Now that the New Year’s confetti has settled, it is time to focus on the latest court decisions and federal regulations that will affect your company in 2014. Some changes began last year and it is important to stay abreast of the things that will dictate being in compliance with employer responsibilities.
From technology and labor relations, to privacy concerns and the Equal Employment Opportunity Commission’s Strategic Enforcement Plan, you want to not only understand what is happening, but also get your company on the right path for this year and beyond.
The use of social media and other technologies in the workplace will continue to raise serious issues for employers. You can expect to see increased activity from state and federal legislatures, courthouses and administrative bodies addressing the issues. There are several key developments that you and your HR department should monitor.
Laws Will Catch Up with Technology
Recent years have exposed employers who infiltrate employees’ social media profiles and personal emails. Typically, employers justified this activity by claiming they needed to make sure employees were not engaged in wrongdoing or compromising the company’s legitimate business interests. Some even request usernames and passwords from job applicants to monitor their online activity. Information gleaned from this activity would be used to make employment decisions.
Employees see this as an overreach and an invasion of privacy. Job applicants also disagree with such actions and could have a basis for discrimination if a job offer is denied or rescinded. Legally, the law is beginning to catch up with these actions by employers and could cause more problems than benefits.
The response from states is to pass restrictive laws that prohibit employers from using social media accounts to access personal information. In 2013, 10 states already passed social media related legislation and more legislation is pending in 36 other states. Because of this, you can anticipate some of these bills passing into law this year. If your state is not among the ones that already enacted such laws.
As with most things, social media privacy laws within each state vary in substance. While one state may allow certain activity among employers, another state will prohibit the same thing. How one law is defined in one state is the direct opposite in another.
Workplace Privacy is a Two-Way Street
Privacy issues can run both ways in the workplace. Not only is the law catching up with technology to deal with employer access to personal information, but consideration is also necessary for how administrative bodies access employer servers. Last year, there was a report of the EEOC accessing email servers to send an email blast to corporate email accounts of over 1,300 managerial and non-managerial employees. Without prior notice or obtaining consent from the employer, the agency decided to enlist support from potential claimants for an age discrimination class action lawsuit.
Of course, the employer sued the EEOC in federal court by citing privacy violations. In response, the EEOC has asked for a dismissal on grounds that its actions were proper. Consider the repercussions if the court rules against the employer. To what extent can federal agencies access the email servers of private corporations, possibly disrupting operations and the employer-employee relationship.
Employees might feel obligated to respond to an email from a federal government agency. Furthermore, this investigation tactic could give the EEOC access to wrongdoing that is outside the scope of the original investigation.
Threats of External Hacking
If concerns about federal government interference with your employees were not enough, there are continued threats to external hacking. Illegal access to your electronic systems could violate your privacy and put confidential employee information at risk. Regardless to your industry, employee use of social media sites on-the-job could leave your computer system vulnerable to malware and other hacking attacks.
The National Labor Relations Board has broadened its scope non-unionized workplaces with closer scrutiny of restrictions to social media use by employees. Efforts are targeting social media policies and disciplinary decisions that seemingly penalize employees for voicing their opinions about employers on social media sites.
Additionally, the NLRB wants to strike down employment policies that prohibit employees from discussing an ongoing investigation. Particularly when employers issue threats of discipline that could unlawfully infringe upon employees’ rights to freely discuss the terms and conditions of employment. With a newly confirmed Board, the NLRB is expected to devote resources to this issue and ones similar throughout 2014 and beyond.
EEOC has adopted a Strategic Enforcement Plan that uses a range of strategies to reduce and discourage discriminatory practices in the workplace. Now is the time to make sure your hiring, harassment and equal pay policies and practices cannot be considered discriminating. By using investigations, litigation, policy development, outreach, education and research, the EEOC has adopted a list of priorities that integrates enforcement efforts.
In an effort to eliminate recruitment and hiring barriers, the EEOC plans to target practices among employers that are class-based. Discrimination against anyone in a protected class – older workers, women, ethnic groups, religious groups, and people with disabilities – will be scrutinized.
Vulnerable workers such as immigrants and migrants are also on the EEOC’s priority list. Activities of job segregation, disparate pay, trafficking, harassment and discrimination policies that affect these vulnerable workers are included. The goal is to protect these workers who often are unaware of their rights or are reluctant to exercise them.
Another target for the EEOC is to address emerging issues that are developing because of changes in the employment landscape. Demographic changes, new legislation and judicial decisions will have an impact on workplace activities that could violate equal employment laws.
If your compensation plan is out-of-date, you might want to make changes as equal pay laws become more relevant in the workplace. Expect the EEOC to target compensation practices that appear to discriminate based on gender.
Employment discrimination statutes give employees the ability to exercise their rights. The EEOC plans to go after practices and policies that may prohibit or discourage action by employees against their employers. The agency believes it is important to preserve investigative efforts and employee access to the legal system.
Workplace harassment has become a renewed target as the EEOC will host an outreach campaign to prevent harassment incidents.
The Genetic Information Nondiscrimination Act was passed in 2008 to prohibit the use of employees’ genetic information for employment-related decisions. In addition, employers cannot request or require that an employee provide genetic information about themselves or family members. Part of the reason Congress passed the law was because employers were using information from genetic testing to control expenses. For example, an employer could refuse to hire a candidate whose testing revealed a predisposition to cancer to save on future healthcare premiums.
While this law protected job applicants from discrimination, it has also raised other issues of potential violation. If you need to request private health information on an employee in order to process a medical leave request, would you be in violation of GINA?
The best way to avoid liability is to satisfy the safe harbor rule of the law, which treats disclosure of information as inadvertent. Basically, you must inform your employee not to provide genetic information either directly or through a health care provider. In the event that you do receive genetic information about an employee, make sure that the necessary steps are taken to keep the information private. This may include keeping the information in a separate file.
Each employment law consideration discussed is separate in nature, yet they have one thing in common. As you prepare for a successful year in business, begin reviewing existing policies and practices that address these issues. Confidential information for your company and employees should be a priority to ensure compliance with laws and regulations that can impact how you do business.
