Human resources managers should have compliance concerns in an any area in which government enforcement is increasing or specifically targeting. Here are five areas that meet those criteria >>
Misclassification of Employees
Although the ruling in the Dukes v. Wal-Mart case has mitigated some of the class action risks in this area, the Department of Labor Wage and Hour Division’s Worker Misclassification Initiative is focused on employee misclassification as independent contractors. Therefore, HR professionals should ensure proper classification of employees – employee vs. independent contractor and exempt vs. non-exempt.
Social Media Policy Compliance
There has been an increase in unfair labor charges against non-union employers that disciplined employees for social media comments, which have been deemed concerted activity and that have social media policies that are too broad. Therefore, HR practitioners should work with the legal team to ensure that these policies are compliant.
Next: I-9 compliance
The Department of Homeland Security’s Immigration and Customs Enforcement has been conducting record numbers of worksite enforcement investigations, criminal prosecutions, audit notices of inspection and administrative fees. Therefore, even if your company doesn’t have concerns about employees, who aren’t authorized to work in the country, I-9 compliance is an area with significant potential financial risk employers because ICE is also reaching settlements for technical violations (completing the form incorrectly).
For example, Abercrombie & Fitch, which uses an electronic system, recently reached a $1.04 million dollar settlement that with ICE for technical violations.
Next: EEOC Enforcement
A quick glance at the EEOC’s press releases reveals that the agency is focusing more on pregnancy discrimination, disability discrimination, and retaliation claims.
One of the EEOC Commissioners, Chai Feldblum played a leading role in helping to draft and negotiate the ground-breaking Americans with Disabilities Act of 1990. Later, as a law professor representing the Epilepsy Foundation, she was equally instrumental in the drafting and negotiating of the ADA Amendments Act of 2008.
Consequently, ADA compliance will become increasingly important for HR professionals because it is likely that enforcement will increase further in this area. Additionally, there have been recent initiatives by the agency scrutinizing use of credit reports and criminal histories in the hiring process. The EEOC is cracking down on policies that have a disparate impact on minorities. For example, Pepsi Beverages will pay 3.1 million to settle charges of race discrimination for using criminal background checks to screen out job applicants that were arrested, but not convicted, and that were convicted of minor offenses that were not relevant to the jobs to which they applied.
Federal Contractors and Compensation Discrimination
Promoting equal pay is another focus of the Obama Administration. The fact that the Lily Ledbetter Act was the first piece of legislation that the President signed into law speaks to this focus.
Furthermore, final regulations are expected in mid-2012 from the Office of Federal Contract Compliance Programs, which require disclosure of significant compensation data that will be used to analyze and enforce actions reduce compensation discrimination.
Vanessa L. Johnson, Esq., MBA, GPHR, SPHR is an attorney and human resources professional. You can find Vanessa on LinkedIn at http://www.linkedin.com/in/vanessaljohnson.