Compliance Conundrum: Critical Policies & Protections You Need to Know

Lori Cole (00:02):

So with that, let’s get started. Thank you, everyone, for being here today. My name is Lori Cole, and I am a certified career coach and advisor here at iHire. I want to welcome you to today’s webinar, Compliance Conundrum: Critical Policies and Protections You Need to Know. I’m so glad you’re joining us here today.

(0:23):

Before we get started, I want to point out one more widget on our webinar platform. Those widgets that you see on the screen really allow you to move around the windows, explore content related to today’s presentation, and you can move those around and resize them. Be sure you find that Ask a Question Widget and submit your questions. You can do that at any time during the webinar. Only our producer will see those and we will get to as many as we can after the webinar. This one is just packed full of really good stuff, so we’ll go as quick as we can, but make sure that we give you all the information that you need.

(01:03):

Also, keep an eye on your inbox tomorrow for a recording of this webinar. Just a quick reminder, if you’re here for that Sherman HRCI recertification credit, you’ll have to stay till the end of the webinar. There will be a widget that’ll pop up on your screen, you’ll need to click that, and that’s where you can download your certificate of completion.

(01:26):

Let’s get to things here. I’m excited to introduce our wonderful presenters today, Chrisanne Bowden and Vickie Krolak. Let’s start with Chrisanne. She is the Principal HR Business Partner here at iHire and has almost 30 years of experience under her belt. She focuses on compliance, risk management and operational strategy. At iHire, she works with all kinds of companies to help them stay on top of their HR best practices and labor laws. Thank you so much for being here with us, Chrisanne.

Chrisanne Bowden (01:59):

Always a pleasure, Lori. Thank you.

Lori Cole (02:03):

Then we have Vickie Krolak. Vickie is a certified HR professional with over 20 years of experience in compliance, policy development and workforce planning. She serves as a trusted advisor to leadership teams and is the president-elect of the Mid-Florida SHRM. Welcome, Vickie.

Vickie Krolack (02:25):

Thank you, Lori. Happy to be here.

Lori Cole (02:28):

Well, thank you both for being here. Let’s get started with just a quick poll. No wrong answers here. It’s just a chance to see how you’re all feeling about compliance today. How confident are you that your business is in compliance with state, local and federal regulations? Very confident, somewhat confident, somewhat unconfident or very unconfident.

(02:57):

While we’re waiting for those poll results, we’re going to ask Chrisanne to walk us through today’s agenda.

Chrisanne Bowden (03:04):

Sure. Thanks, Lori. Well, first off, we’re going to do a quick recap of the Compliance Conundrum: Part One that will include employee classifications, discrimination, harassment, at-will employment terminations, accommodations, and FMLA. For this session, part two, we’re going to take a deeper dive into wage and hour compliance, workplace violence prevention, data security and employee privacy, background checks, and drug testing, social media policies, responding to unionization attempts, whistleblower protections, and national and state-specific EEOC policies.

Lori Cole (03:47):

All right. Like Chrisanne mentioned, we’re going to start with a quick recap. The first few slides that are dark blue in the background will be our recap slides. We just want to make sure that you have all the key takeaways from the first webinar we did, like we said, this is part two, but the bulk of our time today will be spent on the new content, which will start about halfway through. Those slides will be lighter in the background, different colored in nature. I just want to show you the differences between those.

(04:21):

All right. We’ve got our poll results here. Very confident, I’m glad a lot of you are in that group. Somewhat confident, we’re so happy to have you here today. If you fall into any of the other categories, we are here to help you and hopefully you’ll get some great takeaways from the webinar today.

(04:43):

Vickie, what are some of the most common misunderstandings that you see with exempt and non-exempt statuses?

Vickie Krolak (04:54):

Yes, Lori.

(04:55):

This is an area I find most often where employers sometimes will misclassify individuals. Remember that exempt is salaried positions and that means they’re exempt from being paid overtime. Your non-exempt employees are hourly positions, which does make them eligible for overtime. There’s a three-prong test that goes into determining if they’re exempt or not. Are they paid on a salary basis? Is the salary meet the threshold? Does it meet one of the Fair Labor Standard Acts, duties tests? And there are several of those. Now even to mention this is the federal level, but the state level, I know New York has thresholds in addition to what the federal is, that are actually higher.

(05:36):

Then the other thing I see is employees versus contractors, so your 1099 contractors. Independent contractors are usually self-employed individuals that perform work on a contract basis for an employer. They are not employees and therefore they’re not subject to the same tax exemption laws or employment laws. There are legal restrictions on who can be classified as an independent contractor, versus an employee. And many federal government agencies and states now have their own tests. This is an area we’re also seeing a lot more crackdown or audits happening from the government to make sure people are classified correctly.

