Each year, LP’s Labor & Employment Practice Group is pleased to provide a short checklist of steps that all companies should consider taking to measure their readiness for the coming year. We hope that you find this 2014 Labor and Employment Law Checklist a helpful guide to best practices for the year ahead.
Download the checkable PDF here. Print it out for yearlong reference, or get started right away and enjoy the satisfaction of checking some very important items off your list.
1. Ensure that Illinois non-solicits and non-competes won’t be thrown out for lack of consideration.
A case handed down last summer found that employment at-will isn’t enough consideration to enforce restrictive covenant agreements unless the employee is employed for at least 2 years. Illinois (and particularly Cook County) employers should review both template agreements and agreements entered into in the last 2 years to make sure that they won’t be found unenforceable for lack of consideration.
2. Confirm “no-guns” signs are posted.
Under Illinois’ new concealed carry law, property owners have the right to post signs prohibiting guns from their buildings. Check with your property owner to confirm that they have posted the sign created by the Illinois State Police. Workplace safety policies should also be revised to remove absolute prohibitions on firearms on premises; replace them with a statement that firearms are prohibited in the company’s offices except as explicitly permitted by law.
3. Make sure “spouse” definitions are consistent with new laws and guidance.
Many states have legalized same-sex marriage and new guidance has been issued by the Department of Labor on the definition of “spouse” under the FMLA and by the IRS on same-sex spouse benefits. Review benefits and leave policies to confirm that they are consistent with these new legal standards.
4. Consider whether social media, non-disparagement, confidentiality and employment at-will policies meet NLRB standards.
The NLRB has continued its focus on non-union employers. If you haven’t reviewed your policies in the last 12 months to confirm compliance with the NLRB’s standards, do so now. This is especially true of any policy that could be read to limit employees’ discussion or disclosure of workplace information to other employees or unions.
5. Re-evaluate English-only rules.
The EEOC is putting a renewed focus on rules that require employees to speak English. While there are certainly reasons for such rules, and they are legal where necessary for safety or customer service reasons, employers often go too far in prohibiting employees from speaking their native language at work. If you require employees to speak English at work, review your rules to ensure that they’re not opening you to discrimination claims.
6. Consider whistleblower rules before taking employment action.
Retaliation or “whistleblower” claims are limited to situations where the law specifically protects employees. However, private employers that contract or subcontract with public companies may be protected by the whistleblower protections in the Sarbanes-Oxley Act (which typically is thought of as only covering public companies). The Supreme Court is currently considering this issue. In the meantime, if your company is a contractor or subcontractor of a public company, consider Sarbanes-Oxley before disciplining or terminating an employee.
7. Revisit mandatory arbitration.
An appellate decision in November was yet another win for employers seeking to require that their employees individually arbitrate employment claims. As the tide continues to shift in favor of enforcing mandatory arbitration agreements that prohibit class claims, employers should revisit whether to implement such a policy. Whether mandatory arbitration agreements are the right option for your company depends on a number of factors, including your industry and employee population, but any employer concerned about class action litigation at least should consider mandatory individual arbitration.
8. “Ban the Box” and background checks.
In 2013 we saw more legislation limiting employers’ ability to request and rely upon criminal background information, including a number of jurisdictions that have “banned the box,” which essentially prohibits any questions regarding criminal history on employment applications. State and federal legislators and agencies have also continued to tighten the restrictions on when employers conduct certain types of background checks and how they use the information they learn. If you have employees in a “ban the box” jurisdiction, revise applications to remove criminal background questions. Also be sure to tailor background check requests to the particular position and consider criminal history on a case-by-case basis, taking into account the offense, how recent it is, and its relevance to the position applied for.
9. Take charge of “B.Y.O.D.”
Do you allow or require employees to use their personal cell phones, tablets or computers for business purposes? If so, you should make sure that you have a strong B.Y.O.D. – “Bring Your Own Device” – policy in place. Good B.Y.O.D. policies can protect company information and relationships in the event the employee leaves and can help guard against claims that overtime eligible employees worked “off the clock.”
10. Don’t get caught in the intern crackdown.
2013 saw an unprecedented number of claims on behalf of interns, including claims for substantial amounts of overtime. Despite the fact that there are many candidates for unpaid or stipended intern position, it is a rare situation when an intern legally can be unpaid or paid less than the minimum wage. Before bringing on an intern below minimum wage (including overtime for hours that qualify), carefully consider whether the money saved is really worth it.
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