2016 was a busy year for employers  and we expect more of the same in 2017.   The EEOC announced its Strategic Enforcement Plan for the next 5 years, providing employers insight into the Agency's priorities and areas of focus.  And while implementation of the new Fair Labor Standards Act (FLSA) overtime rule was halted by a Federal Court's nationwide injunction, various pending proceedings and the impending transition of power in the White House has left employers justifiably confounded on how to proceed. Keep in mind that despite the federal court injunction, some states, including New York, are raising the salary thresholds for exempt employees. Companies with New York employees should CLICK HERE for a summary of the new salary thresholds that took effect on December 31, 2016.
With so much in flux, we want to help prepare  your business to  hit the ground running in 2017.  

Below is a "To Do" list of the TOP 10 PRIORITIES employers 
should focus on in the New Year.
Please email or call us at 973.665.9100 should you need any assistance in preparing your business for 2017.
1. Ensure that your background checks are lawful.
In 2016, there were a number of high-profile class action lawsuits alleging non-compliance with the Fair Credit Reporting Act. These lawsuits have resulted in multi-million dollar settlements and unwanted public relations exposure.

2. Audit policies to verify compliance with all applicable federal and state employment laws.
Federal and state employment laws are constantly evolving and it is essential to keep abreast of these developments. NFC partners with our clients to audit their employment law practices from the initial application through termination, or to address select areas of concern.

3. Review pay data to prepare for submission of the revised EEO-1.
The EEOC approved a revised EEO-1 to collect pay and hours worked data from covered employers. The first submission date for the revised EEO-1 is March 2018. NFC recommends that affected employers use 2017 as the year to conduct a privileged internal audit of compensation data prior to submitting the new EEO-1 in March 2018.

4. Review employee handbooks to address changes in federal and state law and recent guidance from the NLRB, EEOC and other agencies.
Employee handbooks are key documents routinely requested and produced in employment  litigation, and  deficient handbooks can negatively impact an employer's defense. Employers should make certain policies are up to date in the following areas:
  • Electronic communications systems
  • Social media
  • Anti-discrimination/harassment and complaints of unlawful conduct
  • DOL rules on nursing mothers
  • Overtime and off-the-clock work
  • New rights for same-sex married couples
  • FMLA leave
  • State and local family leave laws and ordinances
  • Sick leave policies
  • ADA reasonable accommodations
  • Inclement weather and attendance
  • Note: Arbitration agreements in employee handbooks are no longer enforceable

CLICK HERE if you would like to update your employee handbook for 2017. 
5. Ensure compliance with the Affordable Care Act.
Although the complexion of the ACA will likely change under the new administration, employers should:
  • Follow reporting requirements and be aware of the IRS proposed guidance for plans that allow employees to receive a payment if they opt out of coverage
  • Engage counsel to review any contracts with insurers, third party administrators or payroll services involved in the benefits process
6. Prepare for workplace issues related to LGBTQ employees.
The rights of the LGBTQ community were at the center of a host of legal challenges and developments in 2016.  Pronouncements by the EEOC, and several federal courts, have secured and protected the rights of LGBTQ individuals. Many states and localities have enacted laws expressly prohibiting employment discrimination based on gender identity and expression. Make sure your company promotes a safe and legally-compliant workplace for LGBTQ employees:
  • Create and update relevant employment policies and practices
  • Revise employee handbooks and benefits plans
  • Ensure access to restrooms and other facilities
  • Maintain confidentiality
  • Use proper names and pronouns
  • Implement gender-neutral dress codes
  • Address challenges with other employees and coworkers 
7.  Ensure employer-offered wellness programs comply with recent regulations and guidance.
In May 2016, the EEOC issued final rules governing how Title I of the Americans with Disabilities Act and Title II of the Genetic Information Nondiscrimination Act apply to employer-offered wellness programs, including incentives to encourage employees or their spouses to participate in such programs. The EEOC's rules and notice requirements apply on the first day of the plan year that begins on or after January 1, 2017.
8. Revitalize your anti-harassment program.
The prevention of  systemic harassment is one of the stated priorities in the EEOC's Strategic Enforcement Plan.  As recognized in the 2016 report issued by the EEOC's Select Task Force on the Study of Harassment in the Workplace, effective training can reduce workplace harassment, while ineffective training can be counterproductive.   The effectiveness of any training is increased when, among other things, it is:
  • Supported by the highest levels of the company
  • Conducted and reinforced on a regular basis for all employees, and most importantly for middle managers and first-line supervisors
  • Delivered by qualified, live and interactive trainers
  • Customized to the specific workplace environment
 
CLICK HERE to schedule an instructor-led training session for your team.
9. Review FMLA policies and procedures.
The DOL issued a new "Employee Rights Under The Family and Medical Leave Act" poster, although the February 2013 version of the poster may still be used to fulfill the posting requirement under applicable regulations.   At the same time, the DOL also issued "The Employers Guide to the Family and Medical Leave Act," which is intended to provide basic information to help employers navigate and administer the FMLA. First quarter 2017 is a prime time for employers to review FMLA policies and procedures to ensure compliance with this complex law.
10. Update your key employment documents and practices.
Legislation and judicial decisions across the country at the federal, state and municipal levels have affected the scope and propriety of various employment-related documents and practices designed to protect your business, including:
  • Offer letters
  • Employment agreements
  • Arbitration agreements and class action waivers
  • Restrictive covenants, non-solicit and non-compete agreements
  • Non-disclosure, trade secret and confidentiality agreements
  • I-9 forms
  • Background check documents

CLICK HERE for assistance in reviewing these documents to ensure they are effective and enforceable. 
Please email or call us at 973.665.9100 should you need any assistance in preparing your business for 2017.
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