CAI hosted its annual Triad Employment Law Update on November 5. The event was held at the beautiful Grandover Resort in Greensboro and more than 160 HR professionals and company executives attended the conference to obtain the latest updates in state and federal employment law.
The knowledgeable attorneys from Constangy, Brooks & Smith, LLP gave several presentations related to the most recent changes in regulations. Topics the attorneys discussed included termination procedures, off-duty conduct, new decisions from the NLRB, health care reform and immigration issues.
Below are several important takeaways from this year’s conference:
The NLRB and Social Media Policies
- Employees using social media to complain about their employers may be engaged in protected concerted activity under the NLRA
- Policies cannot inhibit “protected concerted activity,” such as posting complaints
- Board continues to issue policy guidance on a variety of social media cases
- Recent rulings by NLRB’s administrative law judges have invalidated employer social media policies
Health Care Reform and Employee Benefits
- The one-year penalty delay will allow employers to plan coverage issues more carefully, determine full-time employees, and project additional costs.
- Do not put health care issues aside until next year – use this time to analyze, discuss, and plan to prevent surprises.
- Suggested actions to take
- Identify all common law employees (temps, interns, contractors, etc.)
- Identify any possible variable hour or seasonal employees
- Determine if plan provides “minimum value” and is “affordable”
Background Check Compliance
- Employer can conduct own background check
- If a consumer reporting agency is used to obtain consumer report, Fair Credit Reporting Act (FCRA), as amended by Fair and Accurate Credit Transactions Act applies (FACTA).
- Steps an employer must take:
- Notify employee in stand-alone written notice that it is obtaining a consumer report and get employee’s written consent
- Give employee notice of proposed adverse action (along with copy of report and FTC summary or rights form)
- Wait a reasonable period of time before taking adverse action and give notice of same to employee
Perfecting Termination Procedures
- Some tips to consider:
- It’s recommended to have someone of the same gender as the person being terminated included in the procedures for several reasons, such as safety and empathy
- Terminating on Friday afternoon is not recommended because the terminated employee has many more opportunities to be in contact with family and friends after the work week, which might cause them embarrassment and frustration.
- Don’t come off too apologetic and have policies and performance evaluations ready
- Always cover how they will be able to collect their belongings if they are given the opportunity
Interviewing in the Hiring Process
- Review the job description and make sure your questions match up to the duties and responsibilities
- Avoid questions that might appear discriminatory or offensive
- Avoid questions that could be construed as having illegal motivation
- Structure interview questions and develop a scoring criteria
- Consider using a licensed psychologist to help develop
- Avoid telling applicants that they are hired during an interview
- Don’t speculate about the possibility of employment, length of employment or otherwise
- Remain consistent among applicants
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.