Employment Law Update

Michael Patrick O’Brien
November 4, 2008 | COMMENTS

National SHRM has identified its top ten political and legislative trends most likely to have a major impact on the workplace. Here they are:  (1) federal health care legislation; (2) state health care legislation; (3) growing complexity of legal compliance for employers; (4) implications of the outcome of the 2008 U.S. presidential election; (5) Social Security program reforms; (6) increase in employment-related government regulations; (7) proposed immigration laws in relation to H-1B visas and high-skilled foreign workers; (8) proposed immigration laws that prosecute employers for hiring illegal/undocumented workers; (9) legislation promoting health benefits portability; and (10) increase in the legal retirement age.

Legislative Update

The economic rescue plan (aka as the Wall Street bailout plan) contained an important employment law provision. The bill extends the Mental Health Parity Act. The Act prohibits employer group health plans from imposing limitations on coverage for mental illnesses that they do not impose on physical illnesses. At the end of September of 2008, President Bush signed a bill that extends the funding for the E-Verify program, the government's electronic verification system. The program was set to expire on November 1, 2008 but now will continue through March of 2009.

New Identity Theft Regulations

On November 1, 2008, new identity theft regulations go into effect, some of which apply to employers who are users of consumer reports, i.e. background checks, performed by third parties under the Fair and Accurate Credit Transactions of 2003 (FACTA).

The new regulations require users to implement a written policy to respond to any notices of address discrepancy received from a credit reporting agency (CRA). The policy must be designed to help a user form a reasonable belief that the report from the CRA matches the person about whom the background check was performed. You can read more about
these regulations online here. A recent news article noted that the workplace is the site of much identity theft, notably financial information, driver licenses, Social Security numbers, and medical information. Employers should develop and implement a policy and plan to protect such information and reduce the risk they will be held liable if/when identity theft occurs.

Employee Handbooks

Have you had your employee handbook updated and given a legal review lately? It might be time to do so, given a lot of employment law changes over the last year.

Ten Commandments of Hiring and Firing

This is an oldie, but a goodie. For hiring:

• Follow closely all relevant company policies related to hiring, such as application and offer process, interviews, and EEO. If you do not have any such policies, get some and train all persons who are to use them.
• Be aware of relevant state and local laws, as well as national ones (e.g., San Francisco city ordinance precludes discrimination based on sexual orientation, Florida based on marital status, and Wyoming based on tobacco use).
• Learn about and train all employees to avoid inappropriate inquiries.
• Be consistent in your decisions to avoid allegations of disparate treatment.
• Act on the basis of job-related factors.
• Document such things as eligibility to work in the United States after job
  offers.
• Carefully verify the legality of and business justification for any pre-employment testing (drugs, psychology, etc.).
• Use at-will statements and contract disclaimers on application forms and offer letters and avoid statements re: job security, probationary periods, tenure, and reasons for discharge, unless you intend to create a contract, which should be done in writing.
• Do not make promises you may not be able to keep (e.g., "We will review your application against future openings").
• Be humane and professional. Revenge is the motive for many employment lawsuits.

For firing:

• Follow closely all relevant company policies related to discharge, e.g. termination, progressive discipline, and EEO.  If you do not have any such policies, get some and train all persons who are to use them.
• Do not act alone. Two heads are better than one. Two witnesses are better than one. Avoid the "he said/she said scenario" played out by Anita Hill and
  Clarence Thomas.
• Never act out of anger. Wait until you are no longer angry and investigate thoroughly before deciding what to do. In an emergency, suspend (with pay for exempt employees).
• Do not give assurances of job security or long-term employment. Otherwise you may be creating contracts. If you have a contract, follow it.
• Honestly and fairly evaluate employees and performance reviews during performance reviews and document the same. In other words, be proactive in trying to avoid problems before it is necessary to terminate.
• Act based on job-related factors, not on personality or other factors not related to the job.  
• Be consistent. Discrimination claims thrive where similar circumstances are not treated similarly.
• Be reasonable in establishing expectations of your employees and give clear notice of the same.
• Document your decision in writing. Remember that whatever you write will be "Exhibit A" in any lawsuit.
• Be humane and professional. Many lawsuits are filed for reasons of revenge.

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.