Lots of people make New Year’s resolutions: to lose weight, quit smoking, stop procrastinating, and so on. With a week left in this very eventful year for employers, now is a great time to look back at the year we’ve had with an eye toward the challenges and concerns employers will face in 2015.
More family time:
Sometime before Independence Day, the Supreme Court of the United States will decide whether and to what extent a 36-year old federal statute – the Pregnancy Discrimination Act – requires an employer that provides various work accommodations to non-pregnant employees with work limitations must do so to the same degree for pregnant employees. Earlier this year, the Equal Employment Opportunity Commission (EEOC) issued detailed guidance on these issues, and employees should evaluate their existing policies in light of what many expect to be an expansion by the Court of employer obligations toward pregnant employees.
The National Labor Relations Board (NLRB) continued to make the process of unionizing the workplace faster and easier for organized labor. On December 12, the NLRB issued its final rule for what it called the “modernization” of union election procedures. Under the new rule, elections will occur much more quickly, and employers will be required to respond even more rapidly to organizing efforts. New response deadlines will present considerable challenges to employers seeking to present workers with a comprehensive and educated choice on whether to unionize or not. Employers anticipating unionization efforts in 2015 should think early and often about the issues campaign they plan to run and enhance efforts to listen and respond to employee concerns raised through existing channels. Employers with Open Door policies should remind employees that those avenues to raise concerns remain open to them. Employers without an Open Door policy should consider implementing one.
Employers should also evaluate existing email use and social media policies in light of the NLRB’s controversial December 11 Purple Communications decision, which created a presumption that employees may use the employer’s email system on non-working time for organizing activity under the National Labor Relations Act (NLRA), and any total ban by employers on use of email on non-working time must be justified by special circumstances. Most employers are likely to have existing email policies inconsistent with the Purple Communications decision and thus likely to be deemed in violation of the NLRA.
Find a new job:
Most experts anticipate an increase in employer hiring rates in 2015, which makes now a good time to evaluate hiring practices (including background checks), job descriptions and personnel policies. Employers seeking new workers are increasingly required to work through federal and state rules that limit what information can be considered in the hiring process. Since issuing revised guidance on the issue in 2012, the EEOC has devoted more attention to the issue of employer requests for information about criminal records on initial job application forms.
Learning and volunteering:
Unpaid internships and volunteers continued to raise legal issues for employers under the Fair Labor Standards Act (FLSA) in 2014, following the Black Swan case from the prior year. Well in advance of the traditional summer intern season, employers should evaluate their internship programs and other unpaid positions to ensure they are complying with federal and state wage laws.