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Polishing Your Policies for 2013

Polishing Your Policies for 2013

The Inside Perspective
(January 7, 2013)

As the New Year begins, it is time to review and polish your employment policies. While top-to-bottom handbook reviews are a good practice on a regular, periodic basis, here is a summary of critical changes to consider now, in areas of the law that have recently changed.

Background Check -- new forms
Effective January 1, 2013, employers checking the credit reports and/or criminal records of applicants must use the revised "A Summary of Your Rights Under the Fair Credit Reporting Act." Employers must give it, along with a "pre-adverse action disclosure" letter, to any applicant or employee before making any adverse employment decision based upon the results of a background check. Remember, North Carolina and Georgia have the unusual rule that an employer, before running a background check and as part of obtaining consent to do so, must also furnish applicants and employees with a notice of their rights regarding security freezes ( for North Carolina and for Georgia).

Requests for Medical Information – nothing genetic please!
As happens in the early years of any new statute, the impact of the Genetic Information Nondiscrimination Act of 2008 ("GINA") continues to play out in new and different ways. With limited exceptions, employers may not obtain genetic information from individuals or use their genetic information in making employment decisions. Because genetic information arguably includes almost all medical history unrelated to a present condition, employers can trip up if FMLA forms, applications for disability benefits, or paperwork on ADA accommodation requests, to name a few areas, ask for more than fits today's health concern. Helpfully, the EEOC has recommended "safe harbor" language that is a needed update to policies, forms and other types of documentation that relate to medical information requests.

At-Will Policies & More -- new NLRB concerns
Employers without unions found 2012 to be a year when a newly assertive NLRB took on employee handbooks and at-will policy statements, looking to find ways they violate employees' rights to engage in protected concerted activities. Now is the time to revise at-will policies that imply no one can ever have a contractual right to employment and disciplinary rules that discourage complaining about working conditions or sharing information about employment. Most employers need legal help walking this fine line that the NLRB, frankly, is still drawing.


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