partic
ipate, etc.)
None of the above
Uncertainty o
ver the future of th
e Affordable Care Act
39%
25%24%
41%
21%
28%
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The unknown outcome of King v. Burwell case in part helps explain why 21 percent of respondents said their
major healthcare concern when administering wellness plans was uncertainty over the future of the ACA.
There still exists a great deal of confusion on the law and how it affects the operation of company
wellness plans. Illustrating this, 41 percent of respondents expressed concern about lack of guidance or
negative guidance from the EEOC on what constitutes a “voluntary program” and how not to run afoul of
equal employment laws.
Some wellness programs that offer large incentives to participating employees for hitting particular health
benchmarks have come under fire from the EEOC for, in its view, violating the Americans with Disabilities
Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). A Senate bill was introduced
earlier this year to define exactly what would be permissible under law, but it has yet to pass. Amid this
uncertainty, 39 percent of respondents had concerns over how to administer plans and how employees
can be legally incentivized to participate.
Wellness programs raise major concerns for many respondents in the realm of data privacy: 24 percent expressed this as a major concern, and 25 percent were concerned about potential legal action from employees
claiming discrimination or wrongful discharge due to information uncovered through the wellness program.
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None of the above
Compliance programs generally
will be less
effective
because individuals i
n those departm
ents
will report t
o government agencies ra
ther than
focusing on fulfil
ling their o
wn job responsibilit
ies
Executives w
ill be hesita
nt to come to
the compliance
department fo
r fear in
formatio
n will be reporte
d to
the government
Compliance officers w
ill leverage th
eir
insider knowledge to
secure bountie
s
Question:
Given that the Securities and Exchange Commission (SEC) has issued two whistleblowing awards to compliance officers and has publicly encouraged such individuals to report misconduct to the government, which of the following are of concern to your organization with regard to compliance officers blowing the whistle? (Check all that apply.)
This question was only posed to respondents with mid cap and large cap organizations.
16%
30%
22% 22%
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As the SEC continues to pursue a variety of avenues to increase the quality and quantity of tips from
whistleblowers, respondents expressed a fair amount of concern with the agency’s focus on urging
compliance officers to report misconduct to the government. SEC officials have publicly encouraged
compliance professionals to report potential wrongdoing. In August 2014, Sean McKessy, chief of the
SEC’s Office of the Whistleblower, stated that these individuals are “often are privy to the very kinds of
specific, timely, and credible information that can prevent an imminent fraud or stop an ongoing one.”
Nearly a quarter of respondents (22 percent) indicated that such a focus will likely deter executives
from expressing concerns to the compliance department for fear that information could be reported
to the government. The same percentage (22 percent) expressed concern that it will undermine the
effectiveness of the compliance department if individuals are focused on reporting to government
agencies to collect bounties rather than fulfilling their job responsibilities.
Compliance officers are expected to be the eyes and ears of their companies, focused on identifying
misconduct or fraud while ensuring high ethical standards and compliance with applicable laws and
regulations. The nature of their responsibilities is that they often come with close knowledge of the
inner workings of a company, and 16 percent of respondents expressed concern that the SEC’s focus
on compliance officers as whistleblowers would incentivize these individuals to leverage their access to
sensitive information to secure bounties.
The inherent clash between the compliance officer’s role (to protect companies from compliance lapses)
and the increasing incentives to report misconduct to receive significant monetary awards should cause
more alarm and create more urgency among employers to review their existing compliance programs.
When finalized, the Occupational Safety and Health Administration’s (OSHA) Best Practices for Protecting Whistleblowers and Preventing and Addressing Retaliation will provide employers guidance on how
to encourage whistleblowers to report within the company first. We expect that this guidance will be
forthcoming in fall 2015.
