Top Employer Concerns for 2013

This is a guest post from our friends at Bowie and Jensen law firm.

Many employers may be surprised to learn that their personnel policies and procedures may actually violate the National Labor Relations Act, especially if they operate in a union-free environment.  Here are the top concerns employers should be made aware of in 2013. 
Employee Manual Language
Under the National Labor Relations Act (NRLA), non-union employees have the right to engage in concerted activity for themselves or on behalf of other employees with similar concerns or complaints regarding the terms and conditions of their employment.  Protected Concerted Activity can include two or more employees addressing their employer about improving pay, workplace conditions, and safety.
This year the National Labor Relations Board (NLRB) is cracking down on the language employers are using in their employee manuals regarding concerted activity.  Language that was previously considered standard may now violate the NLRA. 
At-Will Employment Policy
Some of the common “at will” language used in basic employee manuals now violates the NLRA by discouraging “at will” employees from engaging in protected concerted activity.  Previously, at-will employees were essentially signing a waiver agreeing that their at-will status could never change and thereby foregoing their rights to advocate concertedly. 
The following two examples show the common wording that the NLRA now finds non-compliant:
“I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Company’s executive vice-president/chief operating officer or Company’s president.”
“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”
The NLRB, however, has said that the following disclaimer language in handbooks is lawful:
“The relationship between you and the Company is referred to as ‘employment at-will.  That means your employment can be terminated at any time for any reason, with or without cause, with or without advance notice, by you or the Company.  No Company representative has the authority to enter into any agreement contrary to that employment relationship.  Nothing in this handbook creates an express or implied contract of employment.”
Those examples may appear that the NLRB is splitting hairs, but at least the agency has provided some guidance to employers which should insulate them from liability for unfair labor practice charges.
Social Media Policy
One of the biggest mistakes that an employer can make in 2013 is assuming their social media policy is NLRA compliant.  Many employers prohibit employees from posting comments that may be damaging to reputations of a company or employee. The NLRB recently found that such policies violated the NLRA. One thing employers can do is make sure their social media policy clearly states that it is not intended to restrict concerted activities.  The social media policy may include examples of activities that violate the policy and definitions of the terms used in the policy. 
Criminal Background Check Policy
Employers who frequently obtain background checks or consider arrest records should review their policies. The Equal Employment Opportunity Commission (EEOC) is aggressively pursuing compliance with its 2012 guidelines on when a criminal conviction can disqualify an applicant from employment and when it cannot.   In addition to the EEOC, the Maryland’s Job Applicant Fairness Act also regulates the use of credit and criminal records for employment purposes.
Fair Credit Reporting Act
Starting January 1, 2013, enforcement of the Fair Credit Reporting Act has been shifted from the Federal Trade Commission to the Consumer Financial Protection Bureau.  Employers will be required to use new FCRA forms.  These forms can be accessed at the Consumer Financial Protection Bureau’s website.
Confidentiality Directives during Internal Investigations
NLRB has declared that a broad statement to employees that the contents of a complaint and/or investigation should not be discussed with co-workers violates the NLRA.  Employers must now show that the need for confidentiality outweighs the employee’s NLRA rights.
It is possible that an open discussion regarding a complaint or other matter would cause a cover-up of the issue.  Confidentiality is more important in instances when an employee needs protection, evidence is in danger of being destroyed, or a testimony could be fabricated. 
Employers cannot simply prohibit discussions about internal investigations.  Each case must be evaluated by the above factors before employers can prohibit employees from discussion of an investigation with co-workers.
Implementation of an Effective PTO Policy
An effective Paid Time Off (PTO) Policy should be included in the employee hand book and outline various procedures; including how much notice does an employee have to give before taking PTO and how much of an employee’s PTO can be carried over from year to year.  Employers should make sure that paid leave is earned on an accrual basis and also address whether unused PTO is paid upon termination.  In most instances you can dock hourly employee’s pay and refuse to permit them to use paid leave if they fail to provide proper notice of an absence. In addition, there are also many situations when exempt employees pay may be docked for full day absences.