As we enter 2014, 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.
To ensure compliance, review your policies and practices in all these areas.
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 attorney-client privilege protection.
Review relationships with independent contractors to ensure they are properly classified. The DOL and the IRS have stepped up misclassification enforcement. 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.
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 social media communication may be protected concerted activity when co-workers discuss 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.
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 when leave time is generous.
Evaluate your policies for using criminal and credit records to performon 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 should take into account the nature of the crime and the relationship of the crime to the prospective job.