New on XpertHR This Week - 9/24/2012
This week, XpertHR's newly added resources cover topics such the National Labor Relations Act's expanding reach, shrinking criminal history background checks and other hot topics in HR, employee compensation and payroll and managing employees with disabilities.
The National Labor Relations Act's Expanding Reach
The National Labor Relations Act's reach into nonunion workplaces is constantly expanding. Gone are the days when non-union employers can skip over labor relations issues and think: "Those issues are someone else's problem." In fact, many recent labor relations developments impact union and non-union workplaces alike.
For example, the National Labor Relations Board recently ruled that requiring employees to keep details of internal investigations confidential may run afoul of the NLRA. That ruling impacts most workplaces, regardless of whether they are unionized. A recent ruling that overly broad at-will disclaimers may violate the NLRA, similarly, affects both union and non-union workplaces.
Therefore, it is important that all employers pay close attention to labor relations developments and are prepared when "someone else's problem" becomes their problem.
Newly Added Resources:
- Court Strikes Down Wisconsin's Anti-Union Law - News
- Overly Broad At-Will Disclaimer May Violate NLRA in Both Union and Non-Union Workplaces - News
Criminal History Background Checks and Other Hot Issues
For employers, 2012 can be summed up in one word - change. Each year brings about new employment laws and resulting evolution in HR strategic practices. However, 2012 has been particularly challenging both in the degree and amount of change. From the shrinking background check to relatively new considerations (for instance, workplace bullying) employers are being required to update and amend workplace practices at a seemingly impossible speed.
Some 2012 trends, include:
- Fair Credit Reporting Act (including criminal background checks);
- Workplace Bullying (with 21 states having introduced legislation);
- Religious Discrimination;
- Retaliation;
- Pregnancy Discrimination (with almost 6,000 claims filed with the EEOC in 2011); and
- The National Labor Relation Board's increased focus on social media.
Employers may find helpful, up-to-date information on each of these trends in XpertHR's employment law manual and by consulting the newly added resources below.
Newly Added Resources:
- Hot Trends to Watch Affecting the HR Arena - Editor's Choice
- New Ohio Law Limits Employer Liability in Hiring Employees With Criminal Histories - Legal Timetable
Employees With Disabilities and the Cat's Paw
The phrase employees with a disability conjures up a host of different compliance issues. Not only must employers consider the Americans With Disabilities Act and the federal Family and Medical Leave Act, but also applicable state laws that may afford employees rights or benefits greater than those provided under federal law. In addition, these laws are constantly changing on both the federal and state levels.
Understanding the interplay (relationship) between state and federal laws is imperative. As a general rule of thumb, when facing a disability issue, employers should:
- First, consider what laws are relevant to the particular set of facts.
- Second, ascertain what the employer is required to do under each law.
- Third, where the laws require employers to provide different rights or benefits, comply with the law providing employees with greatest possible rights or benefits.
If an employer complies with one law, but fails to comply with another applicable law, it may be liable. In some cases, supervisors may be individually liable and in others employers may be liable even if they innocently acted on the advice of a biased employee. The latter theory of liability is referred to as the cat's paw.
Newly Added Resources:
- The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight
- A Multistate Employer Victory: Only Connecticut Employees Must Be Counted When Determining Company is an "Employer" Under the CFMLA - News
- The 7th Circuit Changes its Position on Assigning Employees With Disabilities to Vacant Positions - News
- How to Assess Whether an Employee's Request for Accommodation Is Reasonable
- How to Determine if an Employee Is Disabled
- Employers May Be on the Hook Under the Cat's Paw Theory of Liability - Law Report
- Key Cases in Determining Whether Damage Awards Are Subject to Employment Taxes - Law Report
Employee Compensation and Payroll
The Fair Labor Standards Act is a dangerous web that more and more employers are getting caught in. As the United States Department of Labor has upped its enforcement efforts and personnel, proactive employers are upping their compliance efforts. Therefore, now is an excellent time for an internal HR audit. At minimum, employers should consider auditing their practices and recordkeeping with respect to employee compensation and payroll, including wage frequency, rate and deductions.
Newly Added Resources:
- Oregon Minimum Wage to Increase to $8.95 per Hour in 2013 - News
- Oregon Minimum Wage to Increase to $8.95 per Hour - Legal Timetable
- More Wage Deductions to Be Permitted in New York - News
- 8th Circuit Rejects DOL's Argument Against 'Reasonable' Time Standard for Donning and Doffing - News
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