Thursday, January 3, 2013

Time to Make Your 2013 Employment Law Resolutions

As we welcome 2013, it’s time to focus on New Year’s resolutions. With President Obama’s re-election and governmental agencies announcing increased enforcement efforts in the employment area, 2013 is likely to be an active year for employers. Now is a good time to focus on what the year may bring and to position your company to minimize employment law risks. A few resolutions that should make your priority list include:
1. Update Your Employee Handbook: 2012 brought a number of legal changes, including an aggressive focus by the National Labor Relations Board (“NLRB”) on the enforcement of both unionized and non-unionized employees’ right to engage in concerted activity for their mutual aid and protection under federal labor law. The NLRB’s focus included challenges to social media policies and at-will language in employee handbooks. Employers should review their handbooks and revise any policies that might chill employees’ rights to communicate or work together for their mutual aid and protection. Other key legal developments that could require policy changes include the Equal Employment Opportunity Commission’s (“EEOC”) recognition of discrimination protections for transgender individuals, the EEOC’s focus on discrimination in connection with credit or criminal background checks, a new government focus on the scope of confidentiality requirements during workplace investigations, and the passage of state laws permitting same-sex marriage and legalizing marijuana in some states.

2. Adopt or Update a Technology and Social Media Policy:  This is a resolution I recommended for 2012, but, if you’re anything like me, you may not have stuck by your 2012 resolutions. Even if you did, 2012 brought continued legal developments related to social media and technology in the workplace that may require you to revise your policies. Among other things, the NLRB General Counsel’s office issued written guidance on the types of social medial policies that comply with unionized and non-unionized employees’ rights to engage in concerted activity under federal labor law and the types of policy provisions that violate those rights.

3. Review Your Technology-Related Practices:  In addition to having an up-to-date technology and social media policy, it is important to review your practices related to employees’ use of technology in light of a variety of legal risks. Issues to consider include whether your practices comply with wage and hour, privacy, discrimination, retaliation, and electronic communication laws, and whether you are taking appropriate steps to safeguard and preserve electronic data.

4. Review Your Applicant Screening and Background Check Practices:  As mentioned in a number of our posts this year, the EEOC has increased its enforcement focus on discrimination in the hiring process and in connection with credit and criminal history checks. In 2012, the EEOC also issued written guidance on the legal standards that must be satisfied for criminal background checks to be lawful under discrimination law. If your company conducts credit or criminal history checks on applicants or employees, you should work with counsel to review your screening practices, background check forms, and decision-making processes to ensure legal compliance.

5. Review your Worker Classifications:  As in past years, the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) are continuing their increased joint enforcement focus on the misclassification of employees as independent contractors. The State of Minnesota has an agreement with the DOL to cooperate in identifying and correcting worker misclassifications, and this continues to be a hot area for litigation by plaintiffs’ counsel. If you haven’t done a recent review of your worker classifications, you should make this a priority in 2013.

6. Review your Pay Equity:  The EEOC’s 2013 enforcement agenda includes a focus on gender discrimination in pay. In addition, if your company is a government contractor, you have a number of affirmative action obligations depending on the monetary value of your contracts and the number of individuals you employ. The federal Office of Federal Contractors Compliance (“OFCCP”) has a 2013 budget that provides for a 12% increase in employer compliance evaluations in 2013, and the OFCCP has increased its focus on pay equity for women, as well as for racial minorities. A priority this year should be reviewing your pay practices to ensure nondiscrimination. To preserve arguments that your internal pay review is legally privileged, you may want to conduct any pay equity review through legal counsel.

7. Train Your Managers:  Even the best-intentioned employer can run into legal trouble if managers are not sufficiently trained on employment law requirements and how to appropriately manage and document employee performance issues. New managers should be trained as soon as possible on their obligations to assist your company with legal compliance, and other managers should receive regular refresher training. A priority in 2013 should be reviewing your training schedules and content to ensure that managers are receiving the training needed to help your organization manage and limit legal risks.

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