Category Archives: Checklists

2018 Labor & Employment Law Checklist

Each year, LP’s Labor & Employment Practice Group is pleased to provide a short checklist of steps that all companies should consider taking to measure their readiness for the coming year. We hope that you find our 2018 Labor and Employment Law Checklist to be a helpful guide to best practices for the year ahead.

Download the checkable PDF here. Print it out for yearlong reference, or get started right away and enjoy the satisfaction of checking some very important items off your list.

Deal with the Elephant in the Room and Conduct Harassment Training for Your Workforce. With the headlines around harassment and abuse allegations and the #MeToo and #TIMESUP movements, there is no hotter topic in employment law right now than workplace harassment. Appropriate training ensures both that your employees know how to stop harassment when they experience it and that your company can take advantage of certain defenses to claims that may come up in the future.  If your company has not conducted training in the last two years, put it on the agenda for 2018.

Decide on Your Investigation Procedures Now. When serious allegations of harassment and discrimination arise, they need to be investigated by experienced legal and HR professionals in order to get to the bottom of what really happened. Well run investigations also form another foundation in a company’s legal defense.  Because speed counts when employees raise issues, determine now which outside investigators are on your short list and how you will approach such investigations.

Determine Whether to Ask About Applicant Pay History. In an effort to eliminate gender discrimination in compensation, many state and local governments have taken steps to ban employers from asking applicants about their pay in prior jobs. For example, California’s law took effect January 1, 2018 and Massachusetts’ law takes effect on July 1, 2018.  Making things more complicated it that it’s not entirely clear which state’s law applies when the recruiting process crosses state lines.  Employers need to determine if the jurisdictions where they operate have laws of this kind and immediately take steps to change hiring procedures to account for them.

Monitor the Changes at the NLRB. The National Labor Relations Board is now fully controlled by its Republican members, and rulings are already starting to change the landscape for employers. For instance, recent decisions by the NLRB have relaxed the standard applicable to policies in employee handbooks.  Consider re-reviewing employee handbooks to take advantage of this change and be aware of how other changes at the NLRB impact your business.

Review Changing Leave Laws. One area where employee rights have continued to expand is in the area of leave laws. For instance, New York has a new law on paid family leave that took effect on January 1, 2018, and California has a law that took effect on that date expanding parental leave rights.  Many states and municipalities also have passed new paid sick leave laws.  It is important for employers to ensure that their HR teams understand these new laws and that their leave policies encompass the broader rights being given to employees.      

Don’t Let Employees Engage in Distracted Driving. When employees drive as part of their job, employers can be held liable for accidents that result from distracted driving. Laws around distracted driving are getting tougher.  For instance, Rhode Island recently passed a law banning all mobile phone use by drivers, with limited exceptions for hands-free devices.  In Washington, a new law went into effect on January 23rd that prohibits drivers from even holding gadgets at a stop sign or red light.  Be sure your policies make clear that safety comes first, appropriately address employee responsibilities while driving and give employees the right to defer calls until they are off the road. 

Is It Time to Reconsider Using Arbitration Agreements? Some employers have been reluctant to use arbitration agreements with their employees because of uncertainty about the enforceability of these agreements, particularly in situations involving class actions. Last fall, the Supreme Court head oral argument in a case that is expected to clarify the law in this area.  If this ruling ends up being favorable for employers, it may be time to reconsider whether arbitration is a better forum for resolving employee disputes.  

Be Careful Gathering Genetic Information. Employers must be careful in how they gather and use genetic information concerning employees and applicants. Congress passed the Genetic Information Nondiscrimination Act in 2008 and approximately 37 states have laws on this topic.  As of January 1, 2018, changes to the Illinois Genetic Information Privacy Act prohibit employers from penalizing employees who refuse to provide genetic information.  This law was intended to head off efforts to require employees to provide genetic information in wellness programs.

If Using Biometric Data, Make Sure You Know Legal Requirements. In 2017 we saw a large number of class actions filed under the Illinois Biometric Information Privacy Act (IBIPA) against employers whose employees clock in and out using their fingerprint or a hand scan.  These cases, which allege that the employers failed to meet the very specific requirements set out in IBIPA, are still in their early stages, but employers who use fingerprints or other biometric information for time tracking, security access, or other purposes should make sure that they understand and are complying with IBIPA’s requirements.

Review how Marijuana is Treated Under Drug Policies. Recreational marijuana is now legal in seven states, including California, and nineteen states have laws permitting the use of marijuana for medical purposes. In view of the spread of laws permitting marijuana use, many employers have re-examined their drug policies and decided to treat marijuana differently from other illegal drugs.  There are pros and cons to these changes and the right move depends to some extent on where an employer has operations, but 2018 may be the time to assess whether you are taking the right approach.

