As we enter a new decade, HR must pay more attention than ever to employment law issues. Reason: new laws taking effect, increased agency enforcement, more lawsuits spurred by a poor economy and an activist Congress. Here are 10 key trends and how to respond:
1. Had layoffs? Review OT eligibility
As employers shed workers by the millions in recent years, workers were left to juggle their own tasks as well as those of departed co-workers. Result: For many, shifting job duties also shifted status under the Fair Labor Standards Act. That’s one reason such lawsuits have spiked in recent years. To help determine employees’ status, use our Exempt vs. Nonexempt checklist at www.theHRSpecialist.com/checklist.
2. Get serious about social media
Employers that tried to ignore social media will need to embrace it—or at least understand it—in 2010. You face risks when employees misuse those tools. First step: Establish an employee policy on use of blogs, Twitter, Facebook, etc. Find advice and sample language at www.theHRSpecialist.com/socialpolicy.
3. Rethink independent contractors
It hasn’t escaped the government’s notice that the economic crisis and high cost of health care have tempted organizations to misclassify more employees as independent contractors (a tax savings and liability saver). Now, the IRS is launching a wide-ranging audit program in February to find employers that misclassify workers.
For classification help, read our white paper, Independent Contractor or Employee? How to Make the Call, at www.theHRSpecialist.com/contractor.
4. Get to know GINA
The Genetic Information Nondiscrimination Act (GINA)—which makes it illegal to discriminate against workers and applicants based on their genetic information—took effect in November. List genetic information as a protected class in all relevant policies, such as your anti-discrimination and anti-harassment policies. For details, go to www.eeoc.gov/laws/types/genetic.cfm.
5. Evaluate your I-9 process
The U.S. Immigration and Customs Enforcement (ICE) launched a new audit initiative last year targeting employers that hire undocumented workers. Even simple mistakes with your I-9 forms can lead to big fines and egg on your HR face. For tips on I-9 compliance, go to www.theHRSpecialist.com/ICE.
6. Beware hasty
Review your disability leave policies to ensure they don’t contain inflexible provisions requiring automatic termination after an employee has been out for a certain period of time.
The EEOC has been challenging such practices. The premise: Inflexible leave policies could violate the ADA if they short-circuit your requirement to engage in an “interactive process” to determine whether additional leave or other accommodations might be warranted. Learn more about new ADA rules that took effect in 2009 at www.theHRSpecialist.com/thenewADA.
7. Pay attention to union issues
When the health care debate ends, Congress will turn to union issues. Some version of the Employee Free Choice Act has a 50-50 chance of passage.
Advice: Review existing communication channels to make sure employees have a way of raising concerns. Then address those concerns. Increase employee satisfaction (and make union representation less appealing) by using surveys and audits to take the workforce’s pulse. Educate managers on the union risk and how to quickly (and legally) respond at the first hint of an organizing campaign.
8. Monitor sick-leave legislation
Mandatory sick-leave legislation gained new traction from the H1N1 flu pandemic and support from the Obama administration. Congress is currently weighing bills that would require businesses with 15 or more employees to provide sick leave, and at least a dozen states have proposed similar laws in recent years. Be prepared to alter your policies based on these “minimum-leave” bills.
9. Prevent violence before it happens
Employers have a legal duty to protect employees from foreseeable harm. That includes violent workers. For a sample violence policy, plus advice on planning for and responding to incidents, access our free Toolkit at www.BusinessManagementDaily.com/Violence.
10. Federal contractors, beware
If you are a federal government contractor, run an in-house audit to make sure you’re complying with rules of the Office of Federal Contract Compliance Programs (OFCCP). This year, that includes using the electronic E-Verify system to confirm new hires’ work eligibility. The OFCCP is also beefing up enforcement efforts.
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