13 Labor & Employment Resolutions for 2013, Part 1On January 22, 2013 by Schnader in Labor and Employment
By Scott J. Wenner and Alizah Z. Diamond
Schnader’s end-of-year employer Alert – a “to-do” list of 13 resolutions for 2013 – garnered enough interest to prompt us to share our suggestions here. Today we post the first seven resolutions for 2013. We will post the final six next week. As 2013 already is underway, do not let too much time pass before considering implementation of these items as part of your plans for the year.
1. Develop a natural disaster plan (or enhance your existing plan) to address issues such as employee pay, leave, benefits, safety and collective bargaining as well as communication with and among employees in the event of another major natural disaster like Hurricane Sandy or an earthquake.
2. For employers with 50 or more employees, prepare for upcoming reporting and recordkeeping deadlines and significant tax changes under the Affordable Care Act (aka “Obamacare”). This includes providing employees with a summary of benefits and coverage and plain language for plan years commencing after September 22, 2012; incorporating the value of employer-provided health care coverage in employees’ 2012 W-2 forms due by January 31, 2013; and providing employees by March 1, 2013 with written notice of the availability of health insurance through state exchanges and of tax credits to offset employee premium costs where employer-sponsored insurance is not provided. Other major changes under Obamacare effective January 2013 include an additional 0.9 percent payroll tax for Medicare for certain high income workers, a new $2,500 cap on employee flexible spending accounts and the termination of an employer tax subsidy that helps pay for retirees’ drug benefits. Such changes are a precursor to more significant changes expected by the fall of 2013, by which time insurance companies, states and the federal government are required to establish a system allowing individuals to purchase insurance through exchanges.
3. Review and update employee and applicant criminal background check policies and practices (a) to consider the Equal Employment Opportunity Commission’s (EEOC) 2012 enforcement guidelines and (b) to ensure compliance with new notification and reporting requirements under the Fair Credit Reporting Act, including providing employees and applicants with modified Summary of Rights forms in January 2013.
4. Review and update employee whistleblower and anti-retaliation policies and procedures in view of the reported receipt by the Securities & Exchange Commission (SEC) of 3,000 formal “tips” of securities laws violations in 2012 from persons in the U.S. and in nearly 50 foreign nations hoping to receive large financial bounties should the SEC successfully prosecute the companies they reported. (See SEC’s 2012 Annual Report on Dodd-Frank Whistleblower Program) Publicly traded companies are not the only employers affected by expanded whistleblower protections, however. At least 20 other federal laws, including the Internal Revenue Code, that regulate both public and private companies in a wide variety of businesses, plus the laws of most states, also protect whistleblowers from adverse employment action and have contributed to a pronounced increase in whistleblower lawsuits brought by increasingly aggressive and specialized plaintiff advocates. Special attention to policies and procedures for handling whistleblower complaints and preventing retaliation will be more important than ever in 2013.
5. Review and update electronic communications, social networking and media policies and practices in view of significant activity by Obama appointees, including advice memoranda and decisions published by the National Labor Relations Board in 2012 proscribing social media policies that restrict employee communication of matters of interest to coworkers and overturning discipline of both union and non-union employees for complaining on social media about working conditions, pay or other terms of employment, on grounds that they unlawfully interfere with the employees’ right to “concerted activity” under Section 7 of the National Labor Relations Act.
6. Review compensation policies and practices for female employees to ensure compliance with the Equal Pay Act and Title VII in view of the White House Equal Pay Task Force Report in April 2012 and EEOC initiatives signaling greater Administration focus on and increased administrative investigation and enforcement activity to address perceived violations of the act in 2013.
7. For employers that are federal contractors or subcontractors, prepare for final regulations concerning disabled workers and veterans from the Office of Federal Contract Compliance Programs expected before mid-2013 that, among other things, would require federal contractors to set a 7 percent hiring goal for workers with disabilities and to establish annual hiring benchmarks for protected veterans, both of which would impose a substantial increase in data collection, recordkeeping, recruitment, training, and policy dissemination requirements.