In a practice area with as much individuality as labor and employment law, the voices of law firms inject the kind of color, insight and expertise that provide inside counsel and other legal professionals with a cornerstone of true understanding. Here, InsideCounsel brings together the voices of firms active in the space to get their take on the issues shaping the policies of workplace compliance and regulation.
EEOC keeps to its word
“The EEOC’s strategic action plan identifies preserving access to the legal system as one of its enforcement priorities. The EEOC is keeping to its word. Last July, it entered into a consent decree with Baker & Taylor, Inc., because it claimed employees were required to sign a release agreement that could have been understood to bar the filing of charges with the EEOC and to limit communication with the agency. In February, the EEOC filed a lawsuit against CVS Pharmacy claiming that its separation agreement likewise prevented employees from exercising their rights under employment discrimination statutes, primarily because the agreement does not explicitly state that an employee has the right to file a discrimination charge. There is a relatively easy way to deal with this issue: Have a discrimination charge/agency carve-out which applies agreement wide or is repeated in the types of provisions the EEOC is challenging.”
—Jim Beyer, senior counsel, Seyfarth Shaw LLP (Chicago)
Avoid the challenges of tobacco cessation programs
“Tobacco cessation programs structured outside a health plan can be problematic. Some state laws prevent employers from making hiring and firing decisions based on someone’s smoking status. It puts employers between a rock and a hard place. The law is complicated and ties your hands in some respect, but there are options and creative ways to incentivize healthy behavior. It’s a matter of walking through the steps and thinking it through, then coming up with an effective communication plan.”
—Sarah Millar, partner and vice chair of the employee benefits and executive compensation, Drinker Biddle & Reath LLP (Chicago)
Employers should anticipate more fines from ICE
“The DHS Inspector General made three recommendations for improving Immigration and Customs Enforcement’s (ICE) implementation of its worksite enforcement strategy (Form I-9 audits). From FY2009 to FY2012, ICE conducted 9,140 I-9 inspections, issuing about $31.2 million in civil penalties. The recommendations said ICE should:
Ensure consistent enforcement nationwide.
Develop a process to evaluate the effectiveness of the inspection process.
Direct ICE to provide consistent, accurate, and timely reporting of the inspections.
Employers should anticipate more fines from ICE, instead of warnings that there will be less interest in reducing assessments; and that there will be more activity in regions that tended to have fewer inspections.”
—Kevin Lashus, managing shareholder, Jackson Lewis P.C. (Austin)
Marijuana legalization and anti-drug policies
“Companies located in one or more of the 21 states that allow the use of medical marijuana need to understand the laws may affect a company’s anti-drug policy. For employers that have federal contracts or are otherwise subject to federal regulations concerning drug-free workplaces, your practices do not need to change. Otherwise, employers should expect more challenges from staff that fail drug tests but claim they weren’t impaired while working. Training programs for managers will help them recognize signs of impairment and answer inquiries regarding the use of medical marijuana.”
—Cheryl Orr, co-chair of Drinker Biddle & Reath LLP’s Labor and Employment Group (San Francisco)
Ban the box laws impact hiring practices
“New ‘Ban the Box’ laws at the state and local levels should be on every in-house counsel’s watch list for 2014. These laws are creating a complicated patchwork of requirements for employers—particularly those with employees in multiple jurisdictions—around criminal background inquiries of applicants and employees. As a result, employers need to be on their toes regarding their compliance obligations and have an understanding of how the laws impact their hiring and background check practices.”
—Michele Ballard Miller, shareholder, Miller Law Group (San Francisco and Los Angeles)