The beginning of 2013 has already introduced several issues for employers to be mindful of. Employers should take note of the timely and important employment issues provided below. In general, employment laws continue to evolve, always underscoring the importance of evaluating employment policies and practices on a regular basis.
1. Recent ruling may affect employment policies. In January, the D.C. Circuit held that the National Labor Relations Board (NLRB) lacked authority to act because it did not have a quorum, as three of its five members were never validly appointed (Canning v. N.L.R.B). The decision itself garnered a significant amount of media attention, but the implications of such a ruling are even more far-reaching and affect all employers (even those not unionized). In the past year, the NLRB made particularly significant rulings regarding several employment policies, including employers’ policies concerning social media usage, confidentiality in internal investigations and the scope of non-disclosure provisions in employment agreements. To no surprise, these rulings have changed the legal landscape and necessitated many businesses to review and revise its policies. Because Canning held that three of the NLRB’s members were never validly appointed, however, all of the NLRB’s significant decisions in the last year may be called into question. While the effects of Canning remain to be seen, it will be important for business owners to ensure that their relevant policies reflect the NLRB’s changes until any such rulings are vacated.
2. Retaliation charges continue to grow. Last year, the U.S. Equal Employment Opportunity Commission (EEOC) received nearly 100,000 discrimination charges (85 percent were against private employers). In fact, 2012 marked the fourth consecutive year that retaliation charges constituted the majority of charges filed with the EEOC and the 10th consecutive year that the percentage of retaliation charges has increased. The laws relating to retaliation make it illegal to fire, demote, harass or otherwise “retaliate” against job applicants or employees because they complained to their employer about discrimination, filed a charge of discrimination or participated in a discrimination proceeding. In light of the growing number of retaliation charges against all employers, it is crucial for a business to ensure that its policies and practices do not retaliate against employees who complain of discrimination or participate in discrimination proceedings.
3. Be aware of laws governing background checks. The government remains wary of pre-employment background checks. It is particularly wary of using arrest records as a basis for employment decisions. Last April, the Commission, in a 4-1 bi-partisan vote, issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Employers should be familiar with federal and state laws relating to background checks and ensure that their policies provide adequate notice to applicants and a sufficiently individualized assessment. According to the EEOC, an arrest alone does not mean that an applicant committed a crime. Additionally, an employer’s use of criminal history information may be found to be discriminatory if (1) job applicants or employees with the same criminal records are treated differently because of their race, national origin or another protected characteristic (disparate treatment discrimination); or (2) criminal record exclusions operate to disproportionately exclude people of a particular race or national origin and the employer cannot show that the exclusions are “job related and consistent with business necessity.” To comply with federal law, employers should consider the nature of the crime, the time elapsed since the criminal conduct occurred and the nature of the specific job in question.
The examples above represent just a few highlights of key employment issues and government initiatives facing employers for 2013. Laws effecting employers and employees are always changing. For that reason, it is crucial for employers to continue to evaluate their employment policies and practices on an ongoing basis.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.