Lori Cole (06:20):

Right. Chrisanne, what are the differences between discrimination and harassment?

Chrisanne Bowden (06:25):

Yeah. It’s a good topic because it’s not a one-size-fits-all thing, they are different things and handled somewhat similarly, but something I think every employer needs to understand, could get them into legal trouble, or potentially trouble with governmental agencies that oversee this type of thing.

(06:46):

The examples of differences between discrimination, workplace harassment and sexual harassment, let’s start with discrimination. I would say discrimination, summed up, is treating an applicant or an employee differently based on some type of protected characteristics. So is that age, gender, national origin, et cetera. Harassment is protected characteristic like race, gender, age, disability, et cetera. Then sexual harassment obviously is something sexual in nature that could be quid pro quo, meaning this for that, so if you go on a date with me, I’ll give you a raise, probably a little more graphic than that, or it could be a hostile environment. The bar for this is being lowered by the way. It used to be it had to be kind of a consistent inappropriate jokes in the workplace happening consistently, posters that weren’t appropriate, but now the bar is lowering on that too. So even a couple of instances could fall into creating a hostile environment.

(07:52):

You need to know and comply with workplace policies on harassment and discrimination. Always conduct yourself in a professional manner, be aware of how your behavior is impacting others, address incidents of discrimination and harassment immediately, and definitely cooperate with investigations on discrimination and harassment. The key thing is your organization needs to know what constitutes discrimination or harassment, and you need to act appropriately, up to and potentially including investigations when allegations are made. That’s the number one thing. A lot of states are now enacting mandatory training. If you do not have this training happening in your organization, first of all, you want to check for states. Vickie mentioned earlier in New York is one of the states that requires the annual training. If you don’t have it, even if it’s not required. A big tip for you is if you’re doing annual training and you do have a complaint that goes to litigation, it always works in your favor that you’ve been doing training, so it’s worth the investment in your organization to put that into your practices.

Lori Cole (09:09):

Vickie, in terms of at-will employment, how can proper documentation really be a lifesaver during terminations?

Vickie Krolak (09:18):

Yeah. This is a really critical area. I see this most often where employers or clients have not done their due diligence to have proper documentation in place. Having that documentation helps you identify patterns in their behavior. It shows that you have provided them feedback and information towards the decision of doing a termination. It gives them the written history of what’s going on. It’s going to be best to give you that valid business purpose and make sure you don’t violate any laws. It justifies those actions, and even in the corrective actions. Honestly, at the end of the day, it just makes your job easier.

(10:01):

When it comes to at-will, one of the most important things to remember here is that this needs to be included in your offer letters, it needs to be in your employee handbooks. It applies to all US states, with the exception of Montana, they have their own language that if you’re in that state, you should include. This says that there’s no specific term on that employment, there’s no guarantee of how long that employee will be there. It applies to both party. It means that the employee or the employer can terminate employment at any time, for any reason, with or without notice. Now there are some exceptions. There are some whistleblower protections. Chrisanne is going to talk about that later on in the presentation. Then if you have somebody out on FMLA, they’re also protected because one of the purposes of FMLA is job protection for at least up to 12 weeks.

Lori Cole (10:56):

Vickie, did you want to go over this at-will compliance clause?

Vickie Krolak (11:02):

Yeah. On the slide here there’s an example of what your clause should look like, that’s in your handbook. For your offer letters, it can be a little bit shorter, but definitely important language to include.

Lori Cole (11:15):

We wanted to make sure this was on a slide so you could go back and refer to it later. Chrisanne, what are the basics that employers should know about disability and religious accommodations?

Chrisanne Bowden (11:29):

Sure.

(11:30):

Let’s first talk about ADA, which I think everyone knows means the Americans with Disabilities Act. It was enacted, it applies to all employers with 15 or more employees. This is not just like for large organizations to be concerned about. What ADA essentially does is it protects individuals with disabilities from discrimination, and it enables individuals with disabilities to participate fully in society. The one thing that we want to focus on though is the law specifically states that we’re talking about reasonable accommodations.

(12:08):

Sometimes I have employers who just get so anxious that they’re going to have to build a new building or something to accommodate. The general accommodations, Vickie, shake your head if I’m right, I think we hear it’s about $500 is the average cost of an accommodation. For the most part, it’s not a lot, but it’s working with the individual and potentially their medical provider to determine what the employer can reasonably do to suit a person. That could be anything from an ergonomic style desk, to changing break schedules so that maybe an employee who has a medical issue and needs to take breaks more frequently can have shorter, but as many breaks, et cetera.

