Despite everything we’ve heard about reregulation, federal employment agencies ramped up their activity during 2018. According to early indications, employers should expect the same trend in 2019. Since it’s that time of year when we all get the “bug” to do a little spring cleaning, now is a great time to clean-up your HR department by focusing in on the following key areas that federal agencies have also been focusing in on during the course of their workplace investigations.
- Job Applications. You will want to review your job application form for several reasons. First, make sure that your job applications refrain from asking for protected information. This includes, but is not limited to inquiries regarding date of birth, age, race, color, national origin, and past workplace injuries. While there may be a job-specific reasons for seeking this information, there is a right and a wrong way to obtain such information and a blatant request for it on a job application is not permissible. Second, review your job application for inquiries regarding an applicant’s criminal background. While Texas law permits employers to obtain information regarding a prospective employee’s criminal history, federal law curtails employers’ use of such information. For example, the EEOC prohibits inquiries about an applicant’s criminal history or using arrest records to disqualify an applicant unless the employer can show the disqualification or inquiry is to further a business necessity. Employers must also remember that if they inquire about an applicant’s criminal background, they must provide an applicant the chance to explain a prior arrest as well as expressly state on the application that the fact of a prior conviction will not necessarily disqualify the applicant for employment. Last, if your application doesn’t already have a blanket disclaimer requiring the applicant to certify that the information contained in the application is true and correct and that falsification of information is grounds for refusing to hire or termination should they be hired, now is a good time to add one.
- Job Descriptions. Every job description should indicate whether the position is exempt or nonexempt from the overtime requirements of state and federal wage and hour laws. Determining whether a position is exempt or non-exempt is a fact specific analysis that requires a thorough understanding of the duties of the position and the applicable exemption tests under wage and hour laws. This spring, take the time to carefully review all of the jobs within your organization and ensure that they are classified appropriately. Every job description should also specifically identify the essential functions of that position. Providing an adequate definition of, and justification for, the essential functions of the job provide a clear foundation for establishing job expectations and for clarifying the conditions under which the job will be performed. This information can also be a helpful tool in addressing ADA, FMLA or other job-related concerns. As you are cleaning up your job descriptions, you may want to consider including a disclaimer that includes the following language: “This is not necessarily an exhaustive list of all responsibilities, duties, skills, efforts, requirements or working conditions associated with the job. While this is intended to be an accurate reflection of the current job, management reserves the right to revise the job or to require that other and/or different tasks be performed as assigned”.
- New Hire Paperwork. In addition to the paperwork and company specific forms that you have all new-hires complete, you need to ensure that your new-hire packet and/or onboarding paperwork includes the following forms that are required by law. Most employers are aware that an I-9 form is required for all new employees in order to confirm that they are authorized to work in the United States. However, many employers are unaware that the form itself, changed in 2017 and that the failure to use this form, in and of itself, can be grounds for I-9 violation. Make sure that you are using the latest version of the I-9 Form 7/17/17 N as all U.S. employers should have transitioned to the updated version of the form by September 17, 2017 which can be downloaded directly from USCIS. Section 18B of the FLSA, (added by section 1512 of the Affordable Care Act) generally provides that, employer must provide each employee written notice at the time of hiring that informs the employee of their coverage options, regardless of plan enrollment status, and the existence of the health insurance marketplace. To satisfy the content requirements for FLSA section 18B, model language is available on the DOL’s website. There is one model for employers who do not offer a health plan and another model for employers who offer a health plan or some or all employees.
Department of Labor Models
Employers may use one of these models, as applicable, or a modified version, provided the notice meets the content requirements of the FLSA.
- Personnel Files. Each employer may have its own unique employment record maintenance practices. Personnel records can be maintained in paper form, scanned or completed and maintained electronically. No matter what format is used, the maintenance, security and retention requirements are the same. As you consider purging old personnel files this spring, please do so in accordance with the federal record retention requirements that apply to various types of employee records. In addition, make sure that your organization’s personnel files are organized in a logical manner so information is easy to find and that legally protected information is maintained in accordance with applicable laws and regulations. For instance, the Americans with Disabilities Act (ADA) requires that medical records, including FMLA and Worker’s Compensation records, are maintained in a separate file that is confidential and stored in a locked cabinet. However, many employers are unaware of this requirement and end up throwing everything into one file which subsequently opens up the door to all kinds of legal liability. While medical records are the only records that are legally required to be separated from the others, I would suggest keeping I-9 documentation and grievance/investigation documentation in separate files as these files also contain highly confidential and/or sensitive information that a decision-maker in the organization should really not have access to and by separating these records from those records that a decision-maker has access to, you can help insulate your organization be able to defend against claims of discrimination or retaliation.
- Employee Handbooks. No matter how well –written your handbook may be, as laws and regulations continuously change, the need to revisit and update handbook in order to accurately reflect current laws and regulations becomes more important. In recent past, much as been made regarding the National Labor Relations Board (NLRB) exercising authority over employers handbook policies. But on June 6, 2018, the NLRB’s general counsel (GC) issued an advice memorandum on the new standard for analyzing whether a work rule violates employees’ rights and things appear to be shifting to a more employer-friendly direction. Thus, the time is ripe for employers to reconsider their policies regarding civility, photography/recording, insubordination, disruptive behavior, confidentiality, disparagement, and conflicts of interest, among others. The #MeToo movement has also shone a spotlight on equal employment opportunity, sexual harassment, gender discrimination, and retaliation in the workplace. As a result, employers may want to carefully review their policies on these subjects, including their complaint and investigation procedures. Harassment policies can include prohibitions against harassment based on any legally protected category in addition to addressing sexual harassment. In addition to making sure the policies are up to date from a legal standpoint, also need to make sure that the policies are adequately communicated, applicable and aligned to your specific organization and actually enforced in workplace.
There are probably other areas within your organization that could use time and attention this spring, but the five areas mentioned above are the best place to start spring cleaning as they are all areas where you organization may experience financial and/or legal exposure if they are not in order.
Article Authored by Christine Vizcaino