Review of 2012 and What to Expect in 2013

Strategic HR Management

04/10/2023 HRinfo4u 2

Federal Agency Actions

04/10/2023 HRinfo4u 3

EEOC Guidance on Victims of Domestic Violence

Oct 12, 2012 fact sheet on employer decisions regarding victims of domestic violence.◦Any employment related activity.

Non-legislative expansion of protections to victims of domestic violence or stalking under:◦Title VII◦ADA◦FMLA

04/10/2023 HRinfo4u 4

EEOC Guidance on Criminal Background Checks

April 2012, EEOC revised Enforcement Guidance on Arrest and Conviction Records (in the Uniform Guidelines).

EEOC focus on disparate impact claims due to collection and use of criminal background checks on employment actions.

Title VII does not include conviction history or arrest record as protected classes.

04/10/2023 HRinfo4u 5

EEOC Guidance on Criminal Background Checks

Targets of changes:◦Broad, uniform policies vs. narrowly tailored

policies based on “business necessity.”◦This may require “individual assessments”

based on the impact of prior criminal behavior on job performance.

◦NY State Corrections Law already requires narrowly tailored policies and an individual evaluation.

04/10/2023 HRinfo4u 6

EEOC Guidance on Criminal Background Checks

“Topics of consideration in the Guidance:”◦Accuracy of criminal records◦The “facts” surrounding the record◦Number and nature of offenses◦Age at time of conviction◦Whether bonding is required◦Work history post conviction◦Character references

04/10/2023 HRinfo4u 7

EEOC Strategic Enforcement Plan

EEOC issues 5 year plan as a way to warn employers and put them on notice.

September 2012 Strategic Enforcement Plan.◦Eliminate systemic barriers to hiring◦Protect immigrant, migrant and others◦Address emerging employment issues◦Preserve access to the legal system◦Combat harassment◦Disparate pay claims◦Facially neutral practices that create adverse

impact

04/10/2023 HRinfo4u 8

The NLRB and Social Media

The NLRB has continued its review of social media policies.◦Costco decision. Policy on using “appropriate

business decorum” OK under Section 8. Prohibition against posting of messages (damage the company, defame any individual or damage someone’s reputation) violated the Act.

◦Knaus BMW decision. Policy on “disrespectful” language violates Section 7.

04/10/2023 HRinfo4u 9

The NLRB and HR Investigations

HR practice of asking employees involved in investigations not to discuss with co-workers violates the NLRA.

Does not prevent employers from requiring confidentiality where it can demonstrate a legitimate business need.

Applies to both union and non-union employers.

04/10/2023 HRinfo4u 10

Federal Legislation

04/10/2023 HRinfo4u 11

Paycheck Fairness Act

Rejected in 2010.Would amend the Equal Pay Act:

◦Bars retaliation against employees who ask about pay disparities.

◦Grants to train women in how to negotiate salary agreements.

◦Allow employees to sue for punitive damages in cases of pay discrimination. (Lily Ledbetter)

◦Employers must justify pay disparities between men and women. (similar in nature to Section 10 requirements)

04/10/2023 HRinfo4u 12

Working Families Flexibility Act

March 2012 legislation that allow employees the statutory right to ask for a flexible work schedule.◦Work hours◦Required start and end times◦Required worksite◦Work schedule

Once a request is received, employers would have to meet with the employee and respond, in writing, within a “reasonable time” the reason for denying a request.

04/10/2023 HRinfo4u 13

Federal Credit Reporting Act Notices

1/1/13, all employers required to update their notices to reflect the new enforcement agency, the Consumer Financial Protection Bureau (CFPB).◦Summary of rights under the FCRA◦Notice to Furnishers of information◦Notice to Users of Consumer Information and

Reports

04/10/2023 HRinfo4u 14

USCIS and the New I-9 Form

August 2012 notice that USCIS will be publishing a new I-9.◦Forms and instructions would expand from 5

pages to 9 pages,◦Requirement that the form be completed “no

later than the first day of work for pay.”◦Updated list of acceptable documents.◦Email and telephone numbers of employees.◦PO boxes no longer acceptable.

04/10/2023 HRinfo4u 15

The False Claims Act

False Claims Act cases returned $9 billion to the government in FY2012.

False Claims Act prohibits companies from submitting false claims for government reimbursements.

2009 Fraud Enforcement and Recovery Act, broadens the FCA. False claims need not be made directly to the government agency but if money is spent on behalf of the government.

04/10/2023 HRinfo4u 16

What to Expect from the Obama Administration

ACA is here to stay. Regulations are coming from IRS, HHS and DOL.

Pro-employee agenda from the NLRB.◦Expansion of union and non-union concerted

activity rights.◦Scrutinizing of employer policies and

statements made by executives and supervisors interfering with Section 7 rights.

04/10/2023 HRinfo4u 17

What to Expect from the Obama Administration

Comprehensive immigration reform◦“path to citizenship” for illegal aliens.◦New I-9 Form

Heightened activity by OSHA◦Injury and illness prevention programs◦New reporting requirements

EEOC activity◦Protections for LGBT community

Supreme Court appointments

04/10/2023 HRinfo4u 18

New York State Legislation

04/10/2023 HRinfo4u 19

Wage Deductions Amendment to Labor Law Section 193

November 6, 2012 until November 5, 2015.

DOL Guidance not yet available.Expands items that may be deducted from

employee pay:◦Charitable purchases◦Discounted parking or mass transit◦Gym membership◦Pharmacy purchases◦School and child care expenses

04/10/2023 HRinfo4u 20

Social Security Numbers

Tightens protections on uses of SSN, effective 12/20/12.

SSN considered “any number derived from such numbers” unless encrypted. (last 4 digits, for instance)

A person may not be required to disclose or furnish the SSN for any purpose, unless there is an exception.

04/10/2023 HRinfo4u 21

Social Security Numbers

Exceptions:◦Voluntary consent◦Required by federal, state or local law◦Used for internal investigations or fraud

investigations◦Necessary for credit or credit card transactions◦Purpose of employment, administration of a

claim, benefit or procedure related to employment

04/10/2023 HRinfo4u 22

Wage Theft Protection Act Notice

Annual Notice to employees due before 2/1/2013.

If you have changed your exempt/non-exempt classifications during 2012, you must give employees notice of the reclassification at the time of the change.

04/10/2023 HRinfo4u 23

Anticipated New York State Developments

Potential repeal of the Annual Notice under Wage Theft.

Health Workplace Bill. Anti-bullying or “abusive work environment.”

Paid Family Leave, amending the workers comp law while caring for sick family members

Fair Pay Act, similar to Paycheck Fairness Act

Gender identity protections

04/10/2023 HRinfo4u 24

Questions/Comments?