This time every year, human resources professionals resolve to improve their employment processes and maintain compliance with applicable laws. Resolutions are more important than ever this year with myriad changes and developments in employment law.
This article outlines eight resolutions that HR professionals should consider for 2016.
1. Pay practices
The U.S. Department of Labor's Wage and Hour Division is expected to issue final regulations in 2016 increasing the salary basis for the executive and administrative exemptions from $455 per week to approximately $970 per week. Some states are also getting more aggressive about wage-and-hour issues.
Meanwhile, wage-and-hour cases are still among the most frequently filed claims against employers. Thus, employers should review their pay practices now at the start of 2016.
Develop a comprehensive plan for staying or getting into compliance this year; and put that plan into effect. Employers that discover areas of noncompliance should cure those areas and adjust pay practices to comply with the new federal regulations or applicable state laws.
2. Background checks
The Equal Employment Opportunity Commission's guidelines for appropriate inquiries about criminal backgrounds of applicants and employees continue to cause problems for employers.
To ensure compliance, 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. Safety programs
In November 2015, OSHA was authorized to increase penalties for the first time since 1990. Experts predict this mandate could result in OSHA penalties increasing by as much as 82 percent in 2016.
Under this plan, the maximum fine for repeat and willful citations, which is currently $70,000, could increase to $125,438! The maximum fine for serious and failure-to-abate citations, which is now $7,000, could increase to $12,744. These fines will also increase in subsequent years at the rate of inflation. These increases must become effective by no later than Aug. 1.
Employers should review their safety programs and make sure they are in compliance as soon as possible. Progressive employers should realize a comprehensive safety program is more than just a cost center and that it can actually contribute to the bottom line while protecting valued workers.
4. Drugs and alcohol
Approximately one-half of the states now have relaxed their laws on marijuana. Some state laws permit medical use of marijuana, while others go further and permit recreational use of marijuana. Other states have adopted laws that prohibit employment actions against employees for lawful off-the-clock activities.
Based on these developments, employers need to review laws in the states where they do business and consider whether any changes need to be made to their drug and alcohol policies. At this time, it is still permissible for employers to terminate employees for having marijuana in their systems, but plaintiffs are challenging this right with many creative theories and this area of the law is likely to remain in flux for the foreseeable future.
5. Dress codes and grooming
In the Abercrombie case last year, the Supreme Court held that the retail chain was required to accommodate a Muslim applicant's practice of wearing a hijab, despite its strict dress code. The EEOC also issued guidelines on religious garb and grooming in 2014.
As a result, employers should review their dress codes and grooming polices to make sure they are still compliant in view of these and emerging legal developments.
6. Classification of workers
Proper classification of workers is more important than ever under a variety of laws. Government agencies are cracking down on the misclassification of workers as independent contractors. In fact, the Administrator of the federal Wage and Hour Division recently published an opinion that broadly said almost any worker should be classified as an employee.
The National Labor Relations Board has been aggressive in changing the rules about joint employment obligations, both in terms of its case decisions and the cases it has decided to bring against employers.
Most notable among the pending cases are those the NLRB has filed that include claims that a major franchisor is jointly liable for unfair labor practices of its individual franchisees. If these cases prove successful for the NLRB, they could fundamentally alter franchising arrangements.
The Affordable Care Act also has some specific rules on employee status.
Based on all of these developments, employers should review whether they have properly classified workers as employees or contractors under all laws that may apply. They should also review their business relationships that could be characterized as joint employment and consider what changes are necessary or appropriate in view of these new developments.
7. Workplace violence prevention and response
With continuing incidents of workplace violence in 2015, employers should re-evaluate and update their workplace violence, no harassment, bullying, weapons and related policies. They should review the established procedures for reporting acts of misconduct or suspicions of inappropriate conduct.
Such procedures need to include appropriate promises of confidentiality and nonretaliation so employees feel comfortable coming forward with information that may prevent harm to others. Employers also need to review their terror response and prevention plans.
8. Employee handbooks
The NLRB has been active over the past few years changing policies that govern employer work rules. The NLRB issued important policies through its case adjudication procedures as well as through the issuance of guidance from its General Counsel.
In light of these developments, employers should review all of their policies and work rules, including those relate 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
Conclusion
Obviously, your resolutions may include other subjects that are not addressed in this article. But, if you will at least review whether these subjects should be on your final list of resolutions, you should be well on your way toward compliance in the New Year.