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Hiring barrie
rs, including consid
eration of
criminal or credit h
istory i
n the hirin
g process
Retaliation against e
mployees who
have filed disc
riminatio
n claims
Accommodations fo
r pregnant w
orkers
Accommodations fo
r disa
bled workers
Accommodations to
avoid religious disc
riminatio
n
Rights of LGBT w
orkers
Age discrim
ination claim
s
Equal pay claims
Discrim
ination ste
mming from wellness
programs
Broad based syste
mic investigatio
ns
and related litigatio
n
EEOC challenges to se
ttlement a
greements
and arbitratio
n programs
Question:
Of the following areas where the Equal Employment Opportunity Commission is focusing its enforcement efforts, which do you feel are likely to see a rise in workplace discrimination claims over the next year? (Check all that apply.)
57%
33%30%
37%
20%
31% 32% 34%
17%
28% 27%
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Interestingly, the number of completed systemic investigations by the EEOC fell from 300 in 2013 to 260
in 2014. But companies still harbor great concern about discrimination claims and the focus of EEOC
enforcement efforts. Survey respondents worried most about claims over the accommodation of disabled
workers (37 percent) and claims regarding equal-pay issues (34 percent).
Last December, David Lopez was reapproved as EEOC general counsel and Charlotte Burrows was
approved as commissioner, giving Democrats a 3-2 majority on the Commission. In the future, consistent
with the EEOC’s Strategic Enforcement Plan issued in December 2012, the EEOC plans to continue
to focus on systemic cases—many of which fall into areas of high concern for respondents, such as
accommodations for the disabled and the consideration of criminal or credit histories in the hiring process.
In Littler’s Annual Report on EEOC Developments (Fiscal Year 2014), the firm highlighted a series of
issues plaguing employers when it comes to EEOC enforcement, many of which were expressed as
concerns by the respondents, as well as areas where employers can feel a bit of relief. For instance,
along with the EEOC’s decrease in completed investigations, the Commission recovered only $13 million
in monetary relief through settlements in 2014 versus $40 million in 2013. This decrease came despite an
overall uptick in the number of settlements: 78, versus 63 in 2013.
Even so, some of the highest settlements we’ve seen have occurred recently for both employers and unions.
In April 2015, Patterson-UTI, a drilling company facing charges of race and national-origin bias, agreed to
pay a $14.5 million settlement, and the Sheet Metal Union agreed to pay $12 million in a race-bias lawsuit,
demonstrating vulnerability in the construction industry.
Fifty-seven percent of respondents felt that there would be a rise in discrimination claims related to hiring
barriers in 2015, including consideration of criminal or credit history in the hiring process, which could largely
be tied to the rise in ban-the-box legislation at the state and local level.
Beside the aforementioned concerns, respondents felt increases would come from claims regarding
retaliation (33 percent), age discrimination (32 percent) and the rights of LGBT workers (31 percent).
Employers are also watching cases around the U.S. that consider accommodations in the workplace
relating to religion. A full 20 percent of respondents expected an increase in claims related to
accommodations to avoid religious discrimination. Further, based on the Supreme Court’s decision in
EEOC v. Abercrombie, issued on June 1, 2015, employers can expect an increased sensitivity to religious-
accommodation issues by applicants and employees.
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The backdrop for all of these survey findings include the recent Supreme Court ruling in Mach Mining v. EEOC,
which addressed the EEOC’s approach to conciliation in resolution of discrimination charges following a
reasonable cause finding. The EEOC has been given far greater latitude in its approach to conciliation by the
courts, which means there is potential for increased settlement demands by the EEOC in the conciliation
process. Also, on May 27, 2015, the DOL issued new guidance on how contracting agencies should evaluate
labor violations when hiring federal contractors, and potential reasonable cause findings and/or litigation by
the EEOC may create significant risks to federal contractors.
Experts expect an increase in reasonable cause determinations in 2015, which goes hand-in-hand with the
concern surrounding systemic investigations. Reasonable cause findings typically come with less than 5
percent of charges investigated by the EEOC, but last year alone they were issued in 45 percent of systemic
investigations, versus 35 percent in 2013.
