Legislative Update
Employers in 2010 may see many
changes in the laws and regulations governing the employer-employee
relationship. Listed below are a few proposals to watch from the
federal and state level:
The Obama Administration backed
the Healthy Families Act in 2009, which would have guaranteed
7 paid sick days a year to workers in companies with 15 or more
employees. Although the Act did not pass in 2009, experts expect
proposal of a similar mandatory sick leave bill and many believe
it will have greater support in 2010.
In 2009, labor groups pushed Democrats
to pass the Employee Free Choice Act, but the bill took a back
seat to efforts to reform the country’s healthcare system. The
act, which will more than likely take a front seat in 2010, proposes
to alter the employee-employer relationship in 2 important ways:
- It replaces secret ballot elections with
signed authorization cards. Once union organizers collect signed
cards from a majority of employees, the National Labor Relations
Board must certify the union as the bargaining agent for the
employees; and
- It authorizes government-appointed arbitrators
to prepare the collective bargaining agreements on newly organized
employees and employers when opposing sides cannot agree. As
a result, both sides are forced to accept the arbitrator’s contract.
This is commonly referred to as “interest” arbitration.
Proposed Indiana SB 0352 provides a tax credit
for employers hiring an individual laid off from a place of employment
in Indiana. If an employer rehires an employee it laid off, the
bill provides a credit to the employer’s unemployment insurance
account.
Unemployment Benefits after Military Service
Proposed House Bill 1228 authorizes a military
service member to be eligible for unemployment compensation benefits
for the first six weeks after discharge from the service without
the usual requirements of registering for work and reporting for
availability of work. The service member must, however, serve
the standard 1 week waiting period before collecting unemployment
benefits.
Proposed Indiana HB 1095 provides that an employee
who has been employed for at least 6 months and worked an average
of at least 80% of a full-time equivalent position is entitled
to take 24 hours of paid leave and 16 hours of unpaid leave in
any 12 month period. An employer may require employees to submit
a written request for the leave at least 7 days prior to the leave,
if the leave is foreseeable. Otherwise, the employee must give
as much notice as practical. The leave may not be taken in increments
of less than 4 hours for paid leave and 1 hour for unpaid leave.
This bill would only apply to employers of 10 or more employees.
Proposed House Bill 1120 provides that an individual
performing services for a contractor or subcontractor on a construction
project is considered to be an employee of the contractor or subcontractor,
with certain exceptions. This bill allows the Department of Labor
to assess various civil penalties against the employer for failing
to properly classify individuals as employees, including prohibiting
awarding contracts for certain public work projects for a period
of 4 years after the improper classification.
Indiana SB 0207 provides that an employee who
knowingly or intentionally makes a false statement of independent
contractor status to the Department of State Revenue commits a
Class D felony. An employer or employee who classifies an employee
as an independent contractor for the sole or primary purpose of
avoiding the worker's compensation law commits a Class A infraction.
A person who makes a false representation that an employee is
an independent contractor for the purpose of avoiding the unemployment
compensation law commits a Class C misdemeanor.
Proposed Indiana HB 1287 expands the limited
purposes of wage assignments specifically listed in Indiana Code
§ 22-2-6-2 to include assignments for any purpose described
in a written agreement between an employee and an employer.
Proposed Senate Bill 23 delays from January
1, 2010 to January 1, 2011, changes in the taxable wage base and
employer contribution rates for the unemployment compensation
system.
Proposed House Bill 1077 authorizes an economic
development project in Warrick County and specifies that permitted
uses of sales tax increment may be captured within the Warrick
County district.
Indiana proposed HB 1128 provides a statute
of limitations for causes of action for occupational disease.
It provides for a product liability action against persons who
mined or sold commercial products containing or using asbestos.
(Current law provides for a product liability action against persons
who mined and sold commercial asbestos.) It provides for a 1 year
period, ending July 1, 2011, to file an otherwise time-barred
cause of action for: (1) occupational disease; (2) personal injury,
disability, disease, or death resulting from exposure to asbestos;
or (3) property damage resulting from asbestos.
Proposed House Bill 1011 makes it a Class A
misdemeanor for an employer to require an individual to: (1) become
or remain a member of a labor organization; (2) pay dues, fees,
or other charges to a labor organization; or (3) pay to a charity
or another third party an amount that represents dues, fees, or
other charges required of members of a labor organization; as
a condition of employment or continuation of employment.
The Indiana House HB 1065 and Senate SB 0025
have passed their own versions of bills that prohibit employers
in Indiana from adopting policies that ban employees from keeping
firearms in locked cars on company property.
Background Checks: Employers
Beware
The struggling economy has employers
receiving applications from an overwhelming number of job seekers.
As a result, many employers are more carefully scrutinizing potential
applicants by conducting criminal background checks. Background
checks can minimize exposure to negligent hiring suits and maximize
chances of hiring quality employees. However, using background
checks incorrectly as a risk management tool can possibly expose
employers to discrimination claims.
The Equal Employment Opportunity
Commission (EEOC) has long viewed excluding individuals from employment
because of a criminal conviction as unlawful discrimination under
Title VII of the Civil Rights Act of 1964, unless the policy is
justified by a business necessity. Statistics show that African-Americans
and Latinos are convicted at a rate disproportionate to their
representation in the population. As a result, the EEOC asserts
hiring decisions based on criminal records could potentially have
an adverse impact on these individuals and therefore be discriminatory.
Recently, the EEOC determined there
was an increase in discrimination charges filed by job applicants
claiming employers unfairly excluded them from employment based
on information contained in background checks. Therefore, the
agency decided to remind employers about practices that could
lead to litigation. The EEOC advises employers to consider the
following three factors in determining whether to screen out a
candidate with a criminal conviction: (1) the nature and gravity
of the offense; (2) the length of time that has passed since the
conviction; and (3) the relationship of the conviction to the
particular duties and responsibilities of the job in question.
Employers who continue to apply
a blanket ban on hiring ex-offenders or who fail to use hiring
criteria that take into account the nature of the offense and
its relationship to the job face exposure to charges of race discrimination.
Given the EEOC’s increased focus
on criminal background check policies, now is the time for employers
to review their background check policies to ensure those policies
are consistent with state and federal guidelines. Should you need
assistance with this, please call a member of the KDDK Labor and
Employment group.
The articles
in The KDDK Advantage are considered legal information and should
not be taken as legal advice.
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