E-Alerts

2012 Is Here! Time To Review And Update Your Employment Policies

[January 11, 2012]  This year, it is especially important for employers to review their employee handbooks to ensure that they are both legally compliant and up to date with current practices.  Numerous changes in federal and state employment laws have taken place over the past year and are slated to become effective in 2012, requiring employers to act now.

The most significant changes and our corresponding recommendations are as follows:

• Cell Phone Policies.  Employers should review and update their cell phone policies, for employees who operate vehicles in the course of their work, to address recent changes in state laws relating to the use of portable electronic devices while driving.  Numerous states – including Connecticut and Massachusetts – already restrict the use of electronic devices while driving, and the National Transportation Safety Board recently called for a nationwide ban on all non-emergency use of such devices while driving.  Thus, further developments in state laws in this area can be expected.
• Criminal Record Check Policies.  Employers should revise their policies and practices regarding criminal background checks to comply with each applicable state’s requirements.  In Massachusetts, the CORI Reform Law goes into effect on May 4, 2012.  The Law imposes numerous additional obligations on employers that rely on criminal history records to make employment decisions.  For example, employers that conduct five or more criminal background checks annually will be required to have a formal CORI policy.

• EEO And Anti-Discrimination Policies.  Employers should provide anti-discrimination training to all supervisors, and review and revise their anti-discrimination and related policies as appropriate, to help shield the organization from the “cat’s paw” claims recognized by the U.S. Supreme Court for the first time in Staub v. Proctor Hospital, a groundbreaking 2011 decision.  In Staub, the Court held that an employer can be liable for taking adverse action against an employee based on information provided by a biased supervisor, even where the manager who actually implements the adverse action has no discriminatory animus and is unaware of the supervisor’s bias.  This new “cat’s paw” theory provides the plaintiffs’ bar with a powerful new tool to wield against unwary employers.

• EEO And Anti-Harassment Policies.  Employers should review their equal employment opportunity, anti-harassment, and related policies to ensure compliance with new EEO laws, such as the Massachusetts Gender Identity Act.  This new Massachusetts law, which becomes effective on July 1, 2012, adds gender identity as a protected characteristic to various state anti-discrimination laws, and prohibits discrimination based on gender identity in employment, education, housing, credit, and other areas.  A growing number of other states (including Connecticut, New Jersey and California) have enacted similar prohibitions on gender-identity discrimination.  Thus, multi-state employers should carefully monitor state-law developments in this area.

• EEO And Anti-Retaliation Policies.  Employers should update their anti-retaliation policies and provide comprehensive training to ensure that managers understand that retaliation against any employee in response to a complaint of discrimination is impermissible.  In another groundbreaking 2011 decision, Thompson v. North American Stainless, LP, the Supreme Court held that a third party who did not engage in protected conduct can nevertheless bring a retaliation claim if he or she is subjected to an adverse employment action as a result of a discrimination complaint made by another employee with whom the third party has a close relationship.  Thompson significantly broadens the circumstances in which Title VII retaliation claims can be brought, raising the stakes even more for employers in this ever-expanding area of the law.

• Electronic Communications And Social Media Policies.  Employers should review their electronic communications and social media policies and practices to ensure that they do not violate employees’ rights to engage in concerted activities.  In a number of recent “Facebook firing” cases, the NLRB has issued complaints against employers that have terminated employees for posting online complaints about workplace issues.

• Reasonable Accommodation Policies.  Employers should update their reasonable accommodation (disability) policies and provide manager training to ensure compliance with the U.S. Equal Employment Opportunity Commission’s regulations under the Americans With Disabilities Act Amendments Act, which became effective on May 24, 2011.