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None of the above
An increase in lawsuits or claim
s
from dise
nchanted employees
Employees are being asked
to do more with less
Unhappy workers a
re remaining in current
jobs due to
an inability to
find
employment else
where
Workers are underemployed due to
an
inability to
secure higher-le
vel jobs
20132012 2014 2015
JObS aNd thE EcONOmy
Question:
In which of the following areas do you feel current economic conditions are continuing to affect the workforce? (Check all that apply)
67%
85%91%
36%44%
79%85%
23%
44%
66%
84%
48%
77%
35%31%
43%
1% 1% 2% 4%
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Employers saw a significant drop in unhappy workers remaining in current jobs due to the inability to
find other work (from 85 percent in 2012 to 79 percent in 2013 to 66 percent in 2014 to 43 percent in
2015), which not only signals a stronger economy, but is a point for employers to continue to monitor: as
employees continue to have more options, employers will likely have to work harder to recruit and retain
top talent. Furthermore, there was a decrease in the number of respondents who reported an increase in
lawsuits or claims from disenchanted employees (from 48 percent in 2014 to 35 percent in 2015). In yet
another sign of economic turnaround, employers also saw a decrease in employees being asked to do
more with less (from 91 percent in 2012 to 77 percent in 2015).
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Lay off f
ull-tim
e employees
Outsource job functio
ns to th
ird-party
companies or consulta
nts
Increase the use of contin
gent workers,
such as
independent contractors a
nd freelancers
Agressively h
ire new full-t
ime employees
Cautiously
hire new full-t
ime employees
20132012 2014 2015
Make no change to curre
nt workforce
54%
17%
2%
39%
47%
13%
2%
17%
41%
12%
4% 4%3%6%
8% 7% 8%10% 10% 9%
13%
22%26% 25%
Question:
In the next 12 months, does your company plan to:
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For the first time since 2012, an increased number of respondents indicated that they were planning to
aggressively hire new full-time employees (from 13 percent in 2013 to 12 percent in 2014 to 17 percent in
2015), which is likely a sign of a strengthening economy. There was also a minor decline in respondents
looking to make no changes to the current workforce (from 26 percent in 2014 to 25 percent in 2015).
As was the case last year, a majority of respondents are still planning on hiring, either cautiously or
aggressively, over the next year (from 53 percent in 2014 to 56 percent in 2015).
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No, but we intend to
do so in th
e next year
No, because my company a
lready h
ad policies that
expressly a
ddress iss
ues faced by L
GBT employees
Yes, but w
e are awaiting th
e outcome of the Supreme Court
decision on sa
me-sex m
arriage before making additio
nal changes
Yes, we have made changes to
our policies e
ven though
we were not require
d to by la
w
Yes, we have made changes in
response to changes in
the law
WOrkfOrcE maNaGEmENt
Question:
With increased attention on the rights of LGBT employees, has your company instituted changes to make your workplace more inclusive? (Select one.)
15%13%
11%
47%
6%
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LGBT rights have received a great deal of attention in the courts in the past couple years, with high-profile
Supreme Court cases including 2013’s United States v. Windsor, the decision that overturned part of the
Defense of Marriage Act (DOMA), and this year’s Obergefell v. Hodges, in which the court addressed the
constitutionality of same-sex marriage bans in the U.S. Though the Supreme Court ruling made same-sex
marriage legal, it seems employers have already taken steps to make their workplaces more inclusive.
Nearly 50 percent of the respondents indicated they had not instituted changes to make their workplaces
more inclusive because their companies already had inclusive policies in place. This response is consistent with
recent surveys showing that 89 percent of Fortune 500 companies prohibit discrimination based on sexual
orientation and 66 percent prohibit discrimination based on gender identity or expression.
Fifteen percent of respondents also indicated they had made changes, but not because they were required
by law. A majority of respondents had some LGBT-inclusive policies already in place (47 percent), had made
recent changes (26 percent), or were looking to make changes to their policies in the near future (13 percent).
