01/11/2023

MCACO Legal Update: Business Resolutions for 2023

Legal Speaking 
by Bob Dunlevey 

Taft Law 

YOUR BUSINESS RESOLUTIONS FOR 2023!

It’s not too late to make a few additional New Year’s resolutions. Why not consider these to enhance your business.

Resolve to –

1. Search within the wide range of federal legislation passed in 2022 to see how your business may take advantage of billions of dollars of incentives. Money will be doled out with reckless abandon through the Inflation Reduction Act, the infrastructure law and the CHIPS and Science Act. But to enjoy these benefits, you may be required to modify your business practices. For example, August’s $1.2 trillion Inflation Reduction Act provides $500 billion in new spending and tax breaks to promote “clean energy.” Businesses will be the biggest benefactor receiving approximately $216 billion of tax credits designed to enhance private investment in clean energy, transport and manufacturing. Tax credits abound for such things as EV’s, energy efficient appliances, rooftop solar panels, geo thermal heating and home batteries. But, those businesses seeking these tax incentives must pay workers federal prevailing wage rates and employ a certain number of registered apprentices – a complicated process. See here.
2. Audit your Privacy and Data Security Policies and practices. If you don’t currently have such, stop reading this article and seek help from Taft’s Privacy and Data Security Practice Group. Resolve that you will, at least, take the following actions ASAP before you face a breach causing a major financial loss and/or serious business interruption.

• Get strong! Make a change in password for your accounts, and specifically make them strong passwords (i.e. ten characters or more, including an upper and lowercase letter, number and special character);
• Multiply! Add that second layer of authentication and make sure all your sensitive accounts have multi-factor authentication turned on. This will further deter password thieves from gaining access to your accounts and systems;
• Plan! Have a plan for how you will comply with the numerous privacy laws coming into effect in various states including California, Virginia, Colorado, Utah and Connecticut (yes, they may still apply to your business if it is not located in those states). And, don’t forget to update your standard contractual clauses should your business process personal data from Europe. Planning also means implementing or updating policies, procedures, and contracts to account for privacy and security requirements (both as a matter of law and best practice);
• Lose weight! Delete unneeded data from your system and your hard copy storage in accordance with a record retention policy. The best defense against your data being stolen is not keeping it around unnecessarily.
• Stay informed! Keep up-to-date on both legal issues and best practices in the privacy and security space. Download our PDS mobile app and sign up for Taft's Privacy and Data Security Insights.

3. Evaluate your company’s compensation and benefit structures. Good employees will continue to be hard to hire and tougher to retain especially as the Infrastructure Bill creates hundreds of thousands of jobs needing to be filled and other businesses “pirate” your employees. Competitive pay and benefits will not be enough. 75% of employees are satisfied with their compensation, but 28% of them still plan on looking for another job. 47 million workers voluntarily quit their jobs in 2021 and the trend continues. So, develop a game winning-positive culture at work to make individuals desire to be part of your “team” and contribute meaningfully. Consider relaxed dress codes, creative benefits, retention bonuses, wellness initiatives, mentoring and apprentice programs, and flexible work schedules. Remember 62% of employees would consider a pay cut for a four day week. Resolve to do a wage benefit survey. And, remember that DOL’s 2023 overtime regulation changes will cause you to consider changing pay practices as well. Employers wishing to avoid the payment of overtime probably will have to pay salaried exempt employees at least $913 per week instead of the current $684.
4. Pay better attention to labor and employment law developments at the local, state and federal levels affecting your business. Be sure you are in compliance with all of these new laws in order to avoid liabilities. These laws impact what are probably your greatest annual budget expenditures – wages, benefits and human resources expense, including litigation. For example, does your “no weapons policy” comply with Ohio’s new law or your state’s law? Do your harassment policies related to non-disclosure and non-disparagement comply with the Fed’s new Speak Out Act?
5. If you have a union at your company and your collective bargaining agreement expires in 2023, resolve to take a fresh approach to bargaining by starting now to strategize and prepare. Unless a deep recession hits, the demands of organized labor and the ever increasing likelihood of more strikes and job actions will be difficult to weather – recall the John Deere and Kellogg strikes and the railroad workers’ bargaining dispute requiring Congressional intervention. In 2023, you will not be able to handle your labor relations as in past years. Consider a one-year bargaining agreement even though you dislike frequent collective bargaining. Grant a substantial lump sum bonus in lieu of an hourly wage increase. Consider enhanced communications with your employees now in order to establish a better rapport before a contract dispute arises.
6. Resolve to have your employee handbook and other R. policies and practices audited now. Several recent NLRB decisions have made established handbook provisions and company practices outdated or illegal and the list is growing by the day. For example, the NLRB is attempting to outlaw employer confidentiality requirements when workplace investigations occur, policies prohibiting disparagement of an employer, employer prohibitions on employees sharing their wage and benefit information, and the use of employer technology to record workers’ conversations and track employee movement.

We look forward to helping you keep your New Year’s resolutions throughout 2023.
For additional information, contact Bob Dunlevey, Board Certified Specialist in Labor and Employment Law, at (937) 641-1743 or email rdunlevey@taftlaw.com.