The law is an evolving landscape. Here are some items to watch for in 2012.
- The continued influence of the NLRB over the private workplace — Not only is the NLRB continually making it easier to organize; it has also ventured into the social media arena, and has begun reviewing independent contractor issues (the board focuses on these issues because independent contractors can’t unionize).
- Continuing attack on the independent contractor classification — The IRS and state agencies want their tax dollars and are clamping down on 1099 misclassifications. See http://www.dol.gov/whd/workers/
misclassification/ and http://www.1099timebomb.com.
- Increasing coordination among agencies — If you misclassified someone as an independent contractor, not only can they now organize your company, but the IRS and state agencies will probably be coming after you for back taxes, failure to supply Workers Compensation insurance, overtime, and other expenses. If you have independent contractors, I encourage you to look at the Independent Contractor Training Module, which includes a report, a checklist, and more.
- Continued rise in disability accommodation claims — Because more and more Americans are becoming disabled, you can expect a continued growth in disability accommodation claims. Last year, the EEOC was very aggressive on failure to accommodate claims. For example, Verizon had to pay handsomely because its no-fault attendance policies violated both the ADA and FMLA. As always, you can get help from legal counsel and use the resources of the Job Accommodation Network. http://askjan.org/
- An increase in benefits related claims — It seems as if every employer is looking for a plan to reduce its overall benefit costs. Over the year, we’ve been questioned about all sorts of carve-out schemes, the impact of putting employees onto somebody else’s payroll, giving one group one plan and another group of employees a different plan, asking people to use their Medicare instead of company benefits, and so on. This activity is sure to generate ERISA and discrimination claims. The DOL has just updated its Affordable Care Act pages. See http://www.healthcare.gov/law/index.html http://www.dol.gov/ebsa/healthreform and Frequently Asked Questions from Employers Regarding Automatic Enrollment, Employer Shared Responsibility, and Waiting Periods.
- Social media craziness — It’s only just begun. The risk implications can be severe and immediate. Not having a well-thought out policy is a big mistake. See the Sample Policy on HR That Works and have an attorney review it.
- Restrictions on background checks — The EEOC and state agencies are clamping down on employers’ ability to obtain credit and criminal background information. Make sure you use a background check company such as Global HR Research that knows the law.