With same-sex marriage legalized, employers will want to review their policies and benefits plans to make
sure they are treating all married couples equally and are using gender-neutral language. They should pay
close attention to leave policies, health benefit plans, retirement plans and other benefits offered to spouses of
employees. If they have not already done so, employers may want to consider revising their non-discrimination
policies to include sexual orientation and gender identity or expression. Employers may also want to revisit
prior practices involving benefits for domestic partnerships. Now that all couples can marry, unless such
coverage is required by law, some employers may choose to eliminate domestic partner coverage, with its
inherent tax and payroll difficulties.
LITTLER MENDELSON EXECUTIVE EMPLOYER SURVEY REPORT
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JULY 2015
None of the above
Introduced language in a company p
olicy or code th
at
sets a
n expectation th
at employees treat each other
with respect a
nd dignity
Provided tra
ining to su
pervisors o
n managing instances
of bullyi
ng
Looked into signs a
nd instances o
f bullyi
ng behavior
Communicated to employees th
at bullyi
ng is not a
cceptable
Introduced a company p
olicy that se
ts a ze
ro-tolerance
standard for w
orkplace bullying
22%20%
37%
28%
50%
23%
Question:
Has your organization taken any of the following actions to combat bullying in the workplace? (Check all that apply.)
LITTLER MENDELSON EXECUTIVE EMPLOYER SURVEY REPORT
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JULY 2015
Workplace bullying remained top of mind for many HR departments. A full 50 percent of survey
respondents reported that their companies had introduced language on the issue within their corporate
literature. Almost as many respondents (37 percent) said that they actively communicated with employees
on the subject, reinforcing that workplace bullying is unacceptable. Of the companies surveyed, 28 percent provided training to supervisors on how to manage instances of bullying.
Workplace bullying has been an active issue for not only HR professionals but also lawmakers. California,
for instance, passed a law in January 2015 requiring businesses to supply an employee-training curriculum
focused on “the prevention of abusive conduct.”
Introducing a zero-tolerance policy in the workplace can be more challenging than simply setting expectations
and putting an emphasis on respect and dignity in employee relationships. But a fifth (20 percent) of the
respondents said their companies had introduced zero-tolerance policies. A similar number (22 percent) reported having investigated instances of bullying behavior.
Work remains in this area across all sectors of the job economy, however. Anti-bullying campaigns haven’t
taken off within all companies: 23 percent of respondents said that none of the aforementioned measures
had been taken at their businesses. Many of these companies could be costing themselves, as the
downsides of bullying in the workplace—lower employee morale and productivity—are well documented.
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JULY 2015
Implementin
g internal social m
edia platform
s and to
ols
Addressing wearable technology in
the workplace
(i.e., h
ealth tra
ckers for w
ellness programs, w
earables
that record audio or vi
deo, etc.)
Leveraging "Big Data" to inform
decision-m
aking
without ru
nning afoul of priva
cy and se
curity laws
Risks a
ssociated with
increased reliance on cloud servic
es
Employees looking to
use more of their p
ersonal devic
es
for busin
ess purposes
16%
2%
9%
51%
Question:
Which of the following technological developments has been the most challenging to manage in your workplace? (Select one.)
18%
LITTLER MENDELSON EXECUTIVE EMPLOYER SURVEY REPORT
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JULY 2015
The most significant concern, by nearly a three-to-one margin, related to employees’ use of their
personal devices for work. In fact, half (51 percent) of those surveyed responded that this was their
biggest challenge in managing workplace technology. This result is not surprising given the numerous
compliance challenges that “bring-your-own-device” (BYOD) programs raise. These include, for example,
protecting confidential business information and sensitive personal information, accessing personal
devices when conducting internal investigations, extending litigation holds to information stored on
personal devices, addressing expense reimbursement issues and avoiding potential liability for off-the-
clock work.
On the other end of the spectrum, only 2 percent of respondents expressed concerns about the use of
wearable technology in the workplace. This low response rate likely reflects the fact that while wearables
are increasingly popular with consumers, they are just now beginning to enter the workplace. We expect
concerns over managing wearable technology to increase as the technology becomes more prevalent in
the workplace.
