Posts Tagged ‘2012 Triad Employment Law Update’

7 Takeaways from the 2012 Triad Employment Law Update

Thursday, November 15th, 2012

Last Wednesday, Nov. 7, CAI hosted its annual Triad Employment Law Update at the Koury Center in Greensboro. More than 160 HR professionals and company executives attended the conference to receive the latest updates in state and federal employment law.

Lawyers from Constangy, Brooks & Smith, LLP shared presentations with attendees on a number of topics related to recent changes in regulations. Some of the topics covered included updates from the new NLRB, best practices for immigration law compliance and changes from healthcare reform.

Below are seven key insights from the informative law update:

NLRB (National Labor Relations Board) Social Media Policy

  • Employees using social media to complain about their employers may be engaged in protected concerted activity under NLRA
      • Protected posts: seeking advice from coworkers, calling supervisors names, criticizing company actions
      • Unprotected posts: don’t involve other employees or individual gripes, criticizing the company’s clients and complaints to third parties
  • The board continues to offer policy guidance on a variety of social media cases

EEOC (Equal Employment Opportunity Commission) Issues Final ADAAA (American’s with Disabilities Amendments Act) Regulations

  • Eliminated “per se” list of covered disabilities
  • Rejects minimum duration rule that results in short term condition being a disability

New EEOC Regulation on Age Discrimination

  • November 16, 2011—EEOC approves final regulation
    • Now easier for plaintiffs to prove age discrimination in disparate impact cases
    • Facially neutral practices that adversely impact older employees is discriminatory unless employer can prove “reasonable factor other than age”

OFCCP (Office of Federal Contract Compliance Programs) and Proposed Rule on Hiring Goals for Disabled

  • Proposed rule requires federal contractors to set a goal that 7 percent of each job group should be persons with disabilities
    • Require applicants to self-identify as disabled

Correct Your I-9s

  • In general, never do a new I-9,  no matter how bad the errors
    • Common errors that can be fixed: employee didn’t sign, employee didn’t date, employee didn’t fill in “A” number, employee didn’t fill in expiration date, employer didn’t fill in date of hire, employer didn’t fill in street address of company
    • Errors that can’t be fixed: not completing form within three days of hire and missing information from former employees

Avoiding Whistleblower and Retaliation Claims

  • Whistleblower: employer violation of law, rule or regulation
  • Retaliation: related to employee’s individual rights
  • The following are protected from retaliation:
    • current employees, former employees, job applicants and associates of those employees who engage in  protected activity
  • Three elements make up a claim:
    • Protected activity, adverse action and causal connection
    • Employee must have a good faith belief that there was a violation of a law when they engaged in protected activity (Title VII)

Effects of Healthcare Reform

  • Several mandates and changes become effective
    • Implementing external review processes
    • W-2 reporting of the value of employer provided health benefits
    • Summary of Benefits and Coverage (SBC) to be given to all participants at enrollment and at each subsequent annual open enrollment
    • Automatic enrollment for employers with more than 200 full-time employees will be required for new full-time employees, with an opt-out notice
    • Health flexible spending account limit will be $2,500

For further assistance on staying compliant with state and federal employment laws, please call a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

POLITICS AT WORK: Employer Dos, Don’ts, and Be Very, Very Carefuls

Tuesday, October 23rd, 2012

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2012 Triad Employment Law Update.

With early voting already under way and only a short time until the real election day (November 6 – don’t forget!), this is a good time to provide some guidance for employers seeking to keep a civil workplace between now and November 7.

(By November 8, we hope that everyone has forgotten this entire ordeal and is back to normal until next year, when the 2016 campaign begins.)

HERE’S THE NOVEMBER 7 RULE: If your candidate won, do not “spike the ball in the end zone” at work. Wait until you get home. If your candidate lost, wish the winner well, or say nothing. Mourn for the demise of our once-great nation when you get home.

DO’s

DO encourage employees to “talk politics” with people they substantially agree with, or people who are still making up their minds and are looking for guidance. Discourage political discussions among employees who have fervently-held opposing views and whose minds are made up.

DO encourage employees to keep their political discussions courteous, respectful, and focused on the issues rather than personalities or candidates’ “EEO” characteristics, such as the President’s race or Governor Romney’s religion.

DO (if appropriate for your work environment) prohibit political discussion in the presence of customers, or when employees are expected to be actually getting some work done.

DO consult with applicable state law about voting leave, and comply with it. Please note that in some states you have to post a voting-leave-rights notice in advance of election day. Be sure you have done this if those laws apply to you.

DO be aware that, in a handful of states, it is unlawful for an employer to try to influence an employee’s vote. (The voting-leave chart linked in the prior “DO” includes these laws.) If you operate in one of these states, you should not overtly (with employees) endorse or oppose any candidate, referendum, or other initiative.

DO remind employees of your internet and email policies, and encourage them to be judicious and professional in sending or forwarding political emails or links.

DO feel free to break up employees’ political discussions at work if the atmosphere is becoming contentious or employees appear to be uncomfortable. DO encourage your employees to “self-police” political discussions by leaving, or warning their co-workers when the discussion appears to be heading into hostile territory.

DO feel free to ensure that political discussions do not interfere with getting the job done.

DON’Ts

DON’T have a flat ban on all political talk at work. As most employers know, the First Amendment does not apply to private workplaces, but the National Labor Relations Act could come into play if the discussions implicate “terms and conditions of employment.”

DON’T make, or allow others to make, comments about candidates that may be discriminatory or harassing based on the candidates’ or their supporters’ race, sex, national origin, religion, color, age, disability, or any other legally protected characteristic.

BE VERY, VERY CAREFULs

BE VERY, VERY CAREFUL about political discussions among employees about issues that are especially inflammatory or emotional, such as same-sex marriage, LGBT rights, reproductive rights, and affirmative action. These are legitimate topics for political discussion, but they are also sensitive and carry a high risk of creating hurt feelings or causing hostility.

BE VERY, VERY CAREFUL about sharing your company’s political views, assuming you live in the majority of states where this is legal. Be sure to preface your discussion with a statement to the effect that the decision of how to vote is the employee’s, and the employee’s alone. Then present the company view as “We wanted to share the Company’s position on [CANDIDATE OR ISSUE].” Keep the discussion objective, factual, and focused on issues, not personalities. At the end, remind employees that you are only sharing the company’s view and are not attempting to tell employees how to vote. But be aware that some employees will still view this as “pressure,” and take that into account in making the decision whether to share the company’s views at all.

CAI’s 2012 Triad Employment Law Update, scheduled for November 7 at the Koury Center in Greensboro, will provide additional information on staying compliant with state and federal laws. The conference will also provide material on several legal topics affecting employers, including ADAAA, FLSA Exemption, Immigration and Healthcare Reform. Register today at www.capital.org/triadlaw.