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HR Employment Law Resolutions for 2012

The new year is off and running, but it’s not too late for human resources professionals to make a few employment law-related resolutions that should make their lives easier in 2012.

Sexual harassment policies
Boyd Byers a partner with Foulston Siefkin LLP in Wichita, Kansas, says attention to sexual harassment policies should top the list of resolutions this year.

“The Penn State debacle should serve as a wake-up call to every employer in America to resolve to devote time to carefully re-review its sexual harassment policy, revise it if necessary to ensure that it contains instructions on how to report, and mandates that every employee report any suspected sexual harassment,” Byers says. Also HR should make sure all managers are trained about what to do if they receive a report or otherwise learn about sexual harassment.

Social media and the workplace
Another hot-button issue for 2012: employee use of social media. The debate over employees’ use of social media heated up in 2011, with the National Labor Relations Board (NLRB) issuing a report on its investigations of 14 cases involving the use of social media and employers’ social and general media policies.

In four of the 14 cases, the Board’s Division of Advice found that employees were engaged in protected concerted activity because they were discussing terms and conditions of employment with fellow employees.

Byers suggests that in 2012 HR “should resolve to formulate a strategy and policy for dealing with employees’ use of social media in a way that could impact the employer.”

Classifying employees
Mark Adams
of Jones Walker in New Orleans suggests that HR professionals resolve to audit exempt and nonexempt classifications and reclassify employees if necessary.

ADA Amendments Act
The ADA Amendments Act (ADAAA) is another area employers should consider in the new year, according to Bradd N. Siegel with Porter Wright Morris & Arthur LLP in Columbus, Ohio. Since the definition of covered individual with a disability has been expanded, employers need to take a look at who might be entitled to reasonable accommodations.

Siegel says the Equal Employment Opportunity Commission (EEOC) has been aggressive in its enforcement activities related to the ADAAA. “I believe that, as a result, employers should review their employee handbooks and policy manuals to ensure that they contain a prominent ‘reasonable accommodation’ policy,” he says.

Siegel says policies should acknowledge the employer’s reasonable accommodation obligations and advise employees of the process to follow if they might need an accommodation in connection with any work-related issue or with regard to the application of any company policy, including but not limited to those dealing with attendance and leaves of absence.

Siegel reminds employers that they should make sure all supervisors and managers are aware of just how significantly the law has changed and that they must ensure that every stage of the interactive process, from the first request for possible accommodation to the ultimate resolution of the issue, is appropriately documented.

The Genetic Information Nondiscrimination Act (GINA) is another area deserving of consideration in the new year, Siegel says. Employers should make sure that the “safe harbor” language in the EEOC’s GINA regulations gets attached to any request for medical information whether in connection with a Family and Medical Leave Act (FMLA) request or as part of evaluating an employee’s request for possible accommodation.

That safe harbor language spells out that employees and applicants are asked to not provide any genetic information when responding to any employer request for medical information such as pre- and post-offer medical exams and fitness-for-duty exams.

One of Siegel’s Porter Wright partners, John M. Stephen, suggests resolving to review and update the company’s affirmative action plan and its outreach efforts for veterans and disabled individuals in anticipation of increased enforcement activity by the Office of Federal Contract Compliance Programs (OFCCP).

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