Are You Ready for a Data Breach? In 2017, nine states enacted new or amended security breach laws. Last year, updates to Illinois’ Personal Information Protection Act went into effect expanding the definition of protected information and increasing the notice obligations for breaches.  All employers should review the security safeguards being used to protect such information and also plan now for the steps that need to be taken in the event of a data breach.

Understand Pregnancy Accommodation Obligations. Under the Americans with Disabilities Act, employers have an obligation to accommodate pregnancy-related conditions. Now, however, many states are also passing specific laws requiring employers to accommodate employees who are pregnant or breastfeeding.  Illinois amended its own Human Rights Act in 2015 to protect pregnant employees, and other states have been catching up.  For instance, Vermont and Massachusetts have new laws going into effect in 2018.  Employers should be sure that as issues arise, they understand and comply with both their federal and state pregnancy accommodation obligations.

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2017 Labor & Employment Law Checklist

checkEach year, LP’s Labor & Employment Practice Group is pleased to provide a short checklist of steps that all companies should consider taking to measure their readiness for the coming year. We hope that you find our 2017 Labor and Employment Law Checklist to be a helpful guide to best practices for the year ahead.

Download the checkable PDF here. Print it out for yearlong reference, or get started right away and enjoy the satisfaction of checking some very important items off your list.

Make sure sick leave is available to care for family members.  Under Illinois’ new sick leave law that went into effect January 1, employers that provide paid sick leave for an employee’s own illness or injury must also permit their employees to use that time to care for a family member with an illness or injury.  Other new Illinois laws require that employers with 50 or more employees provide up to 10 days of unpaid leave to an employee who loses a child, and that most employers provide 4 weeks of unpaid leave to address issues related to domestic or sexual violence (greater leave is provided if an employer has more employees).  It is important to confirm that your leave policies and practices reflect these new requirements.

Be ready for new paid leave laws.  Beginning July 1, 2017, employees working in Cook County and the City of Chicago will be entitled to paid sick leave. The rules around the paid leave are somewhat complicated, with different accrual rates and carryover requirements, as well as additional paid leave entitlements when the leave is covered by the FMLA.

Be careful with “No-Fault” and Point Systems.  The laws and ordinances discussed above also prohibit retaliation against employees who take covered leave, which could expose employers who use a “no-fault” or points-based attendance system to liability.  If you use this type of attendance policy, it is important to ensure that time off covered by leave laws is not counted as a point or absence for disciplinary purposes.

Use the revised Form I-9.  There is a new, revised Form I-9 that must be used for all new hires (and any form updates).  The new form may be found at https://www.uscis.gov/i-9.

Don’t require “low wage employees” to sign non-competes.  The Illinois Freedom to Work Act prohibits employers from imposing non-compete agreements on any employee who makes $13 per hour or less. Non-solicitation agreements for low wage workers were not specifically addressed in this new law, but they will likely be a topic of future litigation. Although only law in Illinois, employers in other states should be wary of requiring low-wage workers to sign non-compete agreements, as it has been a hot topic across the country.  For instance, the New York Attorney General has been extremely critical of non-competes for low-wage employees and has publically announced various monetary settlements with employers who require low-level employees to sign non-competes as a condition of employment.

Make sure you are including “magic language” in confidentiality and trade secret agreements.  The Defend Trade Secrets Act of 2016 provides employers with new tools to protect against employees taking or misusing trade secrets.  But to take full advantage of the tools the Act offers, you must include a “notice-of-immunity” in any new or updated agreements with employees, consultants, or independent contractors that govern trade secrets or confidential information. If you have not already done so, you should revise your standard agreements and confirm that any agreement signed on or after May 11, 2016 includes the required notice-of-immunity.

Review and update social media policies and practices.  The Illinois Right to Privacy in the Workplace Act already prohibited employers from soliciting information to gain access to an employee’s social media account.  However, with amendments that became effective on January 1, the law’s reach has been extended to cover all personal online accounts and to specifically prohibit employers from taking steps that would give the employer access to employee accounts.  The amendments don’t prohibit employers from monitoring employees’ activity while at work but do set requirements for how any prohibited information inadvertently obtained is handled.  It is important that you review existing internet and social media policies and practices to make sure that they are in line with these new requirements and that you ensure managers, human resources personnel and IT staff are aware of these standards.

Analyze corporate wellness programs.  The EEOC issued corporate wellness program rules this past year that allow limited incentives for employees and spouses to participate in such programs, but that also include important privacy protections. Review any corporate wellness programs to ensure compliance with the new rules.