(12:53):

Then when we talk about religious accommodation, religious accommodation is protected under Title VII. The EEOC defines religious beliefs to include beliefs as well as non-theistic moral or ethical beliefs. It’s important to understand that this doesn’t necessarily mean that the person’s going to identify as a specific religion, it’s their belief system. The law protects, not only people who belong to traditional organized religions like; Buddhism, Christianity, Hinduism, Islam, Judaism, but also others who have sincerely held religious, ethical or moral beliefs. The accommodations there are very similar to the ADA, like what is reasonable.

(13:38):

I had a situation once in the past where a person claimed a religious accommodation need that really essentially would, on average, require her to be out of work 20 days a month. We did due diligence, but we were able to rescind a job offer, because it just was a smaller organization and that wasn’t going to be something that could be accommodated in the role she was in. That’s a pretty extreme case. In most cases, you can work with an individual, they perhaps need a different day of the week off or something like that.

Lori Cole (14:17):

Vickie, this is our last wrap up slide, FMLA can be pretty complex. What advice do you have for employers to help them steer clear of mistakes?

Vicki Krolak (14:28):

Yes, good point.

(14:29):

So remember, this one applies to employers with 50 or more employees within a 75-mile radius, all public agencies, it provides job protection and unpaid for qualifying medical and family reasons. That’s the key word there. Job protection and unpaid leave. Those that are eligible for it can take up to 12 work weeks. Those, again, like I said, are unpaid in that 12 month period. There are some terminology you can include in your policy, whether it’s a rolling calendar, starting calendar, calendar year, it can be taken intermittently or on a reduced work schedule. Employees have had to work for the company for at least 12 months and complete at least 1,250 hours of service within those past 12 months.

(15:12):

Also be aware of new state laws that are being implemented. A lot of times FMLA can be wrapped into ... If they want to get paid during that unpaid time, they can use their PTO, they can use one of the other state paid leave laws. Another thing I want to touch on too, this is if you have someone at FMLA and they’re coming back to work, it kind of goes hand in hand with ADA. So they come back to work, they might have job limitations, you should consider the ADA process to bring that individual back to work, unless it’s going to be an undue hardship, as Chrisanne mentioned.

Lori Cole (15:50):

All right. As I said, this was the last of our wrap up slides or recap slides. If any of those things you want to dig into more, you can always go back and watch the first Compliance Conundrum Webinar in our Employer Resource Center. That’s available to you on demand. I would encourage you to go back and we’ve got a lot more information in that particular webinar on the slides we just covered.

(16:21):

All right. Chrisanne, let’s get to the new step here. With wage and hour laws changing so frequently, how should employers keep up to speed on compliance?

Chrisanne Bowden (16:33):

Yeah. You’re so right about them changing so frequently in this day and age, Lori. It used to be that what we mostly were concerned about were the federal laws, with regards to wage and hour, and pretty much everything else, right? Currently what we’re seeing is a massive influx of state-related laws being enacted every year. It’s so overwhelming and hard for businesses to keep up with, we might see some emojis on this one, especially those of you in multiple states. It’s exhausting.

(17:06):

One of the things we look at is overtime laws. We’re all really familiar that non-exempt employees, that Vickie touched on earlier, have to be paid time and a half for anything over 40 in a week. Simple, simple. Except what state are you in? For example, if you’re in California, overtime is over eight in a day. It doesn’t matter if you’re 40 hours a week or not, eight in a day and double time for over 12. California even has some other stipulations too, by the way. Colorado is also a double for any shift of 12 hours, I’m sorry, is automatically going to be paid at time and a half. Alaska has daily overtime as well. Know your state, make sure you’re in compliance.

(17:52):

States also have pay equity and salary transparency laws. Every year we’re seeing this grow. All good intended, trying to make sure that you know there is pay equity based on race, gender, et cetera, which we’ve seen so much disparity with over the years. What that means is you may be required to be very forthcoming with your salary specifically, especially in job posts. Timekeeping too. Some states have specific timekeeping and record retention requirements like showing specific start and end times in your record keeping, showing meal periods, tip allocation and record retention.

(18:34):

Final pay in states like California, Colorado, Massachusetts, they actually require final pay to be issued immediately for fired or laid off workers. Some states require that even within 72 hours for a person who quits with some notice, you still have to pay them within 72 hours of their last day. Several have shorter than the next scheduled pay. Here, again, you need to know your state. If you’re not sure, it’s something that you need to look into.

(19:10):

Withholding from pay beyond tax. This is something that I want to caution everybody on. I very frequently hear businesses talk about a person damaged a piece of equipment or lost something so they deducted it from their pay. It is almost never permissible. If it’s something you’re going to do, you have to have already like dotted your I’s and crossed your T’s, and had the proper signed off documentation in place for any deductions you’re going to do that’s not tax-related benefits related for potential child support, [inaudible 00:19:47] type of thing.

