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 2015 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.
Confirm employment applications and processes comply with “Ban the Box”.
In 2014, Illinois and New Jersey became the newest states to pass “Ban the Box” laws specifying when a private company can ask about criminal history. Illinois requires that a company wait until an interview has been granted (or, if no interview, until a conditional offer of employment has been made) before asking about criminal history, while NJ’s law requires companies to wait even longer. Employers hiring in the six states currently with laws of this kind should review employment applications to make sure criminal background questions have been removed and that questions regarding criminal background aren’t asked until it’s legal to do so.
Ensure that non-solicits and non-competes meet consideration requirements.
Many Illinois courts have begun to settle on a bright-line rule that a non-compete provision or other restrictive covenant in a contract will not be enforceable if the only consideration provided to the employee in return for the covenant is at-will employment for a period of less than two years. Illinois is not the only state where the requirements for such agreements have changed over the last several years. Employers should review their agreements with employees annually to make sure that they reflect the latest state law developments and will be enforceable.
Comply with Illinois’s new pregnancy accommodation rules and notice requirements.
Employers in Illinois are now required to provide reasonable accommodations to pregnant employees and applicants who ask for them, to post a notice in the workplace regarding pregnancy accommodation rights, and to include language relating to such rights in their handbooks. Make sure that your team is aware of these requirements.
Consider whether non-exempt employees are working “off the clock”.
In 2014, the Supreme Court issued a decision that highlights the issue of when non-exempt (overtime eligible) employees need to be paid for things they do outside the regular workday. The case dealt with employees putting on safety gear, but bigger concerns for most employers are employees emailing, texting, and using mobile phones. Look closely at whether your team communicates with non-exempt employees after hours and whether you are including the time spent in these communications as “working time.”
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 an employee leaves and can help guard against claims that overtime-eligible employees worked “off the clock”.
Understand risk in prohibiting employees from using email to organize.
In December, the NLRB ruled that employees have a right to use company email systems to organize, unless all non-business use is prohibited. While this issue will continue to be litigated, in the meantime, employers should review policies that prohibit use of company email for union organizing and take care with any employment action (discipline, termination) based on an employee’s use of company email for this purpose.
Review background-check policies to confirm in line with EEOC and FTC guidance.
The new joint-guidance from the FTC (which oversees the Fair Credit Reporting Act) and the EEOC (which oversees discrimination laws) provides nuts-and-bolts advice on how to effectively and legally use background checks. Employers should consider training all employees with hiring authority and/or implementing procedures to ensure that they are correctly using the background check information they obtain in the hiring process.
Make sure that disability accommodation requests are properly considered.
The Sixth Circuit Court of Appeals made headlines this summer when it found that working from home could be a reasonable accommodation in certain circumstances. While that decision is on re-hearing, it serves as a good reminder that each request for an accommodation needs to be considered on its specific facts with the employee’s position in mind.
Revise EEO and harassment policies to include gender identity as a protected class.
Many states include gender identity as a protected class. In 2014, The EEOC filed its first suit claiming that discrimination against transgender employee violates Title VII. When revising your handbooks and policies, confirm gender identity is listed as a protected category, and consider possible claims based on gender identity when weighing the risk of employment actions.
If using “paycards”, make sure they comply with new Illinois requirements.
Employers in Illinois are now explicitly permitted to use payroll debit cards (or “paycards”) as an alternative to traditional checks for employees who don’t sign up for direct deposit. However, employers using paycards need to meet very specific notice and consent requirements and choose a paycard with limited fees.
Be aware of new EEOC Religious Accommodation guidance.
New guidance from the EEOC emphasizes that companies must permit applicants and employees to follow religiously mandated dress and grooming requirements, unless doing so would pose an undue hardship. The guidance is noteworthy because it suggests that the balance between an individual’s religious expression and legitimate business interests is tipped more strongly in favor of the individual. Employers faced with requests for religious accommodation should look closely at the request and business needs and consult with counsel before making a determination.
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