Implementing internal social media communications tools and the risks associated with increased reliance
on cloud services were effectively tied for second, concerning 18 percent and 16 percent of respondents,
respectively. Both types of technologies can raise significant legal compliance challenges—potential
violations of the National Labor Relations Act for the former, for instance, and compliance with non-U.S.
data-protection laws for the latter. These risks, however, tend to be more focused than those raised by
BYOD programs, likely explaining the significant gap in perception of risk between the top finisher and
those in the second tier.
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JULY 2015
Decided to reclassi
fy individ
uals that could legitim
ately be tre
ated
as independent contra
ctors or o
vertime exempt in
order
to avoid potential la
wsuits or expensiv
e penalties
Engaged counsel to tra
ck changes in federal and sta
te laws
aimed at m
isclassi
fication
Started usin
g online tools t
o ensure compliance with
applicable laws
Conducted audits of in
dependent contractor re
lationships
or to asse
ss exempt classi
fications
None of the above
I do not know
Question:
What measures is your company taking to ensure compliance with applicable laws when engaging independent contractors or classifying employees as exempt from overtime pay? (Check all that apply.)
37%
16%
7%
20%
30%
11%
LITTLER MENDELSON EXECUTIVE EMPLOYER SURVEY REPORT
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JULY 2015
In the last several years, federal and state governments have given extra scrutiny to companies that
employ independent contractors. Using independent contractors saves companies thousands in payroll
and unemployment taxes—but if the classification is made in error, it can bring fines and penalties for
those companies.
Making compliance even more difficult is the fact that the DOL is looking to limit who can be classified as an
overtime exempt employee, raising the current pay floor from $23,360. Some employee advocacy groups
called on the DOL to raise the floor to $69,000, a condition that would have entitled 10.4 million additional
salaried workers in the United States to overtime pay, however in its recently released proposal, the DOL
raised the minimum salary to an estimated $50,440 by 2016, which will impact up to 5 million workers and
cost employers billions.
Many respondents (37 percent) said their companies had conducted audits of contractor relationships
and of employees who were classified as exempt. A fifth (20 percent) of respondents said their
companies had taken action, and reclassified workers who may have been close to the line. Only 16 percent of respondents said they had engaged with counsel to stay on top of changes in federal and
state regulations, and only 7 percent had enlisted the help of online tools in the matter.
Despite increased attention from the government regarding compliance around the classification of
independent contractors and overtime exempt employees, 30 percent of survey respondents said their
companies had taken none of the available measures mentioned in this survey to mitigate compliance
issues in this space.
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JULY 2015
We have expanded our screening program to
increase background
checks on individ
uals other th
an employees, such as c
ontingent
workers and independent contra
ctors
We have increased our use of b
ackground checks due to
technology advances th
at streamline th
e process and th
e
valuable informatio
n provided
We have scaled back our u
se of background checks d
ue to ris
k of
litigatio
n and difficulty
in complying with
regulations a
nd
guidance from th
e federal agencies
We have faced lawsuits over th
e past year re
lated to
background checks in th
e hiring and employm
ent process
None of the above
We have scaled back th
e degree to which we conduct b
ackground
checks on individ
uals other th
an employees, such as c
ontingent
workers and independent contra
ctors
We have removed criminal convic
tion questio
ns from all e
mployment
applications d
ue to guidance fro
m the EEOC and th
e growing
patchwork of ban-th
e-box laws
We have engaged background screening companies to
help
conduct background checks
Question:
In which of the following areas has your company been impacted by the changing landscape for criminal and credit checks of job applicants and/or employees? (Check all that apply.)
