HR Feels the Pain of Regulatory Pressure

Have you complained lately of headaches? Dizziness? Migraines?  Pain the neck? Pain in the ---?  It could be due in part to the whirlwind of regulatory activity adding pressure to your already congested business pathways.  
Prescription?  Take a deep breath. Then join me as we walk through a few highlights and try to create some semblance of order in this actual or perceived chaos. Proceeding in alphabetical order by topic...ready?
Background Checks - On March 10th the U.S. EEOC and Federal Trade Commission (FTC) published their first joint guidance on employers' use of background information.  Tips are provided for employers, employees and job applicants (employers may be wise to read all three). The information is not new per se, just a reminder of what you need to know as an employer and user of information you obtain from a third party vendor that provides you with these reports, a.k.a. a consumer reporting agency.  Some reminders for employers include:
  • distinguishing between the rules for consumer reports and consumer investigative reports;
  • clarifying whether the authorization is for a one-time report, such as for hiring or throughout the person's employment if hired;
  • be prepared to make exceptions to your policy and ensure that your parameters for selection are job related and consistent with business necessity; and
  • give an individual notice before you take an adverse employment action.
Dress Code - On March 6th the EEOC published an updated Fact Sheet and Q & A Guide on "Religious Garb & Grooming in the Workplace."  As above, the information itself is not new but provides reminders, practical examples and may serve as an indication for employers regarding issues that are on the Commission's radar. Through a series of 16 Questions and Answers, most with an illustrative example the guidance provides practical tips for some of the more sensitive and sometimes awkward scenarios including how to:
  • how to accommodate religious dress with health, safety or security concerns;
  • how to balance the employer's image with religious or grooming practices;
  • assign employees based on customer preferences (Tip: don't!);
  • validate that an employee's professed religion is a sincerely held belief.  
Gossip in the Workplace - Of course it's not in your workplace. But what about the other workplaces where employees gossip?  May an employer have a policy that prohibits workplace gossip (pause first; what's my favorite answer)? That's right, "it depends." In December the National Labor Relations Board (NLRB) found one employer's "No Gossip" policy to be in violation of the National Labor Relations Act (NLRA). Why?  The NLRB cites a series of prior cases finding similar policies, including those related to professional conduct over-broad and unlawful in part because they prohibited:
  • negative conversations
  • false statements
  • disrespectful conduct
  • derogatory remarks
  • disparaging comments
 "A thorough reading of this vague overly-broad policy reveals that it narrowly prohibits virtually all communications about anyone, including the company or its managers." I ask, "What has happened to workplace civility?!"  
OSHA Record Keeping - Got temps?  And if an agency temp incurs an injury while working in your workplace, who is responsible for recording and maintaining the required records under OSHA's record keeping regulations, your company or the temp agency?  If you are not sure of the answer then be sure you have read the recent guidance published by OSHA in March. Of course after reading it there is no guarantee you will know the answer then either. 
1.Clue #1: The answer know it, "It depends."  See, I don't just make this stuff up!  
2.Clue #2: It seems the answer may "generally" be your company, the client of the staffing agency. 
And stay tuned as the agency adds, "This is the first in a series of guidance documents that will be released to support the initiative to raise awareness about compliance with OSHA requirements for temporary workers." Note: The preceding only applies to those employers covered under OSHA's record keeping regulations.  Not sure if your company is exempt?
Find your company's Standard Industry Classification (SIC) Code and click here
Social Media, Employers Use of -  On March 12th the U.S. EEOC held a public hearing and simultaneous TwitterChat regarding employers' use of social media and how it may raise employment discrimination concerns.  My dear friend, colleague and defender of all that is just (do I exaggerate?) Jonathan Segal, Esq. spoke on behalf of SHRM sharing practical examples of why employers use Social Media (SoMe).  Some reasons include employee engagement and knowledge-sharing, such as having a corporate Facebook page or blog to keep employees in far-flung offices aware of new programs or policies; marketing to clients, potential customers and crisis management; and for recruitment and hiring of new employees. In fact, SHRM surveyed its members over several years and found that 77 percent of companies surveyed reported in 2013 that they used social networking sites to recruit candidates, up from 34 percent in 2008. 
On the flip side the EEOC reminded employers that "personal information-such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information... the EEO laws do not expressly permit or prohibit use of specified technologies. . . . The key question . . . is how the selection tools are used."
Lessons learned? Hurry up and wait; it'll change! What we know today will evolve tomorrow.  Between legislation, regulation and court decisions how you do what you do continues to be a work in progress. 
To read the original post on FiveL Blog, please click here
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Thanks for keeping our heads from exploding. You rock!

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