You’re just coming off a hectic holiday weekend – a good time to catch your breath and take a look at the big picture. Here’s an overview of the potential legal snares you’ll need to be aware of in the second half of 2012.
It comes courtesy of labor lawyers Richard Brann and Patrick Stanron, who spoke at the recent LEAP conference in Las Vegas.
Here are the top 10 threats HR’s facing in the coming months:
1. Retaliation: the biggest threat
Employees who can’t win a discrimination, harassment or other suit against you are finding it much easier to win retaliation claims, making retaliation the most frequent and costly case companies lose.
Best advice: “Don’t get mad, get thoughtful,” and institutionalize a cooling-off period after anyone’s made a charge.
Bonus tip: You have a whole new class of potential retaliation “suers” to worry about: those within a “zone of interest” of those making a charge, like significant others or family.
2. Harassment: Update the policy
New types of harassment claims – like workplace bullying –are exploding, so you’d be well advised to update your policy and make it more current. Then republish it to remind people.
You need to make sure it’s broad enough to encompass the non-traditional types of harassment that have caused a spate of new claims.
3. Social media: A new nightmare
Companies that already have social media policies have to update them. You’ve probably banned employees from discussing wages and other working conditions with co-workers in any forum, including on their Facebook pages.
But that’s now illegal, courtesy of the National Labor Relations Board — and its edict applies to all companies, not just union shops.
Bonus tip: Don’t “friend” the NLRB.
4. Performance reviews – again
These continue to come back and haunt companies when they become a weapon for plaintiff’s attorneys.
Best advice: Make them simple and clear and state the truth, even if it hurts. And make reviews a continuous process, not a one-time event.
5. ADA: The focus shifts
The new ADA Amendments Act (ADAAA) has shifted the focus from who’s disabled to how to accommodate. The law expanding the types of disabilities in practice stands for: “Assume Disability: Always Attempt Accommodation.”
6. FMLA/ADA conflicts
After people’s 12 weeks FMLA run out, you can’t automatically terminate because they roll over into ADA cases. You might as well start the interactive process by sending them a letter asking if they’ll need accommodation.
7. Discourage intermittent leave
Intermittent leave is supervisors’ biggest headache. Make it a priority to manage/track it to discourage abuse.
8. Avoid the new overtime trap
Don’t give any non-exempt employees company smartphones. If they check anything on it after hours, it’s entirely possible they’re on the clock earning OT.
9. Prepare for OSHA inspections
OSHA has more resources and got better at targeting inspections, so it’s a question of when, not if, your number’s up. Do a self-audit before they knock.
10. Foil any snap union election
Although a recent court decision has postponed the new NLRB “quickie election” rules, you’ve still got to be vigilant about internal rumblings of union organizing.
Best bet: Talk to staff constantly, as if you’re always in a campaign.