As we presented at our December 2012 Breakfast with Bradley program, the governmental agencies responsible for the enforcement of the employment laws and regulations continue to expand their reach by issuing pro employee decisions and narrowing, if not outright reversing, previous decisions that were more employer friendly. Much of this is to be expected with agencies like the National Labor Relations Board (NLRA) which because of the political appointment process has always swung back and forth depending on which party is in charge of the administration. However, even with deference to the regulatory swings caused by a change in administration, the decisions increasingly favor expanding employee rights in ways that heretofore seemed unlikely.
Given these changes, what steps should employers take to make sure their house is in order for 2013? Below are a few suggestions you might consider in prepararation for potential investigations and litigation.
- Review your employee handbook. Make sure the provisions are up to date. The laws addressing medical leave (FMLA on the federal level and related state laws) and equal employment opportunity (EEO) have undergone changes in recent years and it is important the policies reflect the changes.
- Do you have a Confidentiality Policy? If so, it needs to be reviewed to make sure that it does not illegally restrict employees (or lead an employee to reasonably believe he or she is being restricted) in the exercise of their Section 7 rights to discuss their terms and conditions of employment under the National Labor Relations Act.
- Have your Social Media Policy reviewed. If you don’t have one, consider implementing one. The NLRB General Counsel’s office has issued a memorandum advising what type of policies are in compliance and those types of provisions which it deems in violation of employees’ Section 7 rights.
- Does your employment application ask questions that the Equal Employment Opportunity Commission (EEOC) deems to be in violation of its regulations?
- If you ask about criminal history or conduct criminal background checks, make sure your decision-making process is in line with the EEOC regulations on using such information to disqualify employees from employment.
- Update your job descriptions. The Department of Labor (DOL) and the Internal Revenue Service (IRS) are actively searching for employee misclassification issues. The DOL has expanded its search for employees who it believes are not properly classified as exempt from overtime requirements and whether independent contractors are truly independent contractors and not employees. The IRS reviews the employer – independent contractor relationships in search of lost revenue with the failure to pay the employer’s share of employment and payroll taxes.
- Is it time to conduct training for your supervisors and managers regarding compliance with the expanded EEO laws and other employment-related statutes? Updated nondiscrimination and anti-harassment policies are key, but management training is critical to achieve compliance.
- If you are new to doing business with the federal government, there are a multitude of obligations that apply depending on the value of the contracts and the number of employees. Affirmative Action plans, minority outreach, and detailed recordkeeping in hiring procedures are just a few of the obligations of which government contract employers must be cognizant.
These are just a few suggestions to consider in preparing for 2013. If you have a Human Resources department, get them involved in these issues early. If you have additional legal questions, then meet with your in-house counsel or consult outside counsel if you are unsure of your obligations or believe your policies could use a “third set of eyes.”
We wish you a safe and joyous holiday season and may 2013 be a successful and prosperous year for your business.
Matthew C. Lonergan