5%
30%
8% 7%
41%
6%
1%
28%
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JULY 2015
Despite recent pro-employer developments such as the U.S. Court of Appeals decision in EEOC v. Freeman, nearly a third (30 percent) of respondents have removed criminal conviction questions from
all employment applications. This signifies a growing understanding among the employer community
that reliance on criminal history records in the hiring or employment process continues to present risk,
especially as ban-the-box legislation proliferates across the country and large lawsuits filed by the EEOC
continue to be vigorously litigated.
Simultaneously, employers continue to use background-screening companies to assist with background
checks: 41 percent of respondents said they had engaged with a third-party screener as a result of
the changing landscape, even though class action litigation cases under the Fair Credit Reporting
Act (FCRA) related to gathering criminal history through third parties have surged recently. At least
29 putative class actions claiming statutory damages under FCRA were filed in the first four months
of 2015 alone. This trend will not slow down soon, and may be significantly affected by the Supreme
Court’s decision in Spokeo v. Robins, where the question of whether a person may sue under a statute
and possibly bring a class action even if he or she has not suffered any injury will be answered.
LITTLER MENDELSON EXECUTIVE EMPLOYER SURVEY REPORT
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JULY 2015
Challenges in investig
ating and resolvin
g
employment-re
lated complaints in foreign jurisd
ictions
Challenges and concerns w
ith mandates to
prevent
bribery,
fraud and related iss
ues under th
e Foreign
Corrupt P
ractices Act a
nd similar la
ws
Complying with
differin
g, and sometim
es conflic
ting,
data privacy la
ws in va
rious c
ountries
Hiring and fir
ing employees with
out violatin
g foreign laws
Finding the proper b
alance between local hires a
nd U.S.
expatriates, a
nd establishing appropria
te reporting lin
es
Keeping employees safe while working overse
as
Avoiding potential claim
s of d
iscrim
ination or h
arassment
by U.S. expatria
tes sent to
work overseas
Managing relations w
ith unions a
nd works councils
Drafting and im
plementing appropria
te international
assignment p
olicies and agreements
Complying with
immigratio
n, tax, c
ompensation and
benefits regulatio
ns
Not applicable; m
y organiza
tion does n
ot operate abroad
Question:
Which of the following areas are of concern to your organization in expanding into new global markets or managing employees working abroad? (Check all that apply.)
10%
23%
13%
55%
10% 12%
5%
23% 21%16% 17%
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JULY 2015
As the Web and new trade agreements make it easier to seek out new revenues abroad, more and more
companies are looking to supplement their domestic and organic growth with pushes outside the United
States. Almost half of respondents, 45 percent, worked for companies with operations abroad.
Working outside the country means adhering to different laws, regulations and customs concerning
immigration, taxes, compensation and benefits. These kinds of subjects remained fair concerns for the
respondents with overseas operations (23 percent). Data privacy laws, too, are often different overseas,
especially in the EU, which has led the global discussion on the matter. Operating within the limits of
foreign data-privacy laws was also of concern to 23 percent of respondents.
Staying within the bounds of foreign laws when laying off workers concerned 21 percent of respondents,
with a similar number, 16 percent, of them also concerned about the challenges in investigating and
resolving employment-related complaints overseas. Just as high on the list for respondents was a subject
that often makes the news: challenges and concerns relating to bribery and fraud abroad. Seventeen percent of respondents cited concerns with issues related to the Foreign Corrupt Practices Act and
similar laws.
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JULY 2015
mEthOdOLOGy aNd dEmOGraphicS
In April and May 2015, Littler distributed the Executive Employer Survey via email to in-house counsel, human
resources and C-suite executives primarily throughout the United States and from a wide variety of industries.
The results were tabulated, analyzed and released in July 2015.
Number of respondents:
• 503
Respondents included:
• C-suite executives (5 percent)
• In-house attorneys/corporate counsel (41 percent)
• Human resources professionals (48 percent)
• Other professionals (6 percent)
Companies represented were of a variety of sizes:
• Large cap, greater than $4 billion in market capitalization (23 percent)
• Mid cap, $1 billion to $4 billion in market capitalization (21 percent)
• Small cap, less than $1 billion in market capitalization (56 percent)