Understand and follow new OSHA rules.  While it is not yet clear whether the new administration will be enforcing OSHA reporting rules, the new rules regarding electronic submission of injury information are effective.  This means all employers with 250 or more employees, and employers with 20 or more employees in certain industries, are required to submit certain information electronically for posting on OSHA’s public website. The new OSHA rules also prohibit retaliation against employees for reporting work-related injuries or illnesses, and require employers to inform their employees of their right to report work-related injuries and illnesses free from retaliation.

Consider how marijuana is handled under drug policies.  As more and more states are legalizing marijuana use, whether recreational or medical, it is critical to understand the specifics of the laws in the states in which you operate and review and update your drug and drug testing policies accordingly. 2016 saw new medical marijuana laws passed in Arkansas, Florida and North Dakota, and recreational marijuana legalized in Maine, Massachusetts, and Nevada.  However, marijuana use remains unlawful under federal law.

Watch for state action to implement failed FLSA overtime regulations.  The DOL’s new overtime rules that were scheduled to take effect on December 1 were blocked.  However, some states have indicated that they plan on implementing the now-defunct proposed federal regulations (which would have raised the minimum salary threshold for the white-collar exemptions to $913/week) on the state-level.  Keep an eye on state law to make sure you’re ready for any changes that will impact your company.

California employment agreements can’t choose a different law or venue.  If you have California employees, be aware that a law signed in September 2016 prohibits the use of provisions in employment contracts that would either apply another state’s law or would require that any claims be litigated outside of California. This new standard applies to contracts entered into, modified or extended on or after January 1, 2017.  California also passed protections relating to arbitration.

New Minimum Wages. More than 75% of U.S. states have increased the minimum wage for 2017.  Some of these increases are due to inflation, but others are more targeted – including an increase by $1.95 per hour in Arizona.  Massachusetts now has the highest state minimum wage – at $11 per hour – but many municipalities have minimum wages that are even higher.

Make sure you are complying with new state and local laws.  State legislatures were very busy in 2016, resulting in many new laws for 2017.  On the immigration front, Tennessee recently joined eight other states (AL, AZ, GA, LA, MS, NC, SC and UT) in requiring mandatory use of E-verify for most private employers, while California has implemented new protections for employees around the documentation presented to establish eligibility to work in the U.S.  Both California and Massachusetts passed new equal pay laws, with the Massachusetts law being the first ever to prohibit inquiries into past compensation before an offer is made.  Several states also implemented new laws relating to background checks (CA, CT, VT), access to personnel files (CO, OR), and weapons in the workplace (MO).  And this is just a sampling.  Make sure that you keep abreast of legal developments in the areas where your company operates so that you can comply with these standards.

2015 Check-In – Have you updated your policies and documents?

Echeckarlier this year, we posted a checklist outlining key issues and action items for compliance in 2015. With the first quarter coming to a close, we want to remind you of a few important items from that checklist that required changes to your policies and practices, as well as alert you to a new item that requires immediate action.

Change FMLA policy to reflect same-sex spouses.

Effective March 27, 2015, the definition of “spouse” under the FMLA will be amended so that an eligible employee in a legal same-sex marriage will be allowed to take FMLA leave for his or her spouse. Make sure that you change your FMLA policies and practices to reflect this new definition.

Confirm employment applications and processes comply with “Ban the Box.”

As of the first of this year, Illinois employers must wait until an interview has been granted (or, if no interview, until a conditional offer of employment has been made) before asking about criminal history. New Jersey’s new law, effective earlier this month, requires companies to wait even longer. Employers hiring in these states — as well as in other states with similar laws — should ensure that employment applications do not contain criminal background questions and that questions regarding criminal background are not asked until it’s legal to do so.

Comply with new Illinois pregnancy accommodation rules and notice requirements.

As of January 1st, Employers in Illinois are required to provide reasonable accommodations to pregnant employees and applicants who ask for them, to post a notice in the workplace regarding pregnancy accommodation rights, and to include language relating to such rights in their handbooks. Make sure your team is aware of these requirements and that any necessary changes to policies and practices have been made.

Are You Ready for 2015?

checkEach year, LP’s Labor & Employment Practice Group is pleased to provide a short checklist of steps that all companies should consider taking to measure their readiness for the coming year. We hope that you find this 2015 Labor and Employment Law Checklist a helpful guide to best practices for the year ahead.

2015 Labor and Employment Law Compliance Checklist

Are You Ready for 2014?

checkLaws are always changing and can sneak up on even the most aware companies. Each year, LP’s Labor & Employment Practice Group is pleased to offer a short checklist of items all companies should consider to improve their readiness, avoid litigation, meet compliance obligations, and stay current with best practices in 2014. We hope you find this 2014 Labor and Employment Law Compliance Checklist to be a helpful guide for the year ahead.

2014 Labor and Employment Law Compliance Checklist