Employment Law Blog Carnival – Small Business Edition
This month, I host the Employment Law Blog Carnival (“ELBC), a collection of the most current and best workplace blogs in one article.
Each ELBC update centers on a theme. This month’s theme celebrates National Small Business Week, which just occurred from May 12through May 16, 2014. Since 1963, National Small Business Week recognizes small businesses and their contributions to the US economy. The week resulted in recognition of small businesses around the country and a twitter hashtag (#sbw2014), with articles and comments relevant to small businesses. The week was also a time to remember past successes. For example, Apple, Inc., which has more cash on hand than the Gross Domestic Product of 2/3 of the world, started out as a small business with a loan from the US Small Business Administration.
It should be a given that any small business that wants to succeed and grow will need to develop effective Human Resources practices and comply with employment law obligations. While a business can qualify as “small” even if it has 500 or more employees, it will trigger the vast majority of employment laws once it passes the 50 employee threshold. Beyond employment law compliance, a growing business will need to implement effective practices for recruiting, retaining, and managing its workforce.
With that in mind, here is this month’s collection of workplace blogs and the concerns small (and large) businesses need to keep in mind.
Recordkeeping is not a sexy topic. It is also one that can be easily overlooked for a busy, growing, small business. But that is a mistake. Proper recordkeeping helps businesses pass the scrutiny of a government audit. Properly maintained records can also help defend against employee lawsuits. At the HR Genius Bar blog, Mitchell Quick writes that Wisconsin just reduced the recordkeeping burden for employers. In “Wisconsin Modifies Wage Law’s Recordkeeping Requirements” he writes about a change that synchronizes Wisconsin’s payroll recordkeeping requirements with the federal Fair Labor Standards Act (“FLSA”). However, he warns readers about some litigation risks that should be factored in before taking advantage of the rule change.
Businesses have been regularly turning to social media to post job openings, generate publicity for their openings, and to screen potential candidates. But some candidates may stay away from social media. Heather Bussing at the HR Examiner blog explains “Why I Killed My LinkedIn Account”. If candidates withdraw from social media sources, businesses will have to go back to traditional recruiting methods to gain the widest range of qualified candidates.
Many businesses believe, or may have heard, that they can hire and fire employees any time they want. In “Defining Employment At-Will – Ask HR Bartender Sharlyn Lauby at the HR Bartender blog explores the benefits and limits of this concept. She also clarifies how to differentiate it from “Right to Work, a separate concept that is sometimes confused with at-will employment.
Once the hiring process is complete, businesses need to introduce the new employee to the organization and provide information about the organization’s rules, values, and policies. At the CPEhr’s Small Biz HR Blog Ari Rosenstein discusses “11 Employee Orientation Must-Haves”.
Drafting Policies & Developing Practices
Which come first, employment policies and agreements or the employees? It, of course, depends on the business’ needs. A surge in business may necessitate hiring before relevant policies can be developed. Many small businesses operate without employee handbooks, preferring to have an informal culture and environment. However, as an organization grows, a business will need to implement and enforce standardized workplace policies.
At the Employerologist blog Janette Levey Frisch discusses the National Labor Relations Board (“NLRB”) and its influence and regulation over policies such as social media use and workplace confidentiality. Janette’s first blog post asks, “Will Your Social Media Policies and Practices Pass NLRB Muster?” In another post, she writes “It’s No Secret: The NLRB on Confidentiality Requirements at Work”. Both posts offer useful guidance on the restrictions the NLRB imposes on businesses and what to do to draft policies that withstand challenges from employees and the NLRB.
Some workplace policies are needed to minimize tensions and distractions. A beneficial consequence of such policies is they may limit employee behaviors that can lead to needless harassment or discrimination claims. In “Workplace Gossip: You Know You’ve Got It; So How Do You Stop It?”, Vanessa Goddard at the Employment Essentials blog highlights the harm resulting from workplace gossip and steps businesses can take to limit it.
At the Win-Win HR blog, Lorene Schaefer highlights another type of policy that businesses will want to develop and regularly revisit: Equal Pay. In “Is Equal Pay the Next Union Battle Cry?” Lorene points out that women across the country are tired of being underpaid. Perhaps they will file a legal complaint over the issue. Or they will band together to collectively address the problem. See Lorene’s post to see how easy it can be for women to start thinking along those lines.
