Monday, January 12, 2015

Five for ’15: The legal issues that need to be on your radar

Personally, December is my favorite time of the year. I love the joy and togetherness of the holiday season. Professionally, however, I love January. After we’ve decked the halls and sung the last bars of Auld Lang Syne, companies get back to work, including the work of managing their most important asset—their employees.

Now that business is back in session, employers need to figure out the issues that will keep them up at night over the next 12 months. And that’s where I come in. My phone will start to ring as employers realize that they haven’t updated their handbook since the (first) Bush administration, of haven’t conducted harassment training since before Anita Hill made sexual harassment a household phrase.

What are the hot-button employment law issues that will keep your HR department busy over the next year? Let me offer five suggestions.

     1. Cyber-Security. No business is safe from the risk of a cyber-breach. The question of whether your business will suffer a breach is one of “when” and not “if.” Those looking to exploit your business and its information will attack your weakest point—your employees. A misplaced iPhone or laptop is a hacker’s key to your cyber-kingdom. Do your employees know what to do if their device is lost or stolen? Do they know to avoid unsecure Wi-Fi? Do they understand the risks associated with a loss of trade secrets or other confidential information? Are key employees locked down with confidentiality and non-competition agreements? Unless you can answer “yes” to each of these questions, you are taking a huge risk with your data. Be proactive in 2015 with your cyber-security by investing in prophylaxes to limit the risk of a breach. Creating a culture of security in your business will be the best money your company spends this year.

     2. Vaping. “Vape” was the Oxford Dictionary’s word of the year for 2014. For the uninitiated, vaping is the practice of using e-cigarettes to deliver tobacco through a heating element to vaporize a liquid solution that includes a concentration of nicotine. Because these vaporizing devices do not contain tobacco, most state workplace smoking laws do not regulate them. Thus, it is up to individual employers to determine the pros and cons of e-cigarettes for their workplaces and to adopt a policy that reflects that position. Yet, laws that prohibit smoking in the workplace are a floor, not a ceiling. You are free to ban these devices in your workplace, and should consider doing so, as the associated health risks are undetermined.

     3. Same-sex relationships. Congress has been slow to amend Title VII to expressly prohibit LGBT discrimination. With the Republicans now controlling both houses of Congress, this trend is unlikely to change any time soon. It is offensive that, in 2015, it is still legal to discriminate against any class of people. Employers should not wait for Title VII expressly to include LGBT as a protected class. Instead, employers can, and should, do right by all of their employees by adopting progressive anti-discrimination policies that make it clear that they are employers are inclusion for all employees, even if Title VII, on its face, still permits discrimination against some.

     4. Overly active federal agencies. Social media. Wellness programs. Criminal background checks. These are just a few of the issues that the feds have on their radar. President Obama’s labor and employment legislative agenda may have been a big dud, but that has not stopped the EEOC, the NLRB, and the DOL from picking up the torch and running with it. Employers, be afraid.

     5. Pregnancy leave rights. In 2015, the U.S. Supreme Court will decide Young v. United Parcel Service, which will address the issue of whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with medical limitations to provide similar accommodations to pregnant employees who are similar in their (in)ability to work. UPS, which had previously refused to provide these accommodations to pregnant workers, has already amended its policies to make light duty available to pregnant employees with lifting or other restrictions to the same extent such work is available to employees with on-the-job injuries. This policy change is consistent with EEOC guidance published on this issue last summer. Stay tuned, as this issue promises to help shape the national debate over work/life balance and working parents.

Happy 2015! Cheers to a litigation free year.

This post originally appeared in the January 2015 issue of Workforce.

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