Employer To Do List for the New Year (2014)
February 18, 2014
As the new year is getting under way, employers should consider placing these developing issues at the top of their to do list:
Social Media Policies
Employers should consider reviewing and updating social media policies in light of recent legislation and litigation. For example, more than a dozen states, including California and Colorado, have passed legislation prohibiting employers from requesting employee passwords to social networking sites. An employer should consider whether this limitation is applicable and needs to be addressed through its social media policy. In addition, many recent court decisions have addressed ownership of social media accounts when it comes to potential misappropriation of trade secrets following an employee leaving the company. As a result, it is important that the social media policy clearly sets forth which social media assets and accounts belong to the company and which belong to the employee. The continued rise in social media use makes it vital for the employer to keep on top of new developments and consider revising its social media policy accordingly.
Arbitration Agreements and Class Action Waivers
Employers should consider whether to adopt mandatory arbitration agreements with class action waivers. The prevalence of class and collective actions has not gone away. Courts, however, have become more inclined to enforce arbitration agreements with class action waivers—which may effectively prevent employees from bringing many class and collective actions against their employer. In fact, the U.S. Supreme Court has generally endorsed arbitration agreements in various contexts, including employment. In addition, many circuits have found mandatory arbitration agreements with class action waivers are permissible and enforceable. Potentially barring class actions for wage and hour, discrimination and other labor and employment claims could greatly reduce potential exposure and would result generally in a more speedy and less costly resolution of employment claims. As a result, employers should consider reviewing their arbitration agreement to confirm it has a class action waiver or, if an employer does not yet have an arbitration agreement, it should consider implementing one.
Bring Your Own Device (BYOD) Policies
As technology continues to develop, the use of technology and electronic devices in the workplace grows. As a result, more businesses are adopting BYOD. In considering whether to implement such a policy, employers should consider balancing technological convenience and cost savings against confidentiality, trade secrets and potential Fair Labor Standards Act and state wage and hour issues. Whether a specific BYOD policy is implemented or not, employers should consider revising confidentiality agreements to better protect intellectual property and human capital assets based on the constantly changing technology, particularly where employees are using their own electronic devices in the workplace.
Expanded Definition of Disability
In May 2013, the U.S. Equal Employment Opportunity Commission issued an expanded definition of “disability” under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) to clarify which illnesses provide individuals with protection under the law. Specifically, the expanded definition now includes cancer, diabetes, epilepsy and intellectual disabilities. Individuals can now show they have a disability in one of three ways: (1) he or she has a physical or mental condition that substantially limits a major life activity such as walking, talking, learning or normal cell growth; (2) he or she has a physical or mental condition that is expected to last six months or more, and the condition limits a major life activity; or (3) he or she has a history of a disability, such as cancer. The expanded disability definition broadens the number of people entitled to protection and thus, if an employer is not aware of this expansion, it may open itself up to potential costly litigation.
Expansion of Family Medical Leave Act (FMLA)
The FMLA offers job protected leave to certain employees for the birth or placement of a child, for an employee’s own serious health condition, for the need to care for a family member with a serious health condition and for certain situations involving veterans. Importantly, in 2014, the definition of “spouse” encompassed within “family member” was broadened to cover same-sex spouses if the marriage is recognized under the laws of the state in which the employee resides.
Right now 20 states including Arizona, California, Colorado and Nevada, and Washington D.C. have medical marijuana statutes. In addition, Colorado has now legalized marijuana for recreational use for persons over the age of 21. There is no requirement that employers allow employees to be impaired at work or allow employees to use or possess marijuana at work. However, there are few clear answers on what an employer whose state legalizes medical use of marijuana can do if they have an employee who is medically using marijuana with a prescription. This raises significant questions for employers regarding enforcement of their drug-free workplace policies—especially considering that federal law still prohibits marijuana under the Controlled Substances Act.
Fair Credit Reporting Act (FCRA) Litigation
Numerous class actions were filed in 2013 against employers for alleged violations of the FCRA based on hiring practices that allegedly failed to comply with the FCRA’s background check requirements and procedures. This litigation can be costly—a national retailer recently reached a $3 million settlement of a FCRA class action based on alleged technical violations of the FCRA. The FCRA regulates both what employers must do before they obtain a consumer report regarding an applicant or employee from a consumer reporting agency and what the employer must do if they decide to take adverse action against an individual based in whole or in part on information contained in the consumer report.
To help ensure compliance with the FCRA, employers should consider the following actions: (1) arrange for privileged review of their background check consent forms and (2) implement procedures to ensure proper documentation is timely provided to applicants, including pre-adverse action notices and adverse action notices.
While adding policies to a handbook or revising them is simple, actually implementing these changes is the key. Employers should consider checking that their handbook is up to date and that their company is complying with all of these changes and any state-specific updates and changes in the law.