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Paul Zimmerman

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Leonid Dorfman ©

What Does 2015 Have in Store for You?

As 2014 nears its conclusion, we thought it would be prudent to take out our trusty “crystal ball” to see what’s in store for employers in 2015.

Background Checks

For many years the legal issues involved in conducting background checks were a minor nuisance for employers. Sure, there were federal, state and local laws that governed:

  • What an employer could and could not do
  • The process an employer needed to follow to conduct a valid background check

But the laws had existed for some time, and employers were accustomed to dealing with them.

Not true any longer. Ever since the EEOC published its New Guidance on Background Checks in 2012 this area of the law has been reinvigorated. The EEOC has placed the issue near the top of its enforcement agenda with respect to race and national origin discrimination claims.

Perhaps of more significance, state and local governments are getting into the act. In 2012, 54 states or local governments had laws governing background checks or criminal conviction inquiries. That number has now grown to 85, with the “Ban the Box” laws leading the way. New York City is expected to soon join this list, with legislation that would “ban the box” and be far tougher than existing state legislation.

Non-Union Employers

Another area where we can expect increased enforcement is at the National Labor Relations Board,with non-union employers. As my daughter might say, “wait, what?” That’s right, the NLRB has been increasing its enforcement efforts over the past several years, prosecuting unfair labor practice charges against non-union companies for:

    • Overbroad handbook policies
    • Improper confidential provisions and agreements
    • Inappropriate “at-will” language
    • Unlawful social media policies including improper terminations under those policies.

All of this arises under Section 7 of the National Labor Relations Act, which permits employees to form, join, or assist labor organizations, bargain collectively, and to engage in concerted activity for their mutual aid or protection, or refrain from doing so. These “Section 7 rights” apply to union as well as non-union workforces, and are the catalyst for increased NLRB activity in the non-union setting.   

Minimum Wage

Advocates continue to press federal, state and local governments for an increase in the minimum wage, and municipalities are responding. For example, New York City Mayor Bill de Blasio recently issued an Executive Order mandating an increase in New York City’s “Living Wage” and expanding its coverage to a larger pool of businesses. While this development is the subject of a future post, New York City does not stand alone. Eleven states, including Connecticut and Massachusetts, enacted wage increases so far this year, with more on the horizon. Unions are also using this issue to galvanize low wage workers. Expect more activity, not less, in cities and states, if not Congress.

Severance Agreements

We also expect the EEOC to continue to scrutinize severance agreements for language that a layperson might construe as prohibiting the filing of a charge with the agency. The EEOC has recently filed two lawsuits making this very allegation, one of which, against retail giant CVS, was recently dismissed on procedural grounds, for failure to conciliate. If one is to believe the rhetoric coming from the EEOC, this is an issue of critical importance. Expect to see more activity in 2015.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.