Employment Law: Who needs it? Maybe you.

Business owners need to educate themselves in basic employment law and upcoming changes to the law

The fallout of the #metoo “I’ve had enough” movement is still being felt as people in high positions of perceived power are still being exposed. With anything of this magnitude – any employee relations issue really – business owners need to educate themselves adequately in basic employment law and upcoming law changes for the benefit of their business as well as for their employees.

Employee issues are tricky, and situations may land in a grey area. Otherwise, it would be too easy and there would be far fewer employment law attorneys and the job of the Human Resources professional would be … well, mundane, to say the least.

With employment changes coming through on a federal, state and local level, we’ve already seen alterations that have and will affect everything from workplace law to company policies. These developments should lead to positive changes in the work environment.

Here are four issues to be aware of as a small business owner.

Ban the Box

In case you’ve been busy minding the store, this is the legislation that refers to the “box” on job applications asking prospective employees whether they have ever been convicted of a crime. Some jurisdictions make it illegal for employers to ask applicants such questions until the interview stage while others ban the practice until a conditional job offer has been made.

The trend of states and municipalities enacting what people are calling “ban the box” laws is part of a movement to prevent employers from treating all criminal convictions as a sort of “Scarlet Letter” that has the effect of discriminating against minority applicants.

It began appearing here and there in 2016 with some jurisdictions across the country enacting and enforcing this legislation, followed by hundreds of companies reading the tea leaves and removing “the box” from their applications, only asking the now potential new hire if there “is anything that might come up on his/her background check to preclude him/her from employment.”

Thirty states have adopted statewide laws or policies and 10 states have also mandated the removal of conviction history questions from job applications for private employers. Washington state’s law will take effect on June 6, 2018. Oregon state implemented the law in January 2016.

If you haven’t yet done this, you need to – now.

Compensation

While many companies espouse transparency of pay practices, it might also breed pay discrimination. Many states have made it illegal for employers to ask job candidates how much they earn in their current or past positions, forcing companies to “pay what the job is worth based on the job itself and the skills and qualifications of the applicant.”

Regardless on which side of the discussion you land, expect to see more activity around this hot topic in 2018. It is worth following the lead and stop asking this question? Besides, does it really matter what they earned at their last place of employment? If you offer a compelling value proposition, money is not the only way to a candidate’s heart.

Workplace Harassment

Okay, so this one should not be a surprise to anyone. Just because you aren’t a household name (Harvey Weinstein, Kevin Spacey, Woody Allen, James Franco to name a few from the entertainment industry) does not mean you have nothing to worry about. If you’re acting inappropriately, stop it. If you’re not, you have nothing to worry about.

The reality is that many U.S. employees still have no legal recourse if they are reporting harassment at work, particularly those employed at small businesses. And many continue to fear backlash and blacklisting. No wonder the (EEOC) reports that about 70 percent of those who experience sexual harassment at work don’t tell a superior about it.

The tagline from our Department of Homeland Security and TSA friends comes to mind: “If you See Something, Say Something.” The expectations work both ways – for employees to speak up and for leaders to lead by reinforcing the company’s values and workplace policies.

The Gig Economy – Freelance, Flexible and Remote

A contingent workforce offers the small-business owner an employment quick reaction force to be able to handle a variety of tasks and projects that benefit both parties. No I-9s, benefits or employee relations issues to deal with and, for the worker, they get the flexibility of getting the job done on their time, i.e., in the middle of the night if they choose. If the expectations and scope of the project are clear, they know the milestones and deadline to meet.

The National Labor Relations Board overturned an Obama era Board determination that affects the idea of co-employment. Though this doesn’t directly affect freelancers, policy creep could impact some of your other types of hiring decisions and use of a temporary employment agency. You can read more about this decision at the following link: www.nlrb.gov/news-outreach/news-story/nlrb-overrules-browning-ferris-industries-and-reinstates-prior-joint.

However, there are other considerations for existing employees. Many of them desire that same kind of flexibility and are willing to leave, or stay to get it. Staples recently conducted a study on this important topic and discovered that this perk is moving up the ladder of importance for employees and candidates alike.

Summary

If you haven’t reviewed your policies and employee handbook in a while, it’s time you put that on the top of your “to do” list. There is a great deal to be said for communicating expectations to employees and reinforcing them.

Jeff Graham, SHRM-SCP, CCP is an HR consultant with Salsbury & Co., a business management consulting firm in Vancouver. For more information on HR-related issues or HR consulting services, Salsbury can be contacted at info@salsburyandco.com.

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