New Year Resolutions for HR Professionals

Now that the holidays are over, it is time to make some resolutions for the new year. For human resource professionals, a good place to start is making sure that your company’s employment policies comply with the myriad developments in employment law in 2023. Here are some items to consider putting on your resolutions list. You may have already checked these items off when reading our 2023 newsletters, but if you haven’t, it is not too late!

1.   Amending Handbooks to Comply with Recent NLRB Decisions

As noted in our newsletter from Aug. 24, 2023, Section 7 of the National Labor Relations Act (NLRA) gives employees the right to discuss the terms and conditions of their employment with each other without retribution from their employer. In its 2023 Stericycle decision, the National Labor Relations Board (NLRB) concluded that facially neutral policies could potentially violate Section 7 if a reasonable employee could (not does, but could) find that a policy infringes on Section 7 rights. If you have not already done so, have your counsel review your policies such as policies regarding civility and conduct, confidentiality, conflicts of interest, use of employer communication systems, social media, communicating with media and third parties, restrictions on cameras and recordings, dress codes and others to ensure they do not run afoul of the NLRA.

2.   Amending Severance Agreements to Comply with Recent NLRB Decisions

As noted in our newsletter dated Aug. 10, 2023, the NLRB has found that common provisions in severance agreements – confidentiality and non-disparagement provisions—may violate the NLRA. (The NLRB sure was busy in 2023.) The NLRB has stated that you can keep the amount of severance confidential and can prohibit an employee from disparaging your company with malicious intent, but any restrictions beyond that likely violate the NLRA. Ensure your form of severance agreements comply with these new rules.

3.   Making Sure that Independent Contractors are Properly Classified

Finally, more than one year after publishing the proposed rule, the U.S. Department of Labor announced a final rule, effective March 11, 2024, regarding independent contractor classification under the Fair Labor Standards Act. To the extent that you are paying individuals as 1099 contractors, be sure to have your legal counsel review the circumstances of the relationship between your company and those individuals to ensure that classifying those individuals as 1099 contractors complies with the new regulations. The Department of Labor, in these proposed rules and in public announcements, has stated its intention to make it more difficult for companies to hire workers as independent contractors as opposed to employees.

4.   Amending Handbooks to Ensure that Nursing Employees Are Accommodated

As noted in our Aug. 10, 2023 newsletter, the Department of Labor has issued proposed rules regarding employer’s obligations under the Pregnant Workers Fairness Act. The Act requires employers to make reasonable accommodation and adjustments in the workplace, if necessary, to enable pregnant employees to do their job. The proposed rules identify four accommodations that should be granted in almost every circumstance: allowing covered employees (1) to have extra time for bathroom breaks; (2) to have food and drink breaks; (3) to drink water on the job; and (4) to sit or stand as necessary. The Act requires employers to make accommodations “related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship.” The proposed rule contains a “non-exhaustive list” of conditions covered by the Act, which includes current pregnancy, past pregnancy, potential pregnancy, lactation (breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth and “having or choosing not to have an abortion.” The proposed rule also states that the Act covers postpartum anxiety and depression. If you have not done so already, be sure to include in your handbook policies that outline the steps your company is taking to comply with the Act.

5.   Use the Correct I-9 Form

As noted in our July 27, 2023 newsletter, the U.S. Citizenship and Immigration Services (USCIS) is requiring employers to use a new I-9 form. Any new employees hired should fill out the new I-9 form. Failure to use the correct form can result in penalties.