(19:50):

Talking about that, with regards to benefits and garnishments, if you’re an employer who provides benefits like healthcare, I strongly suggest you work with your broker to ensure that you’re [inaudible 00:20:04] all your compliance items and you have everything in place. These include documents like your summary plan description, you’ll hear that called an SPD, along with other compliance and reporting requirements you need to do annually.

(20:16):

In most cases employees going to be expected to make some kind of contribution towards their benefits, so you need to be sure you have a clear outline of pre and post tax deductions that’ll be coming from the employee’s pay. Obviously this needs to be signed or verified in some way. A lot of open enrollment programs will handle that for you, but be sure it’s taking place.

(20:41):

Now, we talked too you about child support orders and wage garnishments. Don’t take these lightly, they do require legally prompt response from the employer. In cases with multiple orders, child support is always going to post precedent, but I want to encourage you to be sure you carefully review the document and comply with all the requirements therein, they can vary greatly state to state, or even court to court. If you’re doing, for example, a garnishment for one employee and you get another similar garnishment for another, but from a different quarter, a different state, you have to review it really carefully about how it needs to be processed and managed. You also need to ensure no order drops your employees below the applicable minimum wage for your location. If the order would potentially do that, then you need to contact the court and discuss that issue because you have to at least pay minimum wage.

(21:41):

Even though the employee should have received notification from the court as well, it’s best practice for employers to create some kind of internal notification document to notify an employee when the deduction will be implemented, and the amount expected to be reduced from each pay.

(21:58):

Then finally, compensable time. Employers need to know that a lot of work related activity is also compensable. So things like pre and post prep work, in some areas, rest periods are covered, required training. If you’re requiring an employee to take training, you need to compensate them. Travel has specific and very complex requirements and even unauthorized work needs to be paid. That’s the one that really trips a lot of employers up, that if somebody decides to stay a little late or work overtime, or get something done, and they don’t have pre-approval, you still have to pay them by law, you can handle that through a disciplinary action, coaching, hopefully help the employee understand. Also, if you don’t have it, you need to have your policy on overtime or unauthorized work, really clear so that it is something that you can enforce from that perspective.

Lori Cole (23:02):

I’ve run into that many times during my career where people would just take it upon themselves to work overtime and then turn it in on their time card at the end of the week and you’re like, "What? We didn’t know you were doing that." Yeah. It’s super important to have that in your policy handbook.

(23:26):

Vickie, workplace violence is becoming a real concern for people. What proactive steps do you think employers should be taking to make sure everybody is feeling safe at work?

Vickie Krolak (23:39):

Yes. It is on the rise, unfortunately, and it’s prompted many state legislators to take action. Employers need to be responsible and proactive with complying with these emergent laws, provide training. At least 13 states have actively considered laws that focus on workplace violent prevention. Legislation does vary by state, and tends to lean more comprehensive on the employer mandates.

(24:05):

States like California are leading the way. They actually have OSHA requirements built in, along with workplace violent prevention plans. These require hazard requirement identifications, employee training and post-incident review. So root cause analysis; what happened, how did it happen, how could we prevent it from happening again? New York has also implemented this for public employers. Also includes; risk evaluation, employee involvement and record keeping and other requirements. Other states to watch that are coming up here are Washington, Oregon, New Jersey, Minnesota. They have sector specific requirements and proposed bills, and then there are other several states that are considering similar legislation.

(24:55):

I would say the most important thing to remember as an employer under these laws is have a written workplace violence prevention policy in your handbook, assess the hazards in your workplace, depending on the type of industry you’re in, provide that employee training, what they need to know. If you’ve not done an active shooter training, I highly recommend that training and you can partner with your local police department or sheriff’s office. I know, at least where I am in Florida, our sheriff does that training pretty regularly and is very open to coming in and training companies. He came to our SHRM group and did that training a couple of years ago and I learned a lot. Establish a reporting process and incident response procedures and then make sure that you are keeping up with your record keeping and evaluations. If it is an OSHA incident, there are certain requirements around that as well. Just make sure you’re staying informed by your state laws and legislature to see what’s going on and what things you need to put in place and follow.

Lori Cole (26:00):

Regular companies are catching up to what schools have probably had to deal with for years. I know that those schools will all have the invader training or shooter training, active shooter training, that sort of thing. Yeah. Companies are catching up to that.

Vickie Krolak (26:17):

It’s pretty interesting too because the sheriff, here where I am, I mean he actually recommended having someone on site that carries. I mean I’m in Florida, we have laws around that, concealed carry laws around that and unconcealed, but he really, strongly encouraged people to know what’s going on and have measures in place to protect your employees, as best possible.

Lori Cole (26:41):

Great idea. Chrisanne, with so many states passing data privacy laws, what key things should organizations keep in mind regarding employee data management?

