2012 Employment Law Trends & Changes

 
Prepared for the PHCC Educational Foundation by TPO, Inc.

There were a variety of changes to federal and state laws in 2011 that impact employers both as a result of new legislation and updates to long-existing legislation.  We are highlighting a few of the changes and trends that you should be aware of as an employer.

Minimum Wage
Although the 2012 federal minimum wage will remain unchanged at $7.25 per hour, six states have announced that their minimum wage will increase on January 1, 2012. They are:  

• Arizona: $7.35 to $7.65 per hour; tipped employees must be paid at least $4.65 per hour.
• Florida: $7.31 to $7.67 per hour; tipped employees must be paid at least $4.65 per hour.
• Montana: $7.35 to $7.65 per hour.
• Ohio: $7.40 to $7.70 per hour. However, the minimum wage for tipped employees decreases 15 cents per hour, from $3.85 to $3.70 per hour. Additionally, employers can pay the federal minimum wage to minors ages 14 & 15 years old, and adults if the business’s gross revenue is $283,000 per year (previously $271,000).
• Oregon: $8.50 to $8.80 per hour.
• Washington:  $8.67 to $9.04 per hour.

Tax Credit for Hiring Veterans
On November 21, 2011, President Obama signed legislation, H.R. 674, that includes a provision for tax credits for businesses hiring short-term and long-term unemployed veterans. 

Returning Heroes Tax Credit   
Businesses hiring veterans who have been unemployed for at least four weeks will be eligible for a tax credit of 40 percent of the first $6,000 of wages up to $2,400.  Businesses hiring veterans who have been unemployed for longer than six months could get a tax credit for 40 percent of the first $14,000 of wages up, to $5,600.

The law doubles the existing tax credit for hiring long-term unemployed veterans with service-related disabilities. It maintains the Work Opportunity Tax Credit for veterans with service-related disabilities with the maximum at $4,800.

Wounded Warrior Tax Credit 
Qualified businesses hiring veterans who have service-related disabilities and have been unemployed for longer than six months receive a tax credit of 40 percent of the first $24,000 in wages up to a maximum of $9,600.

National Labor Relations Board (NLRB) Posting Requirement and Update
Effective April 30, 2012, NLRB requires that employers regardless of size post a notice of employee rights under the National Labor Relations Act (NLRA). The notice informs employees about their right to organize and to engage in concerted activity.   This must be posted even if the employees do not have a collective bargaining unit.  If at least 20% of your employees are not proficient in English and speak one common language, you must also post the notice in that language. A copy of the required posting in multiple languages can be downloaded here.

The other area where the NLRB is making waves is with regard to social media communications that may be protected as concerted activity (employees banding together in confronting an employer regarding the terms and conditions of their employment).  Many businesses are concerned about their reputations with clients and therefore want to limit employee conversations in public forums like LinkedIn and Facebook.  

Employees do have a common law duty of being responsible to their employer and you do have the right to protect confidential and proprietary information.  But you can't forbid employees from discussing things like their wages, says Attorney Terry Malchek.  It is considered protected concerted activity.  These discussions can't be blocked just because they occur on social media pages.  "Facebook” is the new water cooler," adds attorney Charles Plumb, moderator and shareholder at McAfee & Taft in Tulsa, OK.   Concerted activity rules such as this one apply to both union and non-union employers, regardless of the employer’s size.

The use of criminal background and credit checks in hiring decisions are definitely on the EEOC’s radar in 2012 and both areas are coming under scrutiny.

While the EEOC states it’s illegal to bar someone from employment just because the individual has a conviction, Title VII of the Civil Rights Act of 1964 doesn’t wholly bar the use of criminal records in employment decisions as long as the Employer can demonstrate a direct link between the conviction to the position through one of the following:

• The nature and gravity of the offense or offenses
• The time that has passed since conviction or sentence completion
• The nature of the job (i.e., are they handling money for your business, working around children, accessing customers’ homes?)   

Additionally, employers need to be on the alert to any State Laws that might restrict the use of criminal background checks.

Credit Reports
Employers’ use of job applicants’ credit histories to make hiring decisions is also attracting the EEOC’s attention.  There have been a surge of complaints this past year regarding the use of credit checks, especially in light of the struggling economy.   Suits have been filed with the EEOC alleging discrimination against protected classes because employers used credit checks.  Several states, including Maryland, Connecticut and California have passed laws limiting the use of credit report data for employment decisions.  Additionally, consumer groups have pushed to have the Fair Credit Reporting Act amended to require more disclosures if employers use credit scores in their hiring decisions.   

The best advice on credit checks?  Limit them to those jobs which have fiduciary responsibility and ensure that the credit check is job related and consistent with a business necessity.

Social Media
Last but not least, the use of Social Media in making hiring or employment decisions is also a hot topic within the EEOC.  While what you read on public profiles and pages in social media is arguably public information (you can never use information collected unlawfully), there are a number of landmines.  Just like when an applicant shares information during an interview like his or her religious beliefs or child care situation, it is illegal to consider that as a factor in the hiring decision.  Similarly, just because it’s on Facebook doesn’t mean it is legal to consider.  Once you know the information, it is hard to eliminate it from you decision making.  And remember, everything on the internet is not accurate or true.  Unfortunately, social media is also misused for a range of reasons including practical jokes and harassment.

As an emerging issue that hasn’t been fully tested, you should proceed cautiously and avoid drawing conclusions or making employment decisions based solely on what you see or read about a candidate or employee when perusing social media sites. 

Occupational Safety and Health Administration (OSHA)
The agency has released its top 10 violations for fiscal year 2011.  The Deputy Director for OSHA’s Directorate of Environmental Programs, Patrick Kapust, provided the new list at the National Safety Council’s annual Congress, covering October 1, 2010 to September 30, 2011.  Based on this report, these will be areas that OSHA inspectors have on their checklists in 2012.