Segal, a partner in the Philadelphia office of Duane Morris LLP offered his tips at the SHRM Annual Conference and Exhibition, held recently in Atlanta.
Prior to 1938 we had a manufacturing economy, Segal says. In 1938, the Fair Labor Standards Act (FLSA) was enacted. With the exception of minor interim adjustments, for example, the 2004 changes regarding white collar exemptions, the law is largely untouched.
Now, in 2012, we have a service economy and the FLSA framework is outdated, but employers still have to deal. Segal recommends focusing some attention on the virtual workplace
2525? Unconscious Dreaming Worker Protection Act
Prior to 1964 it was lawful to ask an applicant:
Prior to 1964 it was lawful to terminate employee because of his or her:
Then came federal Civil Rights legislation:
Now the EEOC is focusing on adverse impact analysis applied to:
Also, Segal says, beware of a focus at the state level on:
Don’t rely on at-will, says Segal. Even the most pedestrian litigator can turn unfair into unlawful. If you don’t think it’s fair, no jury will, adds Segal.
2525? White men, a minority, will be covered by discrimination laws
Find problems before the feds do. HR Audit Checklists ensures that you have a chance to fix problems before government agents or employees' attorneys get a chance. Try the program at no cost or risk.
Pre 1935, workers could be and were abused, Segal says. Then the National Labor Relations Act of 1935 gave workers the right to organize.
However, management-labor collusion and sweetheart deals let to the passage of the Taft-Hartley Act of 1947, which made it unlawful for employers to assist, dominate, etc., a labor organization.
Because of the way the NLRB is structured, its pendulum swings as presidents change. The current Labor Board is a best friend of unions, Segal notes. Some recent decisions concern:
On social media, you can consider a carve out that says that nothing in your policy is intended to dissuade employees from exercising rights under the NLRA; however, that may not satisfy the NLRB which did say that requiring employees to be “respectful and courteous” might be “dissuading.”
An alternative is to be silent on online disparagement and respond only if unprotected comments are made. This isn’t risk free, but neither is the alternative, says Segal.
As far as union elections, says Segal:
2525? Union membership is a condition of employment.
Pre ADA, employers had the right to terminate because of the need for medical leave (subject to exceptions, for example, Section 510 of ERISA).
Then came the ADA, requiring leave as reasonable accommodation, and the FMLA, requiring 12 weeks’ leave because of serious health condition (broadly defined). In addition, there are state leave laws, both pending and existing.
Then the ADA was amended, expanding the definition of disability (Are we all disabled now?), and expanding the definition of perceived disability.
EEOC is attacking in the following areas:
Using the "hope" system to avoid lawsuits? (We "hope" we're doing it right.) Be sure! Check out every facet of your HR program with BLR's unique checklist-based audit program. Click here to try HR Audit Checklists on us for 30 days.
Need an example of EEOC thinking? Shy Bladder Syndrome may be a disability, says Segal, and just watch that catch on with employees scheduled for drug tests.
2525? Look for leave for colds:
And expect the Employee Right Not To Work Act.
In tomorrow’s Advisor, Segal’s take on harassment and technology, plus an introduction to a unique, checklist-based audit system that helps you find problems before the feds do.
If you have comments about this tip and want to post them on this page to share your thoughts with other HR Daily Advisor readers, simply enter your comments below. NOTE: Your name will appear on any comments posted.
Copyright © 2013 BLR Business & Legal Reports Reproduction in whole or in part without permission is prohibited.