Chrisanne Bowden (26:53):

Sure. Yeah. The thing that we always need to keep in mind is this is a moving target. As soon as hackers create something and our wonderful operations/IT teams figure out how to prevent it from becoming a major issue for us, they figure out another way. It’s that cat and mouse game. Organizations, for business reasons, really need to stay on top of this, but there are a lot of up and coming regulations that are designed really to protect the data of our employees and their privacy.

(27:34):

Several US states have data privacy laws in place impacting both consumer and employee data. These law vary in scope and enforcement. So like we’re preaching to you right now, research or know your state, make sure you have in place what you need to for where you’re located. Key states with data privacy laws include; California ... California always seems to be on the list, doesn’t it? California and New York, Colorado, Connecticut, Delaware, Florida, Iowa, Montana, Nebraska, New Jersey, New Hampshire, Oregon, Tennessee, Texas, Utah and Virginia. That’s a long list. When I see a list like that in what I do, what it tells me is next year there’s going to be a few more states on that list, and so on, and so on, until the point comes when pretty much everyone’s on it.

(28:32)

These laws are going to include things like protection of social security numbers, bank info, health info, addresses, et cetera. Medical data, keep in mind, is also protected under HIPAA. This is one thing that often surprises even some of the HR people that I work with. If there’s a document that you receive that may just be a return to work type document and you just throw it in an employee file, that file needs to be protected like it’s a HIPAA file. It’s best practice to really have separate and secure files for anything that might be considered HIPAA protected, and that includes drug test information. Really take a look at your internal practices and make sure you’re not having any issues there.

(29:20)

What these laws do is they protect storage, retention, access, again including medical health, biometric, genetic information, social security, et cetera. So comply with your data privacy laws. Also the FTC has a safeguard rule, so you need to be familiar with that. Some state laws are even more strict than that one, by the way. So implement strong security practices, enforce strong password policies. I know we all know it at iHire, every, I think, couple of months you get notifications, change your password, change your password, and you’re just not allowed to not change that password, you have to. That prevents somebody from having a password maybe compromised somewhere else, but now they can figure out how to log in on your devices.

(30:17)

It’s also a really good idea to implement two-factor authentication. I always hate that I have to do that, when I’m in a rush, but it’s there for a good reason. Implement annual cybersecurity training as well. Your employees need to be put through, and there’s multiple platforms that’ll do it for you, but a training that they can’t just skip through, it verifies with questions that they’re actually attending and keeps it kind of front of mind how they handle certain things. If you don’t already, have written data security policies and have an incident response plan already in place. Too many times something happens and we’re trying to figure it out, you need to have that already designed and plug and play if there is ever some kind of breach of security.

Lori Cole (31:11):

It’s a great point that you make about the HIPAA, Chrisanne. I know of a situation recently where a safety manager was let go because he went out on the floor and started to talk to another employee about their medical accommodation request in front of their coworker. Yeah. It’s important that all of your people, who have access to that medical information, be trained on the HIPAA.

Vickie Krolak (31:42):

And the PHI as well. I was going to add know, need to know basis and have processes in place of how employees can submit this type of information. I can’t tell you how many employees during Covid, text me their Covid results. I’m like, "No, I don’t want that on my phone," and I had to delete them all the time because I was like, I don’t want that information out there floating around on my phone. If you have a safety manager, like Lori mentioned, have a practice where the HR and safety work together to make sure that that employee’s information is protected as best possible.

Lori Cole (32:18):

Good point, Vickie. Background checks and drug testing can get a little bit tricky, we’re still on this HIPAA topic. What are the best practices employers should really focus on, Vickie?

Vickie Krolak (32:33):

Yeah. This is pretty common for employers to run background checks to verify criminal history, employment history, education and more. It’s really good to outsource this to a third party, if you can, doing background checks. Make sure you partner with someone that’s going to be compliant with the Fair Credit Reporting Act. They can provide clear disclosures, obtain the written consents required, and also follow those pre-adverse and any adverse actions that you may need to take.

(33:04):

Also, keep in mind, many states and localities now have Ban the Box laws in place. These have been around for probably about 10 years now. These laws prohibit employers from asking about criminal history on that actual job application. So before they’re hired, when they’re going through the application process as a candidate, employers must delay inquiries about criminal records until after that contingent offer has been made. The goal here is to reduce biases and improve access to employment for individuals that have prior convictions.

(33:37):

Another thing I keep in mind too is if you have someone that comes back with a criminal, what do you call it, like red flag on their background check, make sure that it’s job-related. If it’s a DUI and they’re not driving for your company, you can typically overlook that type of thing. If it’s a misdemeanor drug charge that happened 20 years ago, 15 years ago, you make that determination, maybe they were younger and they made a poor choice. Again, not job related, you can typically overlook those types of things. If it’s a violent crime, I absolutely go through that adverse, pre-adverse action steps.

