About this time every year, human resources professionals begin thinking about ways to improve their employment processes to maintain compliance with applicable laws. This kind of annual review is ever more important this year with the myriad changes and developments in employment law.
This article outlines five of the most important practices that such professionals should review.
1. Employee handbooks and work rules
The current National Labor Relations Board (NLRB) has been active this year in changing policies that govern employer work rules. The NLRB has issued important policies through its case adjudication procedures as well as through the issuance of white papers and other guidance from its General Counsel.
In light of these developments, employers should review all of their policies and work rules, including those related to:
- Confidentiality of wages, benefits and personal information
- Confidentiality of workplace investigations
- Conduct toward management and fellow employees
- Contacts with the media, government agencies and other third parties
- Social media and blogging
- Electronic communications
- Recordings in the workplace
2. Application for employment
The Equal Employment Opportunity Commission recently issued guidelines for appropriate inquiries about criminal backgrounds of applicants and employees. Employers should review the extent to which criminal background checks are job-related and necessary for their particular workplaces.
The language on job applications should be tailored to indicate the employer's lawful use of criminal background information and to contain appropriate disclaimers such as:
NOTE: Answering "yes" to any of these questions does not constitute an automatic bar to employment. The company will consider the nature of the crime, its seriousness, the substantial relation to the position's functions and qualifications, the number of occurrences, the applicant's age at the time of the crime, the time elapsed since the crime, the applicant's entire work and educational history, employment references and recommendations, and the business necessity of any exclusion when required by law.
Employers must ensure compliance with the Fair Credit Reporting Act when conducting background investigations on applicants and employees.
Of course, employers must also ensure that their applications do not contain unlawful inquiries about protected categories such as age, sex, disability, religion, service member or immigration status, among others.
3. Immigration compliance
The Immigration Reform and Control Act (IRCA) provides stiff fines and even criminal penalties for noncompliance. As such, employers should conduct periodic self-audits to make sure that all I-9 forms are fully and properly completed and that all employees are legally authorized to be working in the United States.
Many state and federal regulations also require the use of E-Verify. Employers should review their compliance with those additional immigration-related requirements.
4. Worker classification
Proper classification of workers is more important than ever under a variety of laws. Many government agencies are cracking down on the misclassification of workers as independent contractors. In fact, the Administrator of the Department of Labor (DOL) Wage-Hour Division recently published an opinion that broadly said almost any worker should be classified as an employee.
Employers should also review classification of employees as exempt and nonexempt under wage and hour laws. Litigation regarding such classification continues to be one of the fastest growth areas in employment law.
Plus, the DOL is expected to issue new regulations regarding the salary basis of pay for the white-collar exemption to the federal Fair Labor Standards Act. Employers need to ensure continued compliance with the law regarding classification of employees.
Employers should also review their classification of employees under various other laws, including the Affordable Care Act.
5. Documentation for training programs
One way to ensure compliance with laws is to train employees and managers about their employer's policies. As part of this review process, employers should make sure they have adequate programs to train employees about their policies relating to important policies and practices, including, among others:
- Equal employment opportunity and no harassment
- Drug testing
- Workplace violence
- Acceptable use of electronic systems
- Social media and blogging
- Safety
- Basic work rules
Employers must make sure employees know how to report alleged violations of these policies. It is helpful to have multiple channels for employees to address concerns. For example, the military chain of command, from supervisor upward through the levels of management, is appropriate for operational issues.
Complaints about harassment, discrimination or retaliation should be addressed directly to human resources or the top levels of the organization's management. Employers may also find the use of a hotline to be an effective safety valve for a variety of issues. All of these channels are intended to address issues before they fester into full-blow litigation.
Employers should preserve information or presentations about these important subjects to ensure that such training is properly documented by sign-in sheets and individual acknowledgements of participation forms.
Conclusion
Obviously, an employment law self-audit should include a review of other subjects that are not addressed in this article. But, if employers will make sure they review these five practices, they will go a long way toward staying out of trouble in the New Year.
