Employment Law Update: The Top 10 Compliance Items HR Should Consider

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1 Employment Law Update: The Top 10 Compliance Items HR Should Consider Christopher E. Hoyme Jackson Lewis P.C. Omaha Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation 800 attorneys in major locations nationwide Current caseload of over 6,500 litigations approximately 650 class actions Founding member of L&E Global A leader in educating employers about the laws of equal opportunity, Jackson Lewis understands the importance of having a workforce that reflects the various communities it serves 2017 Jackson Lewis P.C. We will likely see increased legislative changes at the state and municipality level o Paid Sick Leave o Pay Equity o Pay History Bans o Ban the Box o Predictable Scheduling o Marijuana Laws o Wage Theft Notifications o Pregnancy Accommodation 1

2 Accrual Excused absences Small increments No retaliation Eligibility 90 days Immediately Reasons Sick Care for dog Family Members Immediate Affinity Limits Accrual cap Use Cap Carryover 2

3 ??? Frontload Accrual PTO bank Separate sick leave bank National policy Location specific Look at Operations Determine which laws apply based on location of employees. Are you a covered employer? Do you have covered employees? Consider current policies Compare current paid leave policies (and CBAs) to the laws. Do we need to provide more paid time? Are the mechanics of our policies compliant? Modify existing PTO or sick policy? Or adopt new policy/policies? One comprehensive multi jurisdictional policy? Separate policy for each jurisdiction? Develop Strategy 2 or 3 policies that group the most similar jurisdictions together? to Comply One policy with addenda for unique state or city requirements that you do not want to apply to all employees? DOL data suggests that 72% of all employers are violating the FLSA in some significant manner. Among the most common are: o Off the clock violations o Automatic lunch deductions o Artificial entries o Misclassifying employees o Improper deductions 3

4 57% - Written evaluations best evidence of performance 74% - Must give fair warning in writing to employees before firing 100% - Employer negligent if no documentation of problems Accuracy is a must- do not inflate ratings Be specific and give examples Be honest Don t ignore problems to be nice Exhibit A for the Plaintiff Jack is a fine employee and a pleasure to work with Retaliation 4

5 In 2016, 45% of all charges filed with the EEOC included a retaliation claim There were more retaliation charges filed than any other type of charge Under Title VII, an employer cannot take any adverse action against an employee because an employee opposes a practice reasonably believed to be unlawful or participates in a proceeding Similar rules apply under ADA, FMLA, and ADEA Worker s Compensation Retaliation - ADAAA and state law Clearly defined performance requirements and rules of conduct o e.g., Job descriptions, annual performance evaluations Consistent enforcement of performance requirements and rules of conduct o Treat similarly situated employees similarly Thorough and accurate documentation supporting decision o Performance improvement plans, written warnings, final warnings, s, etc. Recognize the risks of terminating employee in close proximity to protected activity (i.e., six months or less) 5

6 There is no federal law that protects against discrimination based on gender identity or expression or sexual orientation As currently drafted, the Equality Act is a bill that if passed will prohibit sexual orientation discrimination and discrimination based on gender identity or expression Title VII of the Civil Rights Act of 1964 prohibits discrimination because of... sex The U.S. Court of Appeals for the Seventh Circuit, in Chicago, has ruled that discrimination on the basis of sexual orientation is a form of sex discrimination and unlawful under Title VII of the Civil Rights Act of See Hively v. Ivy Tech (April 4, 2017) This is the first Court of Appeals to hold that sexual orientation discrimination is prohibited under Title VII. The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin Nineteen states (CA, CO, CT, DE, HI, IL, IO, ME, MD, MA, MN, NV, NJ, NM, OR, RI, UT, VT and WA) and D.C. include gender identity and/or gender expression in their employment non-discrimination statutes 6

7 States which have States which have legalized Medicinal Marijuana legalized Recreational Marijuana Arizona New Mexico District of Columbia Louisiana Arkansas Alaska Florida Montana California North Dakota Minnesota Colorado Michigan Illinois Washington Ohio Pennsylvania Oregon Maryland Delaware Nevada New Jersey New York Massachusetts Vermont New Hampshire Maine Rhode Island Connecticut Hawaii Failure to Investigate Create appropriate documentation of investigation According to the Department of Labor women earned on average 83% of men s median annual earnings Substantial disparity in pay based on gender continues despite more than 50 years of legislative efforts Adopt policies/practices to ensure compliance with state and local law Training of any personnel involved in hiring process 7

8 Inadequate Training Failure of to Managers Train all managers on basic employment laws o Informed managers are more likely to spot issues and prevent litigation o Provides legal defense to discrimination claims Union Free Training - Company policy, advantages of Union free and disadvantages of representation and T-I-P-S Affirmative defense to harassment claims o Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) What is it? Data Analytics: the science of examining raw data through use of algorithms with the purpose of drawing conclusions about that information. It is used in many industries to allow companies to make better business decisions in many areas, such as finance, marketing, sales and human resources 8

9 Workplace Analytics is the practice of collecting and mining Big Data on applicants, employees, operations, customer interactions, and a myriad of other metrics and then using statistical analyses to identify correlations that can vastly improve decision making in areas such as: (i) optimizing traditional HR functions, such as recruiting, hiring, and retention (ii) improving sales through better positioning/training employees (iii) improving efficiencies obtained through better use of human capital Benefits of use with recruitment and hiring o Simplify review of voluminous candidate information into digestible form o Speeds up hiring process o Eliminate Like Me bias of human interviewers o If successful, significant savings in increased productivity and job performance, and reduced turnover o Social media content may be more reliable than answers on job applications during interviews THANK YOU With 800 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to address every aspect of the employer/employee relationship