• Severance Policies And Separation Agreements.  Employers should review their severance policies and standard separation agreements for individuals who are 40 years of age or older for compliance with the Older Workers Benefit Protection Act (“OWBPA”), in order to ensure that employers receive enforceable releases in exchange for any severance offered.  Under the OWBPA, an employee may not waive any right or claim under the federal Age Discrimination in Employment Act (“ADEA”) unless the waiver is “knowing and voluntary” and is part of an agreement “that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate.”  A 2011 decision by the U.S. Court of Appeals for the Second Circuit, Ridinger v. Dow Jones & Co., Inc.,  provides a reminder of the importance of this requirement, as the Ridinger court carefully considered (and ultimately rejected) the plaintiff’s claim that the wording of the ADEA release given to him was unlawfully vague.

• Sick Leave Policies.  Employers in Connecticut should revise their leave policies to make them consistent with a new Connecticut statute (which became effective on January 1, 2012) that requires most Connecticut employers with at least 50 employees provide paid sick leave to employees who qualify as “service workers.”  Several municipalities in other states have recently enacted similar laws.

• Social Security No-Match Letter Policies.  Employers should review their policies for responding to “no-match” letters issued by the Social Security Administration (“SSA”).  In April 2011, the SSA resumed sending employers no-match letters, which notify employers of discrepancies between identifying information provided by employees and information in the SSA’s records.  The Department of Justice has provided general guidelines for responding to no-match letters, and employers should carefully review the guidelines when crafting their corresponding policies.

• Tip Credit And Tip Pooling Policies.   Employers that have tip-pooling practices or policies should ensure compliance with state tip-pooling laws (including recent court decisions, such as in Massachusetts); and employers that claim the statutory “tip credit” against their minimum-wage obligations should review their payroll practices to ensure compliance with the Final Rule issued by the United States Department of Labor in April 2011.  Under this Final Rule, employers claiming the tip credit must provide specific information to tipped employees.  In addition, the Final Rule specifies that an employer may control the use of employee tips only via a lawful tip pool. 
  

• Union Avoidance Policies.  Employers should carefully review and, if necessary, update their union avoidance policies (i.e., workplace policies intended to help preserve a non-union environment, such as no-solicitation and no-distribution policies, email and social media policies, and union-free workplace policies), in preparation for complying with their obligation to display the new National Labor Relations Board (“NLRB”) poster informing employees of their rights under the National Labor Relations Act.  The NLRB’s regulation requiring employers – both unionized and non-unionized – to display this poster is slated to become effective on April 30, 2012.  Additionally, non-unionized employers should train supervisors and human resources personnel on how to recognize and respond appropriately to possible union organizing activities.

• Wage & Hour Safe Harbor (Complaint) Policies.  Employers should ensure that their wage and hour safe harbor policies, and related training procedures, clearly convey that employers must respond appropriately to all complaints of alleged violations of the Fair Labor Standards Act (“FLSA”), whether such complaints are oral or written.  This recommendation is prompted by the Supreme Court’s holding, in a 2011 decision entitled Kasten v. Saint-Gobain Performance Plastics Corporation, that even purely oral complaints of alleged violations of the FLSA are sufficient to trigger the statute’s protections against retaliation.

• Workplace Violence Policies.  Employers in Maine and Wisconsin should review their workplace-violence policies – and revise them as necessary to comply with new state laws that require employers to allow employees with appropriate permits to keep concealed firearms in their locked vehicles.  The new Wisconsin statute also provides that employees may carry licensed, concealed weapons in the workplace unless an employer specifically prohibits the carrying of weapons and posts prominent signs near entrances to its facility notifying employees and visitors of its policy.

Given the many changes in labor and employment laws over the past year, it is important for employers to review and update their policies to ensure legal compliance.  In addition, multi-state employers should be sure to address changes in the laws of all states in which they operate.  In this regard, most states have some unique or unusual employment statutes.  A properly updated state-specific employee handbook will help each employer to ensure compliance with all applicable laws.

***

 If you have any questions regarding these issues, our recommended annual employee-handbook audit, or any other labor or employment issue, please do not hesitate to contact us.