Dykema Gossett PLLC

Dykema Labor & Employment Law Blog

Five New Year's Resolutions For Employers


Five New Year's Resolutions For Employers

As clichéd as it sounds, the beginning of a new year is a good time for employers to assess their employment practices, both to comply with changes in regulations or laws that became effective on January 1, 2013, and to check for outstanding issues that should have been addressed long ago.  While a full-fledged employment audit is well beyond the scope of a simple blog entry, there are nonetheless many simple steps employers can take to ensure ongoing legal compliance. 

1.  Fair Credit Reporting Act

Effective January 1, 2013, enforcement of the Fair Credit Reporting Act (“FCRA”) transferred from the Federal Trade Commission to the newly created Consumer Financial Protection Bureau.  Along with that transfer, the CFPB issued new forms that must be used by employers who utilize consumer credit reports or investigative consumer credit reports in order to comply with the requirements of the FCRA.  If you are an employer that has hired a third party to perform background checks of employees or applicants, contact that investigative agency to be sure they have switched to the new forms.  At the same time, review the FCRA's requirements to make sure that you are securing effective authorizations from employees prior to conducting reports, as well as giving appropriate notice upon taking an adverse action based upon the contents of such a report.

2.  Treatment of LGBT Employees

Through the recent Macy v. Holder decision (which was discussed in detail in a blog entry last year), as well as its 2012-2016 Strategic Enforcement Plan, the EEOC has made it clear that it intends to target under the "sex" component of Title VII of the Civil Rights Act of 1964 employers who are alleged to have discriminated against or harassed lesbian, gay, transgender, or transsexual employees.  Take some time to review your corporate policies and employee handbook (or even to conduct training) to be sure that this type of discrimination and harassment is not occurring in your workplace (or if it is, to stop it before you get sued).

3.  Accommodation of Disabilities

The EEOC's 2012-2016 Strategic Enforcement Plan also includes a new focus upon employers that have not complied with their obligation to accommodate workplace disabilities under the Americans With Disabilities Act.  As a result of the the ADA Amendments Act of 2008, the definition of "disability" has been substantially rewritten, and many employees who were not eligible for accommodation under prior interpretations of the ADA now must be provided with accommodation so that they can perform the essential functions of their job.  Re-examine your accommodation process so that you truly are engaging in the interactive process with disabled employees, and make sure that your front-line supervisors have enough familiarity with the ADA to refer accommodation requests to Human Resources, rather than trying to handle it on their own (or, even worse, denying those requests outright).

4.  Treatment of Independent Contractors 

The U.S. Department of Labor and Internal Revenue Service continue to investigate companies that designate employees improperly as independent contractors and, as a result, fail to pay appropriate employment taxes or provide necessary employee benefits.  Determining whether an individual is an employee or an independent contractor is far from simple; a written agreement between the putative independent contractor and your company stating that the relationship is not an employment relationship is nearly meaningless to either the DOL or the IRS.  Both agencies employ sophisticated, multi-part tests to determine the true nature of the relationship that include the ability of the contracting party to set the time and place of performance, whether the supposed contractor has any contracts other than the one with the contracting party, and the identity of the person that provides and tools or supplies needed to perform a job.  If you have independent contracting relationships, work with an employment attorney to protect yourself; this is yet another area where an ounce of prevention is worth a pound of cure.

5.  Social Media Policies and the NLRB

In 2012, the NLRB continued its expansive reading of the National Labor Relations Act in many ways, but none more apparent than in its criticism of employer social media policies.  The Board repeatedly has held that social media policies prohibiting employees from criticizing employers through social media run afoul of an employee's right to engage in protected and concerted activity under the NLRA.  Employers should, as part of their annual review of employment policies, consider whether their social media policies continue to be consistent with this new, aggressive interpretation of the NLRA.