Significant Employment Law Changes and Trends for 2014 and the Need to Update Related Practices, Policies

Employers constantly face legal compliance and integration challenges in today’s environment of increasingly numerous and complex employment laws. We identify some of the more significant trends and recent changes below. Employers should audit and update related policies, practices, procedures and forms.

Employee Background Checks and Interview Questions: Employers often seek wide-ranging background informationabout job applicants in the hopes of hiring the bestemployees and avoiding the next “problem” employee. There has been a significant increase in legislation over thelast several years, however, limiting employers’ ability torequest and obtain information about the creditworthinessand criminal histories of employees and job applicants. Thisincludes a push for the adoption of “ban the box” lawsprohibiting private sector employers from seeking informationabout an applicant’s criminal history until after the employerhas selected the job applicant as a potential candidate,conducted an initial interview and/or made a conditional offeror employment. We expect these trends to continue and have seen an increase in related litigation. Employers should respond by ensuring that their job applications do not request forbidden information and that their background check forms (includingforms provided to them by outside vendors)are legally compliant. They should also develop policies to ensure that they do not request background checks which, while legal in certain jurisdictions (or for certain employees), are illegal for a particular job applicant.

Employee Leave and Accommodation Laws: There is a definite trend to require private sector employers to provide specific paid sick leave benefits. This year, Jersey City, New Jersey, New York City, and Portland, Oregon, join four other jurisdictions in doing so. Even employers who already provide some form of paid sick leave benefits are likely to be affected by this trend, since many of these laws impose sick leave policies different from those typically adopted by nonunionized private sector employers.

San Francisco has also adopted a Family Friendly Workplace Ordinance, which requires certain employers to allow covered employees to request a “flexible” or “predictable” working arrangement to assist with caregiving responsibilities, and prohibits employers from taking adverse employment actions based on an employee’s caregiver status.

Many jurisdictions also expanded employee rights to take various types of unpaid leave. Notable examples include the expansion of emergency responder leave and crime victim/domestic violence leave in California, the expansion of domestic violence leave in New Jersey, the requirement to accommodate pregnancy, which may include unpaid medical leave, under New York City’s Human Rights Law, and the adoption of the nation’s first mandatory bereavement leave law in Oregon.

California is also updating regulations implementing the California Family Rights Act to better integrate them with recent changes to the Family and Medical Leave Act and its implementing regulations.

Employers should examine and update their paid and unpaid leave policies.

Employment Laws Relating to Social Media: Is ignorance bliss? Many employers have reasonable concerns that employees may be using social media to disparage them or their customers or violate anti-harassment or other policies. Other employers simply want to control their own message and ensure that employees do not represent their personal opinions as those of their employer. As of today, however, 12 states have statutes regulating employer access to social media, nine of which were adopted in 2013. At the same time, the National Labor Relations Board is also developing case law and agency guidance relating to social media issues under labor law. Employers should update related policies and should also update training programs to prevent supervisors from unlawfully requesting or requiring access to their employees’ social media.

Bring Your Own Device to Work (BYOD) Policies: Another significant issue which will continue to challengeemployers is the extent to which they can (or should) allow employees to use their personal electronic devices (such as Smartphones and Blackberries) to conduct employer business subject to a Bring Your Own Device (BYOD) policy. This is an area of law for which there is a great deal of risk and uncertainty. Employers wishing to adopt or manage BYOD policies should consult employment counsel to properly assess the potential risks unique to their organizations and to assist them, if appropriate, to adopt BYOD policies which are both practical and legally compliant.

Ongoing Wage and Hour Issues: Wage and hour law continues to be an area of rapid development and potential liability.

California will increase its minimum wage from $8.00 per hour to $9.00 per hour on July 1, 2014, resulting in a related increase of the minimum yearly salary for exempt salaried executive, administrative, and creative or artistic professional employees to $37,440.

The use of portable devices such as Blackberries and Smartphones by nonexempt employees will continue to fuel wage and hour litigation based on alleged off the clock work.

There will be a continued effort both by government agencies and through private litigation to challenge the alleged misclassification of employees as independent contractors. There will also be more litigation challenging the use of unpaid interns.

Employers should review their pay policies for nonexempt and exempt California employees and should also review their policies and practices relating to internship programs, independent contractors, and the regulation and reporting of work outside of standard business hours, particularly for employees who can and do conduct work using mobile electronic devices.

Health Care and Wellness Programs: Although the employer mandate under the Affordable Care Act has been postponed to January 1, 2016, for employers with at least 50 but less than 100 full-time employees and to January 1, 2015, for employers with 100 or more full-time employees, we anticipate that other significant changes will be announced during the course of the upcoming year and employers should continue to monitor rules relating to implementation of the Affordable Care Act. Additionally, numerous employers will adopt a wellness program this year. Employers should design Wellness programs to conform to the current federal regulations (which became applicable on January 1, 2014), and to otherwise avoid potential claims for disability discrimination.