9. Increased Agency Enforcement
For the past 7 years, numerous federal agencies have been subject to a hiring freeze due, in part, to the stagnant economy. Now that the economy is rebounding, I expect federal agencies will receive additional funding. What this means is that agencies that have oversight in the employment arena, including the EEOC, DOL, NLRB and OSHA, will have funding to staff and to investigate complaints, engage in compliance audits and increase the amount of lawsuits that are filed. Employers would be wise to review and revise policies and procedures, ensure that all the required paperwork is up to date and review your insurance coverages.
Practice Pointer: I have heard over the past several months that insurance companies are reducing their premiums without reducing coverage for items such as workers’ compensation, liability insurance and automobile insurance. Now is a good time to also review your insurance policies, and bid them out prior to the renewal date.
10. Social Media
Social media continues to be both a big attribute and a tremendous liability for employers. Various federal agencies continue to use social media as a basis for investigations such as the EEOC and NLRB. I anticipate 2015 will continue the evolution of how social media is used in the workplace and the risks associated with its use.
The American Bar Association recently published an interesting article entitled “Avoiding the Dangers of Using Social Media to Recruit Employees”. This article summarizes what I have been talking and writing about for years. The use of social media to recruit employees can lead to various claims, whether the applicant is hired or not. Reviewing the social media sites of a candidate can provide information that cannot legally be considered in the hiring process, such as age, race, sex, marital status, sexual orientation, religion, pregnancy and disability. Failure to hire an individual knowing this information may lead to a claim for discrimination. Likewise, hiring someone with information from social media sites that should have precluded hiring can lead to a claim of negligent hiring/supervision. Social media sites may reveal harassing comments directed towards or about protected classes of individuals, criminal conduct, such as assault or embezzlement, which may exclude a candidate for a particular position. The EEOC has taken the position that on-line recruitment may have a disparate impact in that it discriminates against older workers who do not use such social media sites. Likewise, a disparate impact claim could be made if the recruiting process is aimed at a certain demographic, such as age, race or other protected category. It is important that if an employer uses social media in the recruiting/hiring process, that the person reviewing the information be separate from the person making the hiring decision, and both be properly trained as to what can and cannot be considered in the hiring process.
Practice Pointer. A candidate’s social media profile should be considered as part of the job interview. Create a policy so that social media background checks are conducted in a consistent manner. Document the social media search in the recruiting process, keep records on the information posted on social networks, searches that are conducted and the information collected from those searches and separate the person doing the research from the person making the decision whether or not to hire the candidate.