‘Tis the season for all kinds of end-of-year “top” lists. A quick online search shows lists of top songs, top news stories, top videos, and I even see one for top new species. In the law business, lawyers and writers identify top legal developments of the past year.
Here I offer a somewhat different list as 2012 comes to a close. It is not so much a year in review, in part because plenty of other people are doing that, in part because many “developments” in labor and employment law led to the same action items for employers—manage performance based on job-related criteria and document that you are doing so. Labor and employment lawyers have been telling their clients that for years. Most new liability risks for employers lead not to new advice, but to a new twist or two and increasing stakes for following the traditional advice.
Since the turn of the year is a time that we tend to take stock and reset goals, both personally and professionally, I offer to employers the following list—the top 6 low-cost but underused action steps that can help employers minimize liability. It is a combination of revisiting best practices and keeping up with new developments. I present the first three in this article; the final three will follow in the next column.
1. Focus on employee use of social media and policies that affect it. As has been well-documented, the National Labor Relations Board (NLRB) is on an unprecedented mission to scrutinize social media policies and practices of employers. This initiative is based on the theory that broadly drawn restrictive policy language might infringe on employees’ rights under the National Labor Relations Act to engage in “concerted” activity, i.e. communications relating to the terms and conditions of their employment.
The NLRB’s activity is only the tip of the iceberg, though. Few employers have caught up to the many questions surrounding massive employee social media activity, and they find themselves behind the curve when issues such as these arise:
- What are permissible and/or advisable social media connections between supervisors and people who report to them?
- Should we have a social media policy or just apply existing policies, such as appropriate workplace conduct and confidentiality, to social media activities?
- In either event, have we scrutinized those policies to minimize the risk of NLRB issues?
- What is personal, what is business, and what is a known mix of the two?
- How do we protect the company from employees’ “personal” posts that reflect on the company?
- What restrictions can we and are we willing to actually enforce?
We will continue to see new issues in this area, some issues we have not yet imagined, in 2013 and beyond. Employers need to spend some time tackling these issues, whether it is for the first time or simply staying current.
2. Make a plan for beginning to manage business information on privately owned electronic devices. Almost all employers have employees conducting business on devices the employer does not own. This most commonly occurs on smartphones and other mobile devices, though telecommuting employees working on personal computers raise the same fundamental issues for employers:
- Will you have access to information in the event it is needed in litigation, or simply needs to be preserved in the event of a litigation hold occasioned by threatened litigation?
- Is confidential information sufficiently secure?
There are many examples of the results of the failure to address these issues—litigants being sanctioned in various ways for the failure to produce information with respect to the former, and data losses with respect to the latter. Yet it seems that many organizations are not taking the relatively simple first steps on these issues.
If nothing else, in 2013 develop and agree to a simple document that employees sign that gives the employer the degree of access and control it needs over information on employee-owned devices. While there are broader discussions to be had on this topic, this simple step can be an important protective step for many employers
3. Review your use of background checks. Background checks are to the Equal Employment Opportunity Commission (EEOC) what social media policies have been to the NLRB—a clearly identified priority and area of unprecedented aggressive enforcement. Accordingly, in 2012 the EEOC issued guidelines on the use of criminal background checks. In one sense, these guidelines were not historic; they are based on the longstanding concept that the use of background checks must be job-related in order to avoid inadvertent disparate impact, primarily against minority males. However, the guidance included very specific direction that was much more restrictive on employers that has previously been the case. For example, with respect to when it is permissible to make certain inquiries, and the steps employers must take in order to make job decisions based on information obtained in background checks are much more burdensome.
Further, issues that are perceived as having to do with employee privacy seem to be active subjects of activity at the state legislative level, perhaps because those issues have not been addressed on a broad scale federally. Finally, most employers outsource background checking—and should, because it is generally most cost-efficient to do than to try to handle these matters in-house.
2013 is the time to ask two questions:
- How do our practices stack up against the EEOC guidance? In the medium term, it seems likely the guidance will be challenged and perhaps fine-tuned in the courts. So some calculated risks undertaken in consultation with counsel will be prudent for some employers. But in the short term, employers want to avoid being a target if they can help it. The EEOC is inquiring into background-checking policies and practices in cases that have nothing to do with background checks, so it is easy for an employer to unwittingly find itself in the EEOC’s crosshairs.
- Do you have a contract with third-party vendors conducting your company’s background checks that puts appropriate responsibility on the vendor to maintain practices that are current in light of federal and state law, and for errors made by the vendor that cause liability to the employer? Certainly an employer should be responsible for its own decisions, but even sophisticated employers sign form contracts with vendors that have what may be unacceptable allocations of liability.
Employers that address these three items—as well as the three to follow—will likely minimize some legal issues that are likely to be raised in 2013.