Employment Law 2012 Review and the Employer Landmines to Avoid

2012 was a year of change, progress, digress, and a Presidential Election – all of which brought significant developments in employment law, especially for employers. Here are just a couple of highlights from 2012:

Social Media – Can Employees Really Say That About Us On-Line?
There are millions of people on social media these days. If it be Facebook©, Twitter©, LinkedIn©, internet blogs – you name it. With all the social media avenues out there in cyberspace inevitably come employees wanting to vent and complain about their jobs. They complain about paychecks, the salary they make, or they don’t like the way their employer handles the workforce. Once the employer gets wind of the inappropriate posts, the employer’s first instinct is to fire that employee. NOT SO FAST! Generally, under the National Labor Relations Act, employees are allowed to congregate and discuss their working conditions for mutual aid and protection free from employer retaliation. Now the National Labor Relations Board (“NLRB”)(the governmental agency that generally protects employees’ rights to unionize and have unions represent them) says it does not matter in what forum the employees have their pow-wows. This is because the NLRB views social media as an appropriate forum to congregate and should not give the employees any LESS protection, and essentially it just gives them more due to the power of social media in today’s society. The current decisions in 2012 coming down from the NLRB are very much pro-employee. The broader the policy on restricting the employees’ conduct in social media, the worse off the employer is. States are even getting involved with their own legislation, such as, as of Jan 1, 2013, it will be unlawful in Illinois and other states for operators to request passwords and log in information to access employees’ personal social media sites. Revising your social media policies is a must and not an option!

Employee Background Checks – What Is Really Fair & Consistent Treatment In Hiring?
Background checks came into the employment spotlight in 2012. Traditionally, employers thought they could comply with discrimination laws by having blanket policies that state, for example, no employee would get hired if they had a felony criminal conviction in the past 7 years. It is a consistent policy and it treats every individual the same, right? Well, not according to the Equal Employment Opportunity Commission (“EEOC”) (the governmental agency that enforces federal laws that make it illegal to discriminate against a job applicant or an employee because of an individual’s protected class). The EEOC has recently fine-tuned its guidance on background checks. The EEOC finds that these general policies have a discriminatory effect on African Americans and Hispanics because these two races have a higher statistic of getting arrested and ultimately convicted. Thus, employers must go through an individualized case-by-case assessment before they can disqualify applicants from positions. This assessment includes, among other factors, the nature and gravity of the crime; the time that has elapsed from when the crime was committed; rehabilitation efforts; and post-conviction employment. State laws may also throw another layer of restrictions that you should be aware of in the states you operate. It makes good sense to have written guidelines for those administrators in your company that perform and analyze such background checks.

Wage & Hour Violations – To Pay Or Not To Pay, That Is The Question!
Employee-side attorneys have made it a priority in 2012 to sue companies for wage and hour violations, and it is not dying down. This could be for not paying employees minimum wage; not calculating overtime pay correctly; paying them salary when they should be paid hourly; calling them an independent contractor when they are truly an employee; inappropriately deducting from employees’ paychecks for shortages, uniforms or broken company equipment; or not giving them their required meal or rest breaks – to just name a few. Unfortunately for employers, they must stay abreast of not only federal laws, but also differing state-specific laws that dictate how, when, where, why, etc. to pay employees. Getting re-educated on these changing laws should happen sooner rather than later as honest mistakes can happen so easily, yet cost your company a lot of money in fees, penalties and interest.

Practice Tips
•    Review existing written policies for compliance, or create ones if your handbook is deficient.
•    Train management employees as there can never be enough training to ensure they are enforcing your policies and practices correctly, consistently, and uniformly.
•    Sign up for employment labor blogs from law firms and state and federal agencies! This is an easy and quick way to get news alerts on new laws.

What to watch out for in 2013? For those employers who are non-unionized, the NLRB will continue to make its presence known in your workforce, if it be rejecting your “at-will employment” disclaimers in handbooks and contracts, restricting your social media practices, or requiring the posting of the NLRB’s “Employee Rights Poster” that gives employees guidance on how to unionize (although this requirement is currently put on hold by a federal court). Along the same lines, the NLRB is looking for a faster way employees can get unionized, which cuts down the time frame for employers to campaign for management. Lastly, health care reform is not going anywhere. You should keep your eyes and ears open for new or revised mandates to ensure your company is following the right steps for compliance come January 1, 2014 – some mandatory compliance has already started.

We recommend you contact your employment counsel to ensure your policies and practices are tuned up, and you can also contact the author — an attorney with a focus on representing companies on labor and employment law issues since 2001.

Heather A. Bailey, Partner with SmithAmundsen LLC
Email: hbailey@salawus.com
Heather has emerged as a thought leader in the labor and employment industry and is a frequent contributor to the Illinois Chamber of Commerce’s HR Advisory blog and the NAMA Quarterly In-Touch magazine for the vending industry. NAMA Employment Layer.