(34:20):

Also, when it comes to drug testing on the pre-employment, make sure that you are following the state laws. Many states have passed laws around this as well. They must be applied consistently in accordance with those laws. Employers should imply clear communications on those policies and ensure that all applicants are treated equally. Also, make it conditional in that offer letter as well. You can’t drug test one person, and not the other. All applicants or candidates that come through that have that offer need to be tested.

(34:53):

Other types of tests that happen, reasonable suspicion, post-accident, and then random drug tests. These are frequently used, especially in those safety sensitive roles. New marijuana laws or marijuana laws have been evolving over the last couple of years, in many states. You can restrict THC testing, but if you are a government contractor, there might be strict laws around that for you. If you have DOT drivers, they have very strict laws as well. Make sure that your policies are consistent and are being followed properly.

(35:30):

When it comes to reasonable suspicion testing, make sure that you have good documentation and that you truly believe that the employee is believed to be impaired. Two supervisors, that are trained, must observe this individual before you can conduct that reasonable suspicion test. So make sure that they know that things like slurred speech, erratic actions and substance odor smells can be an indicator, but make sure you document, follow the rules, follow your policies when you decide to move forward with something like that.

(36:08):

When it comes to post accidents, make sure that when you’re doing this you have a policy on when you’re going to test for these types of things. One of the employers I worked for in the past had a $500 goal, anything over that, they automatically did a drug test. It must be communicated in your policies. The employee must understand that if they do this, it’ll happen, the test will happen. Best to do this within eight to 32 hours of the incident. There might be some state laws that apply there and DOT remember they have really strict, has to be done within eight hours, has to be done within, and it doesn’t matter if it’s their fault or not. I had a truck driver once in one of the companies I worked for that somebody ran into him and we had to drug test him. It was unfortunate, but they had to follow the DOT laws.

(37:01):

When it comes to random testing things to keep in mind here, these are done typically in high-risk jobs, areas where there’s worry that someone be operating heavy machinery or something like that, as an example. This selection must be done unbiasedly. I do recommend using a third party with a medical review officer. Employees should know this is part of their job conditions. Again, follow your state laws, if they are in place, and check your union agreements, if you have a union environment.

(37:32):

Other things to remember, I think I’ve mentioned this before, be consistent in how you apply this to your workforce. This is going to help you avoid any kind of claims of discrimination. Make sure you have testing steps in place, who’s going to authorize it, what the reason it’s going to be done, what actions are taken, and everything is clear in communication with that employee throughout the process. Then if somebody does come back with a positive result, make sure that that medical review officer explains to them, give them an opportunity to dispute the results or appeal it. Maybe a second test is something you want to do.

(38:10):

Also understand, that medical review officer, if there’s any kind of prescription drug medications that could be throwing the test off. This does happen, believe it or not. Then also make sure you’re keeping strict confidentiality, when it comes to this information. Again, it’s personal health information, it needs to be protected. Then like I said before, partner with your medical review officer on how to handle the next steps. One of the employers I worked for, they were very strict, if came back positive it was immediate termination. As long as you have clear policies on what the process is, you should be fine.

Lori Cole (38:48):

Vickie, help me understand the marijuana legalization. If marijuana is legal in your state, does that prohibit your company from testing for it?

Vickie Krolak (38:58):

It doesn’t prohibit. Honestly, it kind of goes with the philosophy of that company. One of the companies I worked for, they decided to take that THC off the panel when testing. They did have strict rules around you couldn’t be under the influence during work. I mean, I know marijuana is one of those drugs that stays in your system for like 30 days or more, so it’s possible that if they test for that, it’s going to show positive even though they might not be actively smoking, or chewing gummies, or whatever method they choose. I would just say make your policy clear. We understand that you might have your medical marijuana card, or it might be legal to do recreationally, but you can’t come to work under the influence.

Lori Cole (39:53):

Chrisanne, can you share why every company needs a solid social media policy?

Chrisanne Bowden (40:00):

Yeah. Social media is interesting. I do, periodically, get asked to meet with groups of like job seekers and truthfully, I do coach them, look at your online presence. I don’t think it’s particularly ethical for employers to go on people’s social media and judge them, but they do. We always coach job seekers to watch what’s out there online and make sure it aligns with the kind of work you’re trying to do. The reality is, businesses have to be aware of what they have to comply with, with regards to how they’re handling social media and what they expect of their employees.

(40:40):

Every company does have to have a social media policy. One of the greatest risks employers face is regulating how individuals that they employ use social media, and attempts they make to regulate it. It’s important that every employer have a policy that both protects the employee’s freedom of speech and protects how it’s used.

