By Attorney Beth P. Zoller
Special to THELAW.TV
2014 looks to be a year filled with tremendous challenges for employers, as they face new issues and obligations based on changes in federal, state, and municipal law, according to a new report of the 11 Scariest Issues of 2014 published by XpertHR. Further, recent societal trends such as the gay rights movement, the push to legalize marijuana, and advances in technology will have a substantial impact on the workplace. What can employers do to meet these challenges? How can employers best protect themselves to minimize liability and avoid costly and time consuming litigation?
Following are five steps employers can take as they reevaluate and make changes based on 2014 legal trends:
1. Update Workplace Policies
Due to recent legal developments, employers need to review and revise their workplace policies and procedures. Policies regarding drug testing need to be revisited in states that have chosen to legalize marijuana for medical purposes, as well as in Washington and Colorado, which have permitted recreational use. Further, employers need to amend their workplace EEO policies to include new protected categories such as lesbians, gays, bisexual, and transgender (LGBT) individuals, pregnant women, and the unemployed, if their state has chosen to extend legal protection to these groups. Additionally, employers should consider revisiting all handbook policies to make sure that they do not unnecessarily infringe on the employee right to engage in collective action to improve their working conditions under Section 7 of the National Labor Relations Act. Lastly, employers need to make sure that they have comprehensive policies addressing technology in the workplace, such as the use of social media, employee privacy, and bring your own device (BYOD).
2. Revise Recruiting and Hiring Methods
Employers should consider making changes to their recruiting and hiring methods, based on recent developments in federal and state law limiting the use of an individual's credit history or criminal history when conducting background checks, particularly for states and cities that have adopted "ban the box." Further, employers should be aware of states in which marijuana use (medical or recreational) is now legal and be prepared to take this into account when administering any drug test. Additionally, now that the Affordable Care Act is law, employers may want to prepare for the implementation of the employer mandate by hiring part-time or contingent workers, or independent contractors, to minimize their workforce while reducing the number of full-time workers. XpertHR has prepared a report and toolkit on 7 Steps for Employers to Prepare for the ACA for 2014 and 2015.
3. Review Benefits and Leave Offerings
Employers will need to make changes to their benefits plans based on recent legal developments. Following the Supreme Court's decision in U.S. v. Windsor striking down Section 3 of the Defense of Marriage Act, employers need to revise their benefit, health, and retirement plans to address treatment of same-sex spouses. Employers should be aware of what type of same-sex relationship is recognized in their state and how to handle the tax treatment in states that recognize same-sex marriage. Additionally, as part of the ACA, employers now have increased incentives to offer employee wellness programs. If implementing a wellness program, an employer should make sure to take all applicable federal and state laws into account. Additionally, in administering any leave, employers should be aware of recent legislation on the state and municipal level that provides various leaves to employees, such as paid sick leave, bereavement leave, and domestic violence leave.
4. Reassess Training
Employers will need to make sure that they train all supervisors and employees on the latest equal opportunity laws and emerging protected classes such as LGBT, pregnant women, the unemployed, and victims of domestic violence. Such training should instruct supervisors and employees on how to prevent discrimination and harassment in the workplace and reinforce that violators will be disciplined. Further, employers will need to train all supervisors and employees on the proper use of technology in the workplace whether it be social media, BYOD, etc. Supervisors also need to know how to effectively monitor employee use of social media, while respecting employees' reasonable expectations of privacy.
5. Improve Record-keeping
Federal agencies such as the U.S. Immigration and Customs Enforcement (ICE), the Department of Justice (DOJ), and the Department of Labor (DOL) have recently increased their enforcement efforts when it comes to such issues as curtailing illegal employment and making sure wage and hour laws are followed. As a result, employers will need to maintain proper records and documentation to avoid costly lawsuits, civil penalties, and criminal violations. For example, employers need to make sure to comply with Form I-9 and maintain proper paperwork for all employees regarding their eligibility to work in the U.S. Further, employers should make sure that all workers are properly classified and maintain accurate documentation to establish whether indeed the individual is an employee or independent contractor. Lastly, employers should be up to date with their state requirements regarding minimum wage and overtime and properly maintain employee time records to ensure that all workers are paid the wages they are due.
Every year brings new changes in the law and trends that can have far-reaching ramifications for the workplace in terms of policies, recruiting and hiring, training, benefits and leave, and record-keeping. As a result, employers need to reexamine their workplace and see how their workforce will be affected. Employers who anticipate changes and prepare themselves adequately will be able to efficiently and effectively address those changes and reduce the potential for employer liability.
The author, Beth P. Zoller, is an attorney and a legal editor at XpertHR.