Drafting Employment Agreements
Business owners like non-compete agreements. Many believe they are a necessity and that they have a right to expect employees to agree to one in exchange for the employees receiving employment, training, and access to the business’ confidential information. Unfortunately, courts view non-compete agreements very suspiciously and there are many obstacles to enforcing them. John Holmquist at the Michigan Employment Law Connection blog highlights a case where Quicken Loans, a large company with over 10,000 employees, was unable to enforce its non-compete agreement. Read why the agreement was unenforceable in “Quicken Loans – Part Two”.
The big issue in employee benefits this year has been Obamacare – its implementation, providing required notices, and enrollment. In a recent update, Donna Ballman at the Screw You Guys, I’m Going Home blog wrote about a major problem between Obamacare’s enrollment rules and employees’ rights to continue their employer provided healthcare coverage under COBRA (the Consolidated Omnibus Budget Reconciliation Act). Donna wrote that if an employee leaves employment and loses employer health benefits, he/she should be able to sign up for Obamacare because of special enrollment rules. However, if an employee opts for even a month of COBRA, it could force the person to wait until January 1, 2015 before being able to obtain coverage under Obamacare. This is a huge financial problem because COBRA coverage is likely way more expensive for individuals.
Read more about this concern and how Donna and others worked to fix the problem in “My Readers Change the World! ObamaCare COBRA Gap Fixed”.
Preventing Discrimination and Harassment
The bulk of a business’ risk management, workforce management, and employment law compliance problems will arise from discrimination, harassment, or disability concerns. Some of these problems are self-inflicted and the consequences well deserved. For example, Stuart Rudner at the Rudner MacDonald LLP blog writes about how Bengali speaking Muslim workers were mocked and even disciplined for speaking their native language, were forced to eat pork in violation of their religion, and forced to break a fast during the holy month of Ramadan. Stuart’s post, “Never Again – Discrimination in the Workplace”, is worth reading.
On a lighter note, Casey Sipe at the Employer’s Lawyer blog divines workplace lessons from the movies. In HR Cinema: Star Wars, Casey writes about respecting religion, supervisors who are bullies, and protecting confidential information in the workplace.
Lastly, at the Lawffice Space blog Philip Miles asks “Is Telecommuting a Reasonable Accommodation?” The Americans with Disabilities Act (“ADA”) requires business to provide a reasonable accommodation to employees with a disability, so they may continue performing their job duties. In his post, Philip explains why this question needs to be determined on a case by case basis and what information a business will need to consider before making the decision.
Minimizing Lawsuits and Legal Costs
We close this month’s ELBC with two posts that caution readers about litigation risks and the many financial costs that follow. A savvy business will focus not just on cost-cutting or maximizing efficiency but also on minimizing lawsuits, which can strain finances even if the case is won.
At the Fitzpatrick on Employment Law blog Robert Fitzpatrick discusses how opinions can now lead to lawsuits. In “Watch Your Mouth: Virginia Supreme Court Increasingly Receptive to Defamation Claims” Robert reports that in Virginia it is now possible to file a claim for defamation if an opinion is fabricated, falsely attributed to a person, or if a true statement leads to a defamatory meaning against a person. Such claims may have a chilling effect on what businesses are willing to say out loud, especially when it comes to reference checks for former employees. Might the Supreme Court’s stance also mean employees can take action against co-workers or supervisors who wrongly or falsely attribute statements to a person during an internal investigation?
At the Employer Handbook blog, Eric Meyer reports that the Fourth Circuit Court of Appeals dismissed a hostile work environment case from a worker who was called a racial slur twice in two days. In “You’ve Heard of the ‘One-Free-Grope rule. How About the ‘Two-Free-Slurs’ Rule?” Eric highlights the Court’s conclusion that while racial slurs are highly offensive, their multiple uses in two days did not create a pervasive hostile environment. Though the employer escaped liability, Eric points out that such behavior should never be condoned in the workplace and it can still lead to time, money, and resources spent defending the claim.
Even if a lawsuit arises, there are ways to rescue the situation. A negotiated settlement remains a possibility. However, the success of the negotiations depends on the approach taken by both sides. Will the negotiations take a competitive tone or a collaborative one? At The Employment Blawg Mark Toth describes the difference between the two in “The Two Types of Negotiations”.
That concludes this month’s edition of the Employment Law Blog Carnival. Many thanks to all the contributors who help practitioners and business professionals stay current with the latest trends in the workplace.
Articles are for informational purposes only and are not intended to be legal advice or create an attorney client relationship.