(41:03):

Let’s talk, first of all, about what to put in your social media policy. You want to create a policy that covers on-duty use. Do you permit the use of social media while you’re on the clock? That protects the employer’s reputation, that addresses things like harassment and confidentiality, and outlines expectations when speaking about the company. What can you regulate with regards to social media? You can regulate use during working hours and/or on company devices. You can regulate language that’s considered, in so far as how you handle this happening, language that’s considered harassing, or discriminatory, or violates your internal code of conduct. They can also restrict the use of company branding, speaking on behalf of the company without authorization, or tagging the company to any kind of offensive content. They can also manage all social media accounts that are work-related. I know Lori you do a lot with iHire social media. That’s, of course, something that we can put some parameters around when people do that.

(41:28):

What can employers not do? They cannot limit discussion of wages, hours, working conditions. They can’t engage in any collective bargaining attempts happening through social media organizing efforts or like something ... Also, can’t really regulate a group of employees, maybe having a thread where they’re talking about work and maybe even complaining about work. In some states, there is even greater protection for off-duty legal conduct. Additionally, we have to keep in mind when it comes to social media, free speech protections exist for belief-based expression, and political speech.

(43:03):

Once had a scenario where someone was admonished for very openly displaying their religion through their Instagram account and another employee saw it and was, for some reason, offended by it. The employer unfortunately brought it to the attention of the employee and suggested that it was poor judgment. It wasn’t really a discipline action, but was suggesting it was poor judgment to display their religion so openly. That would be protected conduct and it became something very problematic for the employer. Finally, employers should not require employees to share their passwords so that they can log into their social media or require them to accept friend requests, so they can view their content. There are very, very, very narrow scope of positions with some law enforcement positions for that kind of thing can be expected. As a general rule, you can’t require your employees to allow you access to their content.

Lori Cole (44:08):

With social media, I would really recommend that you have one designated person in the company that’s monitoring your Facebook comments and answering LinkedIn requests and that sort of thing, because sometimes you do catch someone saying something derogatory about your company and, in some cases, you can delete those remarks off of Facebook, especially if they’re just ... If it’s valid, if it’s a conversation that you should have, you need to just have somebody monitoring that and handling it for you.

(44:50):

Vickie, unionization, it’s a big topic and it is becoming more common. What are some of the key things employers must know to avoid when it comes to these attempts?

Vickie Krolak (45:05):

Yeah. This is regulated by the National Labor Relations Act and the National Labor Relations Board. This is a federal law that protects employees’ rights to organize, form or join unions, collectively bargain and engage in concerted activities. It implies to most private sector employees, even if your workplace is not currently unionized.

(45:28):

Key things to remember. The employees have the right to discuss wages, working conditions, and unionization efforts. Employers cannot interfere, restrain or coerce employees to exercise these rights. The NLRA also protects employees who choose not to participate in union activities. Employers should be careful not to cause any unfair labor practices, or ULPs, in their response and actions, if you do get a petition.

(45:58):

I always say it’s really important to remember the TIPS, this is the acronym that helps you understand. The first one is threaten. You never want to threaten your employees with job loss, reduction in hours, facility closures, if they do support the union votes. You never want to interrogate. You don’t want to question the employees about the union views, you don’t want to hold meetings and you don’t want to kind of get involved in those coworkers conversations. You never want to make any kind of promises. If you don’t unionize, we promise raises, we’ll have better benefits, better perks in exchange for that rejection. Can’t do that. Then also the last one S is spy. You never want to monitor and imply that you’re watching for those union activities. You want to be careful not to come off like you’re looking at what they’re doing.

(46:56):

Really important for leadership to understand, train your managers and supervisors. They’re often on the front lines and may act without realizing that they’ve caused an unfair labor practice or any kind of illegal activities. It’s best practice to listen to your employees, if they are unsatisfied, and take time to understand why they’re feeling like this. Train your leaders on what they can and can’t do, and can and can’t say. Make sure your employee handbook is up-to-date to include a protected activities policy. This came out summer of 23 with many unionized attempts that happened with Amazon and Starbucks that we saw, there were additional laws put in place there saying these employees are protected under the National Labor Relations Act. Whether your organization’s facing unionization, or even attempt, understand that legal landscape, focus on respectful, consistent communications. That’s going to be your best defense and actions now will hopefully prevent costly mistakes on your behalf.

Lori Cole (48:08):

All right. I’m just going to do a time check here. We have about 10 minutes left. We’re going to get through these slides and see if we can get to any of our questions here. Chrisanne, what should a whistleblower protection policy look like?

.

Chrisanne Bowden (48:22):

Yeah. It’s essential that you have one, first and foremost. What a whistleblower policy is going to do is protect employees who file a complaint, report violations, participate in investigations. They’re protected under whistleblower laws. These could include Dodd-Frank Sarbanes-Oxley, but they also are covered under OSHA, FCA, the Clean Air and Water Act and some other EPA laws.

