By Leslie Zieren, Esq.
Consultant to this Program
New Year’s resolutions have been around since 153 B.C., at least. A mythical king of early Rome, Janus (yes, that’s where “January” comes from) was placed at the beginning of the Roman calendar. Janus had two faces—one looking back to the past and the other forward to the future. Thus, Janus—and January— became the symbols for resolutions.
According to www.10millionresolutions.com, the top ten general resolutions, in order from the most popular, which is losing weight and getting in shape, include: sticking to a budget, reducing debt, spending more quality time with our favorite people, finding a soul mate, quitting smoking, finding a better job, learning something new, and volunteering to help others.
Resolutions in the workplace tend to focus on avoiding liability. As 2008 draws to a close, it is time for organizations to take a wise look at the future. This article will disclose ten of the top issues your organization, managers, and employees should keep in mind as 2009 begins. If these resolutions are kept, your organization can reduce the likelihood of employee claims and increase employee retention.
Resolve to become familiar with the sweeping changes to managing employees with disabilities under the ADA Amendments Act of 2008 (ADAAA).
Effective January 1, 2009, the ADAAA has five major changes, which will increase the number of employees and applicants who qualify for protection under the federal disability laws. Briefly, these changes are:
- A change from the conservative approach to its interpretation and application the courts have used in the past to a new statutory mandate for an expansive approach to coverage.
- An expansion of the definition of “disability” that legislatively reverses the U.S. Supreme Court’s 1999 ruling in Sutton v. United Airlines. Now, under the ADAAA, the effects of medication, treatment or other devices are not to be considered in determining the existence of a disability.
- The term “major life activity” has been expanded, and the ADAAA contains a list of major life activities and major bodily functions.
- Liability based on being “regarded as” disabled, even if an employee/applicant is not, has been expanded in that a plaintiff need only show that the employer regarded the individual as having impairment. A plaintiff no longer needs to show that the employer erroneously believed he or she was substantially limited in a major life activity.
- The EEOC is directed to revise the meaning of the term “substantial limitation” such that the definition will lower a plaintiff’s burden of proof under the law.
Learn about the EEOC’s new guidance for workplace religious accommodations.
In July, 2008 the EEOC issued two new compliance manual sections in response to a rise in charges of religious discrimination and an increase in workplace religious diversity. These sections are “Best Practices for Eradicating Religious Discrimination in the Workplace” and “Questions and Answers: Religious Discrimination in the Workplace.” They can be found at:
Become familiar with the new Department of Labor regulations for Family and Medical Leave Act compliance.
The changes to the FMLA regulations announced in February 2008 have now been finalized to take effect in mid-January, 2009. The regulations (over 700 pages) can be found at:
In the meantime, here is a sample of the changes:
- The Department of Labor has defined “qualifying exigencies” under the regulations affecting employers who employ reservists or National Guard members. “Qualifying exigencies” are: (1) short-notice deployment, (2) military events and related activities, (3) child care and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.
- While the new regulations keep the original definitions of “serious health condition,” the revisions provide that if an employee is taking leave of more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the incapacity. And, for chronic serious health conditions, the regulations define “periodic visits to a health care provider” as at least two visits to a health care provider per year.
Update your job application and hiring process.
It all begins with the hiring process. A good one can decrease turnover and the risk of employee lawsuits, while one that is not well thought out can be disastrous.
A few important things to remember are:
- Screen all employees and volunteers in your workplace. Make sure you use a reputable background check company because if it violates the law in the process of conducting a background check, your organization could be held liable, too.
- The federal Fair Credit Reporting Act has detailed requirements relating to employers’ use of certain background information gathered on employees or prospective employees. Consult with your counsel to avoid incurring liability under this Act.
- Train those conducting interviews how to do so without violating privacy or discrimination laws.
Properly classify employees as exempt or nonexempt.
Many employers misclassify employees as exempt from overtime pay when they are not. There are federal rules and state rules that must be strictly followed, and the state rules are often stricter on employers than the federal rules are. Whether an employee is paid a salary or hourly is not the determinative issue and neither is the employee’s job title.
Overtime liability can be significant because claims can be easily proven, and damages can include overtime pay going back three years, triple damages, interest, and attorneys’ fees.
Protect your organization’s confidential information.
Does your organization require employees to sign non-disclosure agreements to protect trade secrets and other confidential information? Have these agreements, as well as your non-competition and non-solicitation agreements, reviewed and updated to be sure that the information is current. Take stock of what your organization really wants to keep confidential and which employees need to sign these types of agreements.
Be ready for economic-driven changes.
Many organizations are experiencing financial stress in light of the global economic breakdown. Your organization may need to cut jobs, shut down departments, or close completely.
When choosing who to terminate in a downsizing situation, you must pay strict attention to the protected class status of employees to be terminated so your organization can avoid discrimination claims. If you end up choosing to terminate, for example, only employees over 40, your organization could be sued for age discrimination. You may have used other criteria to determine which employees will be let go, but if the result is a disparate impact on a protected class, this could still lead to discrimination liability.
Releases of liability in separation agreements must be reviewed by counsel to make sure they comport with the law, particularly when terminating employees age 40 or older.
Is your entire business shutting down completely? In that case, contact your legal counsel. You may be subject to certain laws that require employee notice and other considerations to avoid statutory penalties.
Redistribute your harassment policy.
Redistribute your harassment policy to each employee and volunteer in your workforce each year and every time it is amended. Train all your employees on every aspect of the policy at least once a year, and, should your organization have claims, despite your best risk management efforts, after every claim.
Consider specialized manager training, too. Reviewing the past year’s legal cases with any changes in the law can help to avoid liabilities. The more tools the managers have learned to use in managing difficult people or situations, the fewer claims your organization should have.
Review and update your employee handbook.
An out-of-date or poorly drafted handbook can result in claims and litigation. Have your organization’s handbook reviewed and updated. Make sure it does not create any unintended obligations in contravention of the employment at will doctrine. Have each employee sign an acknowledgment that certifies he or she has read the new version.
Stick to the policies!
Stick to the policies in your handbook. If they become unworkable, change them. Make sure you have language in your organization’s handbook that allows for amendment to the policies at the pleasure of the employer, with or without notice to the employees.
Policies not followed can cause liability. If an employee must be immediately terminated, for example, a progressive discipline policy can be particularly troublesome. If it does not contain language that allows the employer to skip all the progressive steps and terminate an employee, if appropriate, immediately, failure to follow the policy can lead to liability.
