As we enter 2012, it’s a good time to review employment policies and practices in light of the government’s aggressive efforts to enforce employment laws. The National Labor Relations Board (NLRB), the EEOC, U.S. Department of Labor (DOL) and its Office of Federal Contract Compliance Programs (OFCCP) are all cracking down on employers.
To ensure compliance, review your policies and practices in all these areas.
Background checks
Evaluate your policies for using criminal and credit records to perform background checks on job applicants. The EEOC contends that many such background checks have a disparate impact on minorities.
Your policies shouldn’t prohibit hiring any applicants convicted of a crime. Instead, you must take into account the nature of the crime and the relationship of the crime to the prospective job.
Several states and many municipalities require similar background-check policies. Some statutes prohibit application questions about criminal histories, ensuring that initial screening decisions are made without knowing the applicant’s criminal history. Criminal background checks can be conducted only after a first interview.
Several states also have laws that restrict the use of credit checks.
Wellness programs
Make sure your wellness program complies with the ADA, the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA).
Under the ADA, participation in a wellness program must be voluntary.
Under GINA, employers may not offer any incentive to wellness-program participants that rewards them for providing genetic information, including family medical histories. If you wish to obtain genetic information to gain a complete picture of someone’s health, make clear that a participant will receive the financial incentive regardless of whether he or she answers questions that elicit genetic information.
HIPAA generally prohibits discrimination on the basis of a health condition in determining benefit premiums. Thus, a wellness program that offers a premium discount for satisfying a health factor (such as lowering blood pressure) must meet certain requirements to comply with HIPAA.
Independent contractors
Review relationships with independent contractors to ensure they are properly classified. The DOL and the IRS have stepped up misclassification enforcement.
Congress is also interested in the issue, and several bills have been introduced that would impose additional requirements and penalties on employers that misclassify contractors.
If you determine that some people doing work for you do not meet the standards for being independent contractors, you might be able to restructure the way they perform their services so they’re properly classified. Of course, it’s also possible that you may need to classify them as employees.
Either way, you must address misclassification, because penalties for noncompliance are substantial.
Whistle-blower protections
Modify your employment policies to encourage internal reporting of complaints, including whistle-blower complaints, which are a major focus of the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act. That law permits whistle-blowers to bypass employers’ internal reporting mechanisms and to complain directly to the Securities and Exchange Commission.
Other laws also allow whistle-blowers to go directly to the appropriate government agency.
Your policies should encourage employees to raise complaints internally and assure employees that they will not be retaliated against for making an internal complaint. When an employee complains internally, that’s an opportunity to investigate and take corrective action.
Social media
Evaluate your social media policy to ensure that it does not prohibit “protected concerted activity” under the National Labor Relations Act (NLRA). The NLRB has ruled that some employee social media communication may be protected concerted activity when co-workers communicate about their terms and conditions of employment.
Consider adding language stating that your social media policy does not prohibit NLRA-protected activity. Delete language that would bar employee communication about the terms and conditions of employment.
Medical leave
Review leave policies to ensure they don’t call for the arbitrary termination of employees who have been on medical leave for a fixed period of time. The EEOC continues to actively litigate such cases, arguing that employers have a duty to engage in a reasonable accommodation dialogue rather than automatically terminating employees who have been on leave for a certain period of time—even cases where leave time is generous.
Pay practices
The Obama administration is focused on pay equity, as are the EEOC and the OFCCP.
Review compensation practices to identify and fix pay disparities in comparable jobs. Document the basis for your starting pay levels.
Have your attorney handle this, to maximize your protection under attorney-client privilege and the attorney work-product doctrine.