(48:47):

What should your policy look like? Employers need to draft a policy that outlines what protections are in place, offers clear reporting procedures, ensures prompt investigations with high levels of confidentiality, where possible, and defines who’s responsible within the organization to enforce the policy. Really what’s mostly covered under a whistleblower is any kind of retaliation. We hear stories of somebody, for example, EPA, somebody within an organization that handles chemicals, reports that they are dumping chemicals into a nearby waterway, which is illegal, but it’s an easy way that they’re kind of trying to dispose of something, they report it and then they’re fired. Well, that’s prohibited under whistleblower protections, but it also could be demotion, pay cuts, reassignment to unfavorable jobs, blacklisting in the industry, or even harassment that now somebody has filed some kind of complaint. Keep in mind too, whistleblower protections exist and cover the employee regardless of the outcome of an investigation. So even if the organization or leadership is completely exonerated, the employee is still protected and all the same rules apply.

Lori Cole (50:22):

I think it’s also important for management training, especially with the person who’s been reported and is perhaps under investigation so they don’t get you into more trouble with the person, the whistleblower. Then, Vickie, why is it so important for employers to look beyond federal EEOC laws and pay attention to their own state regulations?

Vickie Krolak (50:48):

Yeah. This is an up and coming area, and many states have passed laws offering additional protections beyond that federal protection under the EEOC. If you’re relying just on that federal level, then you’re definitely not compliant, I would say. It’s even expanded into some cities as well, so make sure that you look at your state policy and see what’s specific to you. If you’re a multi-state employer, take the high ground, try to include everything, but also if you can’t put everything in there, make sure you say that you do comply with all federal, state, local laws as needed.

(51:27):

Some of the things we’re seeing, at a high level, some key categories I’ll go over. Gender identity and sexual orientation. States like California, New York, Colorado are protecting gender identity, gender expression, and sexual orientation. Another one is pregnancy and reproductive health laws or any related conditions. States like Massachusetts, Illinois have broadened to protect even beyond the federal law. They protect things like reproductive decisions, birth control, IVF, and abortion. Marital status, and domestic partnerships. Not enforceable under federal law, but states like California, New Jersey and Hawaii have implemented these.

(52:10):

Another big one is the Crown Act. This is respecting hairstyles such as braids, locks, twist, and afros. More than 20 states have adopted these laws, including our big ones, California, New York, and Texas. Medical marijuana use, again, protected under not only the ... It’s protected now recreationally and medically, but it’s also protected under disability laws that separates cannabis laws in many states. So if someone has a medical marijuana card, they can be protected. Military and veteran status beyond the ERISA federal law, states like Texas and California have expanded employment protections and even preferential hiring of veterans. Some things to keep in mind, many employers are sticking with that generic federal only category. I do recommend that you take a look at what your state’s EEOC policy, audit regularly and make sure that you are in compliance with your state and even multi-state if that applies to you.

Lori Cole (53:22):

All right. Then, Chrisanne, how can regular audits really help us uncover potential compliance risks?

Chrisanne Bowden (53:33):

Yeah. Thanks, Lori. That’s one of the primary things that Vickie and I do with ... I would say, our first time clients that we work with one of the first things we typically do is either a handbook, an audit, or both. Before we wrap up, I just want to take a moment to share one of this with you. What we’ll do is thoroughly review employee documentation, data practices, wage and hour compliance, job descriptions, handbooks, and a lot more to ensure you’re in compliance and not at risk for potentially costly legal actions. As a thank you for your time, as Lori mentioned earlier, if you engage us, we’ll give you a 10% discount for that. If you’re watching this live, answer yes to the poll and we’ll reach out to you.

Lori Cole (54:18):

All right. Let’s get this poll up here so we can get to the last slide for the recertification. If you would like a free consultation with us, and I know many of you have asked questions that we are not going to get to and we sincerely apologize for that, but if you’d like to talk to either Vickie or Chrisanne, please answer A in the poll and we will reach out to you.

(54:45):

We’re really at the end of the webinar. I feel so bad that we didn’t get to any of the questions here, but we want to make sure that you have time to do that View Certification button that’s in the widget. Also, want to give a big shout-out to you for taking the time to be here today. This is such an important topic. Don’t forget to go back and look at the resource center on ihire.com and that will have version one of this webinar that you could rewatch.

(55:18):

Thank you again, Chrisanne, Vickie. Such good information. We could really spend another hour answering all these questions here. If you have any other questions, you can always reach out to our customer success team at customersuccess@ihire.com and we will connect you with the right person. Remember to click that View Certificate button in the certification widget and that’s where you’re going to be able to download those SHRM and HRCI recertifications.

(55:47):

I hope you all have a great rest of your day. Please let us know if there’s anything that we can do to help. Thank you for all your support, and the emojis. We love that.