Your 2019 Employment Law Compliance Checklist

Today is the start of the first full week of 2019. Which means it's a perfect time to take a step back and review your efforts at HR and employment-law compliance for the coming year.

This list is not mean to be complete or exhaustive, but should provide a high level look at the top 20 issues that you should be reviewing this year, and every year for your business.

What employment sins are you atoning for this year?

Yesterday was Yom Kippur, the Jewish Day of Atonement.

For the uninitiated, it is the day on which we make peace with God for all of the sins we've committed over the past year. On Rosh Hashanah God writes each person's name in Book of Life. Over the next 10 days, Jews seek forgiveness for wrongs done against God and our fellow humans. During Yom Kippur, each individual makes their personal petitions to God, and hopes for forgiveness for the upcoming year. If all goes well, when God closes the Book of Life at the end of Yom Kippur, your name remains and your soul is safe for another year.

I explain it to my Catholic children like this. Catholics (are supposed to) confess their sins each week. Jews save them up one shot on Yom Kippur. We've yet to try the chicken swinging; they're not ready for it. (I'm not sure I am, or ever will be, either).

Do you have employee-theft insurance?

The Philadelphia Insectarium and Butterfly Pavilion, a science museum showcasing one of the largest living arthropod collections in the United States, recently suffered a catastrophic loss. Crooks heisted over 80% of its collection — 7,000 of its rare insects, lizards, and snakes, valued at over $40,000.

According to The New York Times, police believe this to have been an inside job. Three current or former museum employees are the suspects. The evidence? Security-camera footage, plus staff uniforms hung from knives that had been stabbed into a wall.

Do you really want to be the employer that bans your employees from wearing Nike products?

Last week, Nike launched its new ad campaign featuring (former) NFL quarterback Colin Kaepernick. He's most famous for being the first NFL player to kneel during the national anthem. As a result, he's become a lightning rod around our national conversation about race relations. He claims the NFL has blackballed him because of his outspokenness on the issue.

I ❤️ my wife, and I ❤️ attendance policies

On August 29, 2003, I married my wife.

The ceremony was to start at 11 am, and by 10:55 I was nervous. Not your normal, "I'm about to get married" nervous, but the, "What the hell, we start in 5 minutes and my bride-to-be isn't here yet" nervous. With no cell phone on me, I just had to have faith that Colleen was on her way. Nevertheless, I was most definitely jittery.

Protecting your business from an "Omarosa": workplace recordings and the law

Omarosa Manigault-Newman, formerly a contestant on Donald Trump's The Apprentice and also formerly an employee in President Trump's White House, secretly recorded Chief of Staff John Kelly firing her.

In 38 states plus the District of Columbia, this surreptitious recording would be perfectly legal.

NLRB clarifies its new employee handbook rules

Late last year, in Boeing Co., the NLRB rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

The Board scrapped Lutheran Heritage‘s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).”

Should employers still test for marijuana?

Photo by Michael Fischer from Pexels

Ohio’s medical marijuana program is set to be fully operational by September 2018. Ohio will join 28 other states, and the District of Columbia, in which doctors can legally prescribe marijuana to treat certain medical conditions.

Ohio’s medical marijuana law does not require that employers accommodate employees’ lawful use of medical marijuana. It also permits employers still to maintain drug testing policies, drug-free workplace policies, and zero-tolerance drug policies.

Yet, with the lawful use of marijuana spreading, employers are asking if it still makes sense to test for it as part of pre-employment drug screenings.

Hair discrimination; not a thing

Give me a head with hair, long beautiful hair
Shining, gleaming, steaming, flaxen, waxen
Give me down to there hair, shoulder length or longer
Here, baby, there, momma, everywhere, daddy, daddy
Hair, hair, hair, hair, hair, hair, hair, hair
Flow it, show it, long as God can grow it, my hair

– “Hair”

Friday’s tongue in check post about the beauty of baldness got me thinking about hair and employment law.

Or, more to the point, can an employer run afoul of discrimination laws by making an employment decision based on one’s hairstyle?

What does it mean to have “work/life balance”?

What’s your definition of “work/life balance”?

