Employment and Labor Resolutions for the Coming Year

While the year is still young, here are 15 resolutions employers should consider:

15 resolutions employers should consider

1. Make sure your "independent contractors" are really independent contractors. Misclassification is under scrutiny by multiple agencies and plaintiffs' lawyers. A mistaken classification can lead to back taxes, back pay (including overtime), benefits liability, and penalties.
2. Review your email policies. Recent labor-board decisions emphasize that employees may have rights to use employer email systems for concerted activity. Many existing email policies, as drafted, can risk violations of labor laws and should be reviewed and revised where necessary.
3. Review your policies on social media, confidentiality, and "courtesy." Common policies that require employees to keep information confidential or to be civil can sometimes chill employees' rights to engage in protected concerted activity. Review these policies to ensure they do not unintentionally restrict lawful employee communications.
4. Review your severance agreements. Federal agencies have challenged separation agreement provisions that limit employees' ability to file or cooperate in discrimination investigations. Consider moderating provisions that could be viewed as interfering with those rights.
5. Review your leave policies and their administration. Beyond the federal family and medical leave rules, many states and localities have enacted paid leave laws. Ensure your policies comply with all jurisdictions where you operate, and consider how you handle employees at the end of leave to avoid disability-discrimination risks.
6. Audit your wage-hour compliance. Wage-and-hour enforcement is active at federal and state levels. Confirm minimum-wage compliance, prevent off-the-clock work, validate exempt classifications, and verify independent-contractor relationships. Include state and local minimum-wage rules in your review.
7. Update your EEO and anti-harassment policies, and provide training. Ensure policies reflect current protected categories and accommodation obligations, and make sure employees and managers receive up-to-date training on reporting and remediation procedures.
8. Review your use of criminal background and credit information in hiring decisions. Many jurisdictions restrict how and when you may ask about criminal history. Use individualized assessments when considering criminal records and tailor policies to your industry and the position.
9. If you're a federal contractor, confirm compliance with relevant contractor rules. Federal contractor obligations include nondiscrimination requirements and other posting, reporting, and recordkeeping rules; review those obligations and your internal procedures to remain compliant.
10. Make sure you're in compliance with OSHA injury and illness reporting requirements. New reporting rules have expanded employer obligations; verify that your reporting, recordkeeping, and workplace-safety procedures meet current standards.
11. Are your non-competes enforceable? And are you using them judiciously? Enforceability varies by state. Have your agreements reviewed to ensure they match legal requirements and current business needs, and be cautious about requiring non-competes for low-wage or hourly workers.
12. Keep monitoring state and local rules on marijuana and other controlled substances. A patchwork of laws governs medical and recreational marijuana. Although federal law still classifies marijuana as illegal, state and local protections can affect employment policies; update policies as laws change.
13. Make sure you're ready for health-care compliance and benefits changes. The regulatory environment for employer-sponsored benefits continues to evolve. Review your plans with counsel and benefits advisors and build flexibility into bargaining and renewal discussions where appropriate.
14. Review your contracts with staffing services and true independent contractors. Confirm that contracts allocate risks and responsibilities clearly, including insurance, indemnification, compliance with wage-hour and recordkeeping obligations, and training assignments.
15. Review your alternative dispute resolution policy, or consider adopting one. If you use arbitration agreements, ensure they are drafted and executed in a manner likely to be enforceable. For unionized workplaces, consider negotiating grievance and arbitration provisions that provide practical dispute resolution.

For related insurance and compliance resources, see Labor Organizations Insurance and Fair Labor Standards Act (FLSA) Insurance Overview. If you prefer direct assistance, talk to your agent.

Courtesy of David Phippen, Esq., Metro Washington D.C. Office of Constangy, Brooks & Smith, LLP.

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR and has decades of HR experience in workforce issues, risk mitigation, and compliance. For more information, contact ThinkHR.

Frequently Asked Questions

How do I know if a worker is an independent contractor or an employee?

Look at the totality of the relationship: degree of control, opportunity for profit or loss, investment in tools, permanency, and the worker's role; consider getting legal guidance for borderline cases.

What should an employer do if a wage-hour audit finds violations?

Promptly correct pay practices, compute and reimburse owed wages, and adopt improved policies and training to prevent recurrence.

Can I restrict employees from discussing pay or workplace conditions?

Many employers should avoid broad restrictions on discussing pay or working conditions because such bans can interfere with protected employee concerted activity.

Are non-compete agreements always enforceable?

Enforceability depends on state law and on whether the restrictions are reasonable in scope, duration, and geography; review agreements periodically to confirm they match current law.