There are five recent changes to employment law that employers should know about and may require some changes to the way you conduct business.
Two of these changes were made by the Massachusetts legislature: the Massachusetts Revision to the Personnel Records Statute and Criminal Offender Records Information statue. Another one is Executive Order 13496, which is better known as the Notification of Employee Rights Under Federal Labor Laws. Finally, there are two major pieces of federal legislation that you should be aware of: The Dodd-Frank Wall Street Reform and Consumer Protection Act and the Patient Protection and Affordable Care Act. The major changes from each are discussed below.
Revision of the Personnel Records Statute
The Act Relative to Economic Development Organization signed into law by Governor Patrick on August 5, includes an important amendment to the Massachusetts Personnel Records Statute, Mass. Gen. L. c. 149, sec. 52C. The amendment has an immediate impact on when, and under what circumstances, employers must notify employees about information being placed in their personnel record.
Before the amendment, employers were simply required to (1) provide employees with access to their record within five business days of an employee’s requesting it, and (2) allow employees to dispute any negative information in their record with a written statement articulating the basis of the dispute.
Under the amendment, however, employees are entitled to notice whenever any information that “is used, has been used, or may be used, to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action” becomes part of their personnel record. Employers must provide this notice within 10 days of when the information is placed in their record.
It is important for employers to know how broadly the statute defines “personnel record.” All records that have, or could have, an impact on an employee’s “employment, promotion, transfer, additional compensation or disciplinary action” are considered to be part of the record. So, under a literal reading of the statute, a supervisor’s e-mails negatively discussing an employee’s performance that are retained anywhere on the employer’s system would be considered part of the employee’s record.
It remains to be seen how courts will interpret the amended statute, but employers should proceed with caution. It is possible, for example, that employers failing to comply will be prohibited from admitting records showing an employee’s poor performance at trial to show it had a legitimate reason for terminating the employee.
Another important aspect of the amendment concerns how often employers are required to provide employees copies their personnel record. Generally, employers are only required to provide the record twice a year. But that limitation does not apply when employees request their record after being notified of negative information being added to their personnel record.
CORI Reform
Another new piece of legislation that employers need to be aware of is the Criminal Offender Records Information statute.
Prior to the legislation, employers were allowed to include a section on their applications inquiring into the applicant’s felony convictions and certain misdemeanors. But the new legislation includes a “Ban the Box” provision prohibiting most employers from including any questions about prior criminal convictions on their applications. However, employers are still permitted to ask questions about certain prior convictions during interviews.
Also, if an employer receives CORI information on any candidate, the employer must provide the candidate with a copy of the information before an interview. The employer also must provide a candidate with his CORI information if an it basis its decision to not hire the applicant on the CORI information.
On a related note, the Equal Employment Opportunity Commissions (“EEOC”) recently announced that it will take a closer look at employers’ use of criminal background checks and credit checks for making hiring decisions. The EEOC is concerned that these checks result in a disparate impact for minority candidates.
The EEOC has stated that it will pay especially close attention to employers with a blanket policy against hiring candidates with a criminal background or poor credit history. The EEOC will also pay close attention to employers using these checks without regard to whether there is a relationship between the particular position at issue and the results of the background check.
Notification of Employee Rights Under Federal Labor Laws
Executive Order 13496, which is better known as the Notification of Employee Rights Under Federal Labor Laws, places new posting and contractual provision requirements for employers with annual contracts in excess of $100,000 or subcontracts in excess of $10,000.
The new posting provisions require affected contractors and subcontractors to post notices in “conspicuous places in and about” the workplace informing employees of their rights under the National Labor Relations Act, including their right to join or form a union. Posters with all of the required information are available on the Department of Labor’s website.
Employers who customarily send notices to their employees by e-mail, are also required to notify employees of their labor rights by e-mail. The e-mail does not obviate the need for the poster – notice must be sent by e-mail AND notice must be posted in a conspicuous location in the workplace.
Furthermore, contractors are required to include the posting provisions in all of their subcontracts. This way the subcontractors have to agree to the posting requirements.
The penalties for noncompliance with the executive order are severe. For example, employers that violate the order may have all of their existing federal contracts terminated and may be debarred from bidding on future government work.
Dodd-Frank Wall Street Reform and Consumer Protection Act
The Dodd-Frank Wall Street Reform and Consumer Protection Act affects employers in publicly traded companies. It significantly expands the protections afforded to whistleblowers and the potential benefits to whistleblowers.
For example, a successful whistleblower may recover double back-pay awards and a percentage of monies recovered by the government as a result of the provided information. There is also a prohibition on pre-dispute arbitration agreements if the agreements do not carve out claims brought under Sarbanes-Oxley.
The new legislation also expands the statute of limitation within which whistleblower claims may be brought and extends whistleblower protections to all employees working in the consumer financial services sector who report violations of any of the laws to be administered by the newly created Consumer Financial Protection Bureau.
Patient Protection and Affordable Care Act
The Patient Protection and Affordable Care Act has special mandates for covered employers regarding break time for employees who are expressing breast milk for their nursing child.
Employers must provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express milk.” Employers also must provide nursing mothers a private location free from intrusion that may be used by the employee to express milk. The Department of Labor has made it clear that a bathroom is NOT an acceptable location for such breaks.
While there is no specific requirement in the statute that the break time be compensated, the Department of Labor has indicated that it should be compensated where employees are permitted to take other compensated breaks.
The Department of Labor has recently issued a fact sheet providing information about employers’ obligations to provide breaks and suitable space for nursing mothers to express milk.
It is important to know that this legislation may not affect you. Employers with fewer than 50 employees that can prove compliance would pose and “undue hardship” are exempt from the requirements of the new Health Care legislation.
Conclusion
Compliance with these recent changes to employment law are essential to avoiding unnecessary litigation and reducing your liability. Make sure that you are up to date on all of these changes and have taken all appropriate steps to protect your business.