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Five Employment Practices to Move to the Front Burner this Year

By: Angelita Chavez | June 26, 2017

By: Kirti Kalra

  1. Social media policies: Most Americans currently have a social network profile on at least one social media platform. As it is impossible to monitor each employee’s social media account, when setting a policy, employers should consider the following before allowing employees to disclose their employment affiliation:
    1. Instructing employees to include a disclaimer that their online posts are personal and purely their own;
    2. Making it clear that racial, ethnic, sexual or any other type of discriminatory slurs will not be allowed; and
    3. In no way or manner are the employees allowed to discuss the financial, operational, legal, or customer experience (good or bad) issues on their social media site.
  2. In-take Procedure: Form I-9, Employment Eligibility Verification, appears to be a simple one, but our experience tells us that this is the most error prone form in a company’s Human Resources department.  To make things worse, the U.S. Citizenship and Immigration Services (the “USCIS”) is constantly revising the form, making it essential to ensure compliance.  The USCIS issued a revised Form I-9, at the end of last year. Here are key changes in the Form I-9 that employers need to become familiar with:
    1. a request for “other last names used” rather than “other names used” in Section 1;
    2. new prompts to ensure information is entered correctly;
    3. the ability to enter multiple preparers and translators;
    4. a dedicated area for including additional information rather than adding it in the margins;
    5. a new “Citizenship/Immigration Status” field at the top of section 2;
    6. drop-down lists and calendars for filling in dates; and,
    7. on-screen instructions for completing each required field.
  3. Marijuana in the workplace: Vermont became the latest state to legalize recreational use of marijuana for individuals. Unfortunately, many employers do not have adequate guidance as to its anticipated effect upon the workplace (including the viability of pre-hire drug testing and existing drug-free workplace policies, employers’ duties to offer reasonable accommodations to authorized users, and necessary changes to existing employee handbooks). Please reach out to your employment attorneys, as this is a fluid new area of employment regulations.
  4. Misclassifying employees as independent contractors: In 2016, employers faced an onslaught of issues triggered by misclassified W-2 employee.  We expect more of the same in 2017.  The consequences of wrongly classifying employees and independent contractors include significant fines, penalties, back taxes, back wages and attorneys’ fees, all of which can hamper an employer’s bank account and business.  For this reason, companies should perform a comprehensive self-audit of each independent contractor relationship to ensure that the affected workers have been assigned a proper 1099 classification (and are not simply W-2 employees in disguise).  Such a review will allow employers to be better positioned to defend (or preemptively avoid) employee lawsuits, class actions, and government enforcement actions, which can be time consuming, disruptive and monetarily penal.  Again, if you have questions about classification of employees and independent contractors, please contact your employment attorney.
  5. Employment applications and the Fair Credit Reporting Act: While employers certainly have the right to conduct background checks on prospective employees, please be mindful that the federal Fair Credit Reporting Act prohibits companies from conducting a background check unless the employee has first been provided with “a clear and conspicuous disclosure . . . that a consumer report may be obtained for employment purposes.” This disclosure should be provided in a separate, stand-alone document which consists solely of the disclosure, rather than being embedded in an employment application with releases, warranties and other boilerplate information.

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