Expecting the Unexpected

April showered us with quite a few unexpected and impactful legal developments in the workplace. Two Federal agencies released proposed rules that potentially impact nearly every American workplace (new salary threshold regulations under the Fair Labor Standards Act from the Department of Labor and an out-of-left field proposed ban on non-compete agreements from a sharply divided Federal Trade Commission). These regulatory developments followed SCOTUS's recent Muldrow decision, which dramatically changed the standard for determining harm under Title VII and potentially providing legal ammunition for DEI challengers making reverse discrimination claims. Workplace managers may feel besieged by these rapid fire and unexpected legal changes which they must understand and implement in their workplaces. 

Rapid legal change has become a fixture in the American workplace and is undoubtedly unsettling for employers who already grapple daily with a complex regulatory environment, shifting workplace demands, and evolving business needs. Like many other employee management issues, it falls to human resources and in-house counsel to help businesses manage unexpected legal changes, the pace of which is becoming increasingly swift.  Those professionals can successfully manage unanticipated workplace developments with the right framework and mind frame. 

The first thing an employer tackling these issues should do is to ensure the right people in the organization are working on the problem. Typically this means human resources personnel or legal, or sometimes a combination of the two. Those individuals, in turn, should open clear and prompt communication lines with business leaders. The designated problem-solvers should gather facts in an informed way. Yes, the internet is a vast and readily accessible source of information, but it is as untrustworthy as it is instantaneous. Managers should lean on their outside trusted sources (who likely are already working the problem), which should give them confidence they are receiving sound advice.  

Planning beats panic when a profound legal change happens unexpectedly (remember the pandemic and its daily dose of regulatory offerings?). Taking stock of the right information, by the right people, for each business, will lead to good decision making in conjunction with corporate leaders, who should understand the scope of the issue and the specific steps to address it (including budget impacts in the case of the increased DOL salary thresholds).

Having the right people, trusted advisors, a plan, and clear communication are all basic and somewhat obvious functions. But resilience is the true secret ingredient to managing unexpected legal change. The definition of “resilience” is the capacity to withstand or recover from difficulties - the practice of elasticity that allows a person (or institution) to flexibly adapt. An institution builds resilience in part through how its management reacts to change. Rapid legal change creates real challenges for workplaces, but the most successful among them in meeting those challenges are those that display resilience - think of it as corporate composure. And like most things in the workplace (and in life), how someone reacts to a situation (calm determination, with a plan and a process that incorporates sound advice) can be very model of resilience. 

Unexpected change is a daily feature of today's workplace. But resilient organizations will accept those changes with composure and – expected or not – will gracefully pivot policy with poise.