To me, work/life balance means that I have the flexibility to tend to the needs of family when the need arises, and otherwise work when and where I am able.

• No school bus this morning? I’ll get to the office at 9 am instead of 7:15.
• Doctor’s appointment? No worries. I’ll leave the office at 3 and finish up what needs to be done tonight.
• Bad weather? It’s not productive to waste two hours in traffic. I’ll work from home.
• Early evening gig for the kids? I’ll pick them up from school.

An argument for a more reasonable bereavement leave policy

I’ve been thinking a lot lately about death.

These past few days have been the first time I’ve had to deal with it on a family level as an adult. And there’s a lot to think about.

And it’s not just the grieving, and the crying, and the mourning.

It’s also time.

In the spirit of #GivingTuesday, here are 7 considerations for your charitable donations policy

Today is Giving Tuesday, a global day of charitable giving, which symbolically kicks off the season for those who choose to focus their holiday and year-end giving.

How does your company support employees’ charitable endeavors?

An attendance love story

14 years ago today, my wife and I married.

The ceremony started at 11 am, and by 10:55 I was nervous. Not your normal, “I’m about to get married,” nervous, but the, “What the hell, we start in 5 minutes and my bride-to-be isn’t here yet” nervous. It was 2003, before the prevalence of iPhones. Without a cell phone on me, I just had to take it on faith that Colleen was on her way. Nevertheless, I was most definitely jittery.

Ohio looks to put enforcement muscle behind workplace concealed carry law

It’s been six months since Ohio made it illegal for employers to prohibit employees (or anyone else for that matter) from storing a firearm in their vehicles on the employer’s property. This law, however, lacks any specific statutory teeth (sort of). If Ohio legislators get their way, this omission will soon change.

A lesson on workplace posters from, of all places, Homeland

If you’re on Homeland, and operating a covert, CIA backed, sock-puppet misinformation operation, where do you hang your workplace posters? In your interrogation room, of course.

State and federal laws require that all employers have posters conspicuously placed in the workplace. 

For want of an Oxford comma

Vampire Weekend once asked, “Who gives a f__k about an Oxford comma?” The answer, apparently, is the 1st Circuit Court of Appeals, a whole lot.

In O’Connor v. Oakhurt Dairy [pdf], that court reversed the dismissal of an overtime lawsuit based on the absence of a Oxford comma in a list of activities that qualify for a certain exemption under Maine’s wage-and-hour law.

Inclement weather policies should prioritize safety over productivity

Snow day! Norah went to bed with PJs on backwards last night (and received her wish; now please use your time wisely to work on homework). Donovan is going to be pissed because tonight’s Mathmagic night at school (which he was really looking forward to) will be cancelled. And me? I’m enjoying some flexibility by working from the comfort of my kitchen island. If the storm forecast holds as predicted, however, I'll be giving myself lots of extra travel time tomorrow morning for a court appearance. #lawyerlife

What about your business?

Pets in your workplace? Assess the risks and draft a policy.

A reader recently emailed the following question:

Some people need service dogs to get to work. But many more simply want to take their dogs to work. What is the protocol? What are the HR rules on this? And what are the penalties for illegally taking a dog to work?

Are you thinking about opening up your business to employees’ pets? You will find very few resources on the internet to help. And, you will need a written policy before you allow pets in. Here are some considerations:

From the archives: Santa’s Employee Handbook

While I’d like to believe that every post I’ve ever written is indelibly embossed on the brain of every person that’s ever read my blog, I understand that readers come and go, and not everyone reads or recalls every post. As a result, sometimes it makes sense to dive into the archives to revisit a timely (and timeless) post of yesteryear.

So today I bring you, all the way from Dec. 11, 2014, Even Santa needs an employee handbook.

Common sense (sort of) prevails in Ohio over gun-owner discrimination law

Last week, I reported on Ohio Senate Bill 199 / Sub. House Bill 48, which would have elevated “concealed handgun licensure” to a protected class under Ohio’s employment discrimination law, on par with race, color, religion, sex, military status, national origin, disability, age, and ancestry.

My Twitter feed absolutely exploded with confusion and outrage. Some of the better replies: