Here are five hot issues that employers ignore at their peril.
The classic employment law/HR mistakes will always be with us. But are you ignoring these newer issues, hoping they’re just flashes in the pan? Don’t be an April fool!
1. Reassessment of marijuana testing in the workplace. If you operate in a state that allows the use of medical or recreational marijuana — and even if you don’t — have you reassessed your drug policies as they pertain to marijuana use? Do you want to continue testing for marijuana?* If you test, and if an employee is using medical marijuana for a disability, do you have a process in place so that you can determine that and begin the interactive/reasonable accommodation process with the employee? (NOTE: The Americans with Disabilities Act does not require employers to accommodate the use of marijuana, but state disability discrimination laws might.) If you’re going to limit marijuana testing to safety-sensitive jobs, have you figured out which jobs qualify?
*With some employees, you won’t have a choice. For example, U.S. Department of Transportation regulations require that holders of commercial drivers’ licenses be tested for drugs, including marijuana.
2. Workplace harassment and your Board of Directors. For the most part, I don’t think radical changes are needed for employers to avoid becoming the next Weinstein Company. But #MeToo has exposed one big gap in employer harassment prevention procedures — making sure that employees know they can go to the Board of Directors if they think they’re being harassed by someone in a leadership position, and making sure that the Board members are aware of this responsibility, know what to do, and don’t back off even when the accused individual is the CEO or the most uniquely talented person in the company. In short, Board members need harassment training, and employees need to know where they can take their complaints when the harassment comes from the top.
3. The “human element” of cybersecurity. Technology gets better all the time, but the majority of security breaches are still caused by human error. A recent test conducted in the Michigan state government revealed that one in four employees clicked on the link in a fake phishing scam, and one in five actually pulled a “John Podesta” — they clicked on the link, entered their user names, and entered their passwords. Oy! What are you doing to make your employees more skeptical so that they don’t jeopardize your company’s security?
4. Catching your own problems before someone else does. Are you periodically auditing your own practices for equal pay issues, safety, and wage-hour compliance? Nobody’s perfect, and it’s a lot better to find your mistakes yourself than to wait for the government or a plaintiff’s lawyer to find them for you. But if you do conduct an audit, be prepared to remedy any issues that come to light. The worst of all possible scenarios is to conduct an audit, find deficiencies, and do nothing about them.
5. Making sure your use of technology is tempered with good human HR practice. According to a Wall Street Journal article (I’m linking to an article in the Daily Mail, which has an accessible link to the WSJ article), AI is already being used in workplaces to assess employee survey results, determine who has the right personality traits and who doesn’t, provide coaching to individual managers about their shortcomings and strengths, and help employers determine whom to hire and fire. But employers will need to be careful that they don’t use these new technologies in ways that exploit employees or violate applicable anti-discrimination or privacy laws. If you’re using AI, are you at least thinking about these things? Are you subjecting your AI findings to a “human” review before you act?
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.