As labor lawyers, we tend to think of our professional years as starting and ending on Labor Day. In order to celebrate the new Labor year, I intended to send this post early last week, but a storm called Harvey got in the way. So in belated celebration of the new Labor year, I now provide to you a checklist for the coming year as our New Year gift.
September: Begin the new year by reviewing your procedures for responding to EEOC charges. It is important that employers have a methodology to properly investigate claims made in EEOC charges so that any response is completely accurate and carefully considered. Failing to do so can come back to haunt an employer. See: The EEOC’s New Rule is a Reminder That What is Said in a Position Statement Really Does Matter.
October: In addition to enjoying the cooler weather and fall foliage, consider reviewing how investigations into all nature of workplace complaints—not just those involving EEOC charges—are handled. Pay particular attention to how issues related to attorney-client privilege are addressed to make sure that everyone involved in such investigations knows what is or is not privileged. See: Privilege and Internal Investigations.
November: If you are not a federal government contractor or subcontractor, you are probably thankful that you do not have to worry about affirmative action plans. November is a good month to double-check your internal contracting rules to ensure that anyone who may enter into a contract with the federal government has to get appropriate approvals to do so. Becoming a federal contractor on a small-time basis may not be a good business decision. See: Government Contracts: Be Careful What You Wish For.
December: The holidays can be a very difficult time for people struggling with mental issues. During this month, take some time to review your policies related to encouraging employees to seek help either on behalf of themselves or others. An impaired employee who continues to struggle to perform in the workplace without the appropriate assistance is a loss for all involved. Appropriate policies and training may catch a number of these situations and do a world of good within your workplace. See: Dealing With Dementia in the Workplace.
January: Begin the new calendar year with a full review of how your company’s complaint procedures have worked in the prior year. Now is the time to determine if there are any weaknesses in the process of allowing complaints to be heard within the workplace and the procedures to both investigate and respond to such complaints. See: The Most Important Policy in Your Handbook and The One Policy I Must Have.
February: It’s too cold to go outside, so this may be a good time to huddle in a warm conference room and do some training for your managers and supervisors on interactions with employees both in the context of investigations and discipline. As the frequency of employees taping their discussions with their employers increases, well trained managers and supervisors are a must. See: Is My Employee Recording Me?
March: Take a Spring Break and train your HR managers on something besides employment law. Consider training your HR managers about the basics of corporate organization, corporate transactions, or even antitrust issues since these areas of the law often impact HR decision making. See: Even Gym Memberships Are Not Safe: Why Your HR Manager Needs to Know Something About Antitrust Law.
April: It’s time for some spring cleaning. Use this month to revisit the circumstances where your company has a long-standing engagement with an individual who was not an employee but rather treated as an independent contractor. It is time to make sure that you remain comfortable with that designation and that nothing has changed over the year that may impact the worker status. Review how independent contractors engaged over the past year came to be engaged, how the company has treated them since that engagement, and what is the anticipation of the relevant business folks for the future of the relationship. See: Mixed Messages on Independent Contractor and Employee Background Checks.
May: “Rough winds do shake the darling buds of May,” said William Shakespeare. While some English scholars continue to debate whether the Bard used drugs, we all know that there are few issues in the workplace more complicated than drug testing. A combination of federal law and the laws of multiple states can make maintenance of such programs a headache, particularly if yours is a unionized workplace, so an annual review of compliance issues related to your drug policies may avoid a number of problems. This might be a good time to review your policies on drug testing and your experience over the past year. See: OSHA’s Warning to Employers Making Post-Accident Drug Testing More Complicated.
June: Just as parents send their children off to camp at the beginning of summer, some companies send their employees off to work for other companies. The loaning or borrowing of employees, usually referred to now as a secondment, is becoming more common. This is particularly the case for international businesses. Now is the time to review any such secondment arrangements to make sure that what is actually happening with the individual matches up with any secondment agreement or policy. Also check any new secondments that have occurred in the past year to make sure that they are properly established and documented pursuant to the company’s policies. See: Secondments – Whose Liability Is It Anyway?
July: Will unions be lighting fireworks on July 4? At this point in the year, we may finally be seeing some effect of the appointment of new members to the National Labor Relations Board. We may also see more case developments concerning the Board’s decisions related to policies or communications in the worksite and limitations on social media use by employees. Therefore, it would be a good time to review the company’s policies on these issues in light of what’s new at the NLRB. See: The NLRB’s Scrutiny of Codes of Conduct – How Much Longer Will It Last?
August: While some of us will probably be keeping an eye out for storm activity in the Gulf of Mexico, this may be a good to take a look at the company’s compliance with immigration laws and status of workers who are in the U.S. under visas. Who knows, we may see considerable changes in immigration law by next summer. See: How Should Employers Respond to Trump’s Immigration Executive Order?
Labor Day 2018: You have done a lot of work in what should be a very interesting year for the modern workplace. Give yourself a pat on the back for surviving it and take the day off.
Happy Labor Day.