Morris County SHRM's 8th Annual Conference Addresses Hot-Button Issues for Employers
Author: Melissa A. Silver, XpertHR Legal Editor
July 24, 2015
The one-day conference sponsored by XpertHR, ADP and Strategic Benefit Services addressed current pain points for HR professionals including background checks, immigration compliance, LGBT issues and employee leaves. New Jersey and New York employment law updates provided numerous tips and advice on how HR professionals can manage their workforce in light of the ever-changing landscape of employment law.
The conference kicked off with a session entitled "Background Checks: A Minefield of Potential Liability" presented by Kathleen McLeod Caminiti, Partner in the firm's New Jersey Office. Caminiti focused her presentation on the Fair Credit Reporting Act (FCRA), noting that there has been a litigation explosion of FCRA actions and highlighting certain FCRA pitfalls in a recent sampling of lawsuits.
Caminiti advised employers to ensure that the notice sent to a job applicant or employee that a consumer report may be obtained is a stand-alone document. She recognized that this seems counterintuitive to "our sense to combine and synthesize," but that it is required under the FCRA rules.
Medical Marijuana and More
Gregg H. Salka led two informative sessions on the trending topics medical marijuana, e-cigarettes and "bring your own device" (BYOD). Salka discussed whether an employer needs to accommodate an individual's use of medical marijuana in the workplace. Salka also addressed how employers should approach e-cigarette use in the workplace in light of their recent rise in popularity.
Implementing a BYOD policy invites risks regarding wage and hour issues, the leaking of an employer's confidential information or violating an employee's privacy rights. An employer could take various approaches to limit its exposure to such claims, such as:
- Restricting BYOD usage to certain employees (e.g., exempt employees only);
- Monitoring BYOD usage after informing employees of the monitoring practices in a BYOD policy; and/or
- Installing software on devices to "wipe" them if they become lost or stolen in order to prevent a data breach.
NLRB and Handbooks
Rosemary S. Gousman, Regional Managing Partner in the firm's New Jersey Office, led a discussion on the National Labor Relations Board (NLRB) and its impact on employee handbooks. In particular, Gousman focused on the language in the following policies that the NLRB General Counsel has found to be unlawful:
- Employee conduct; and
- Restrictions on employees leaving work.
Gousman advised employers to ensure that handbooks clearly state that nothing in the handbook should be construed to interfere with an employee's right to engage in protected concerted activity.
Gousman also advised that context matters. If a confidentiality policy broadly includes employee or personnel information, then it may be interpreted as restricting an employee's rights under the NLRA; but a confidentiality policy protecting business secrets may be considered reasonable.