Employer Alert: Starting Off 2017 Right

January 16, 2017 Andrea R. Bernstein

During 2016, a substantial number of new laws and regulations were passed at the national, state and local levels.  As a result, many of the forms, procedures and policies that employers have in place may be outdated, and may no longer be in compliance with applicable legal standards. As the new year begins, employers should ensure that they are in compliance with updated laws and regulations with respect to any locations in which their employees are located, by having legal counsel review the following:

Employment Applications. Numerous cities and states have instituted new laws regarding the use of background checks in employment decisions, including limitations on referring to background checks in employment applications. In addition, state and local laws have expanded the categories of protected individuals under applicable discrimination laws, and so employment applications should be reviewed to ensure that the applications do not include any illegal questions.

Confidentiality Obligations in Non-Disclosure Agreements and Employee Handbooks. The Occupational Safety and Health Administration (“OSHA”) has issued guidance regarding specific language that should be included in confidentiality provisions signed by employees, and the federal Defend Trade Secrets Act requires that specific immunity provisions be included in confidentiality provisions, absent which employers will forfeit valuable protections of that law. Confidentiality provisions included in Non-Disclosure Agreements and in Employee Handbooks should also be updated to satisfy the requirements of recent decisions and guidance from the Securities Exchange Commission (“SEC”). Employers who fail to make these changes may face fines in SEC enforcement actions.

PTO and Paid Sick Leave Policies. More than 30 states and cities have implemented paid sick leave policies, each with their own accrual, use and carry over requirements. Current PTO and sick leave policies should be reviewed to ensure that they comply with all of these varied requirements. Failure to comply with the new laws can result in monetary penalties for each employer violation.

Workplace Posters. Due to minimum wage increases in numerous states, employers should be sure to replace existing minimum wage posters with updated versions.  In addition, new legislation in many jurisdictions requires the posting of new posters which were not previously required.  Finally, a number of federal statutes, including the Family Medical Leave Act, the Fair Labor Standards Act, and the Employee Polygraph Protection Act, have updated poster content, and should be replaced.

New I-9 Form. The U.S. Citizenship and Immigration Services (USCIS) has published a new version of Form I-9, Employment Eligibility Verification, which employers are required to use starting January 22, 2017.

To discuss review of your company policies and procedures in the locations relevant to your company, please contact Andrea Bernstein.

Andrea Bernstein is a member of the labor and employment practice at SWA and represents U.S. companies with respect to all facets of U.S. employment law. Andrea has significant experience litigating employment cases on behalf of employers, with emphasis on litigation of restrictive covenants, wage and hour matters, and discrimination, harassment, and retaliation claims. She also has broad experience in counseling HR personnel and in-house counsel on legal compliance and risk avoidance issues in the employment law context.

Andrea can be reached at 646 328 0775 or abernstein@swalegal.com

This SWA publication is intended for informational purposes and should not be regarded as legal advice. For more information about the issues included in this publication, please contact Andrea R. Bernstein. The invitation to contact is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.