2012 Employer Watch-List: Trends in Employment Law
Employment law is moving fast and employers that are not proactive may find themselves lost in a dust of unwinnable lawsuits and grave compliance issues. To prevent that, employers should be proactive, including maintaining an active watch list following trends in state and federal employment law. Increased employment litigation, mandatory E-Verify laws, criminal history background checks, social media and paid sick leave are a few items that have earned a spot at the top of employers' 2012 watch list.
Increased Employment Litigation
Employment discrimination and retaliation lawsuits have been steadily rising and a slow down does not appear to be anywhere in sight. In fact, employers have a greater chance of being sued by their employees than by third parties. Therefore, employers should engage in preventative measures through proper training and ensuring that their internal policies and procedures remain compliant with an ever-changing legal landscape. In the unfortunate event that litigation does occur, employers should also be sure to understand how to conduct an effective internal investigation and have a firm grasp of the administrative, arbitration, mediation and litigation processes.
In this respect, XpertHR offers the following helpful resources:
How Tos:
- How to Prevent Age Discrimination;
- How to Prevent Religious Discrimination;
- How to Prevent Pregnancy Discrimination; and
- How to Prevent Race Discrimination.
FAQ:
Policies and Documents:
Employment Law Manual content:
- Investigations and Litigation > Internal Investigations;
- Investigations and Litigation > Arbitration;
- Investigations and Litigation > Mediation;
- Investigations and Litigation > Litigation;
- HR Strategy, Management and the Law > Labor and Employment Law Overview; and
- Employee Management > EEO - Discrimination.
Mandatory E-Verify Laws
E-Verify is a free web-based program that allows employers to verify employees' Form I-9 information. E-Verify is operated by the US Department of Homeland Security in conjunction with the Social Security Administration.
Mandatory E-Verify laws (state laws requiring employers to use E-Verify) are quickly creeping across the US. If one has not yet made its way to your state, you should consider yourself lucky and use the time to prepare.
These state law mandates vary in terms of who is impacted. For instance, some laws only impact public agencies and/or contractors, while others impact all employers.
FAQs:
- What is E-Verify? Is an employer required to use it?; and
- Interviewing and Selecting Job Candidates: Mississippi.
Legal Insight:
Employment Law Manual content:
- Recruiting and Hiring > Preemployment Screening and Testing; and
- Recruiting and Hiring > Immigration, Form I-9 and Work Visas.
Criminal History Background Checks
States are also rapidly enacting legislation to assist applicants with prior arrests or convictions in obtaining employment. These laws - referred to as ban the box laws - govern the timing and scope of preemployment inquiries regarding criminal history. Ban the box laws, typically, prevent employers from inquiring about an applicant's criminal history until after the initial employment application and encourage employers to only consider criminal history information impacting an applicant's ability to do the job.
In 2009, Minnesota became the first state to enact ban the box legislation. Over the next three years, over a dozen states would join Minnesota. This trend is also evident on a local level with over 30 counties and municipalities, including Newport News, Detroit and Philadelphia, similarly adopting ban the box laws.
Perhaps sparked by the surge of ban the box laws, in a recent survey the Society of Human Resource Management (SHRM) found:
Fifty-eight percent of organizations [surveyed] allowed job candidates to explain the results of their criminal checks before the decision to hire was made.
In addition to XpertHR's state and federal employment law content, it offers the following resources to help its subscribers understand and deal with this issue:
How Tos:
- How to Use Criminal Records for Employment Purposes; and
- How to Exercise Reasonable Care in the Hiring Process.
FAQ:
News:
- New Indiana Law Regarding Criminal Background Checks; and
- EEOC Offers New Guidance on Arrest and Conviction Records.
Policies and Documents:
- Criminal Offender Record Information Policy (Massachusetts);
- Background Check Policy; and
- Employment Application Form.
Paid Sick Leave
Back in 2006, San Francisco became the first government to pass a mandatory paid sick leave law, which became effective in 2007. The next year, the District of Columbia would follow with its own mandatory paid sick leave law, requiring employers to provide paid sick and safe leave. Recently, in 2011, Connecticut became the first state to require paid sick leave for certain workers. Other states, such as Arizona, Hawaii and Washington, are considering paid sick leave laws. Notably, most industrialized countries require employers to provide some sort of paid sick leave to workers.
In addition to our employment law manual content, XpertHR's Best Practice Manual includes Sickness Absence Management content. Global employers should consult our International Manual for information on paid sick leave laws in other countries.
Social Media
Earlier this year, certain employers made headlines by asking applicants and current employees for their social media login information - a practice referred to as shoulder surfing. Some saw this practice as an invasion of employees' privacy. Others saw it as a way to streamline the recruitment process by increasing transparency.
Maryland was the first state to take a position on this hotly debated issue by making shoulder surfing illegal. While one state does not create a trend, other states are considering similar legislation (e.g., California, New Jersey, New York, Massachusetts and others) and two proposed federal laws are pending. Therefore, employers are likely to see an eruption of shoulder surfing laws on the state and/or federal level. Accordingly, employers should keep apprised of developments in this area by regularly checking XpertHR for updates and consulting content already available on the site that considers the effects of this trend.
XpertHR offers the following resources to help employers stay on top of this rapidly evolving issue:
How Tos:
- How to Draft and Enforce a Social Media Policy in the Workplace;
- How to Draft a Social Media Recruitment Policy; and
- How to Use Social Media in the Recruiting Process.