The year 2020 is finally behind us! We might not be able to breathe a sigh of relief just yet but the beginning of a new year is still a good time to pause and review your labor and employment law compliance for the year. COVID-19 is still with us and demanding our attention but do not let other employment law changes or annual requirements slip past. A thorough employment law compliance review will help you to avoid litigation and put your best foot forward in defending agencies charges and employment lawsuits if it occurs.
Review Employee Handbook
Changes to state and federal laws generally take effect at the beginning of the year. That makes January/February a good time to review your employee handbook and determine what policies need to be revised or added to comply with these changes. A few of the most common changes affecting employers this year include:
- Paid Leave
- Drug and Alcohol Policies
- Telework Policies
- Temporary Policies
Additionally, if you have not updated your workplace harassment policy recently, now is the time. A strong policy containing clear steps and options for reporting harassment is an important tool for creating and maintaining a professional work environment, as well as fundamental to an employer’s affirmative defense to an allegation of harassment that does not involve an adverse employment action. Known as the “Faragher/Ellerth affirmative defense,” referring to the companion cases of Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the U.S. Supreme Court established this defense if the employer can demonstrate: (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer’s preventive or corrective measures.
Schedule Required Training
As you plan your training and development activities for the year, be sure to schedule workplace harassment prevention training, which is required in some states and recommended by the Equal Employment Opportunity Commission (EEOC) for all employers. Consider adding training on diversity and inclusion, unconscious bias, and management compliance training on the Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and performance documentation. Training your managers to understand their responsibilities as agents of the employer to ensure the company engages in an interactive discussion with employees about ADA accommodations, whether the employee requests an accommodation directly or using “plain English,” is one of the best ways to avoid disability discrimination charges and focus any complaints on an internal audience instead of the EEOC, a plaintiff’s attorney, or a jury.
Review Your Employment Application
Does your current application form contain the appropriate disclaimers and disclosures required by state and federal laws in the states where you have employees? Check your application for prohibited inquiries as well. Currently 28 states ban salary history inquiries and 34 states have passed some form of “Ban the Box” or “fair chance” legislation limiting criminal history inquiries. When reviewing your application, keep in mind that a seemingly minor error can quickly snowball into major legal headaches.
- Minimum wage requirement increased in 26 states this year.
- Increases in employee count may mean you are subject to additional employment laws. For example, if you increased to 50 or more employees you are now subject to FMLA and the Affordable Care Act.
- Adding government contracts may trigger additional requirements.
Let’s hope that the year 2021 follows the old adage about March. Since it came it like a lion, may it go out like a lamb!
Jackson Lewis attorneys are available to help you understand these issues. Please contact the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance with compliance issues that can help prevent, or defend against, litigation.