Employers Must Update Several Policies, Forms and Posters

by Allen Matkins

As the first four months of 2013 come to a close, employers should ensure that their human resources departments have updated several policies, forms and posters requiring attention after the first of the year. The posting of these notices, and the use of updated forms, often becomes an issue in both government audits (e.g., U.S. Department of Labor) and in employment litigation. Accordingly, it is important for employers to carefully monitor their compliance with such requirements.

Family and Medical Leave Act ("FMLA")

Effective March 8, 2013, employers with over 50 employees were required to post changes to the federal FMLA notice/poster entitled "Employee Rights and Responsibilities Under the Family and Medical Leave Act." The changes to this notice implement and clarify military family leave provisions and provisions regarding leave for airline flight crews and flight attendants. The sample poster may be found at: www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

Immigration Reform and Control Act

Effective May 7, 2013, employers are required to begin using an updated I-9 Form when verifying work eligibility for new employees. The new I-9 Form reflects three changes. First and most importantly, new information is requested from the employee, including email address, telephone number and foreign passport information. (The email address and telephone number fields, however, are optional.) Second, the form's instructions have been updated to provide a more detailed explanation of the information required. And third, the form reflects a new two-page format, with the first page relating to employee information and attestation, and the second page consisting of the employer's authorization and re-verification. Failure to use the updated form may result in civil or criminal penalties. This new form can be found at: www.uscis.gov/files/form/i-9.pdf.

Human Trafficking

As of April 1, 2013, the State of California Department of Justice ("DOJ") requires certain employers to post information about how to report suspected human trafficking and to provide information on where human trafficking victims can get help. The DOJ developed a model notice, which employers can find on its website. The notice, however, applies only to certain industries and businesses, such as emergency rooms, urgent care centers, farming, privately-operated job recruitment centers, businesses that offer massage or bodywork services for compensation, and premises under the Alcoholic Beverage Control Act.

Arbitration Agreements

Arbitration agreements are becoming increasingly important for employers, not only for their potential to resolve employment disputes more quickly and efficiently than traditional civil litigation, but also for their potential to reduce the likelihood of class action litigation. Over the next 90 days, both the U.S. Supreme Court and the California Supreme Court are expected to issue several important decisions on arbitration topics. These include: 

  • In Oxford Health Plans LLC v. Sutter, the U.S. Supreme Court will address what type of language in an arbitration agreement is needed to authorize classwide arbitration. 
  • In American Express Co. v. Italian Colors Restaurant, the U.S. Supreme Court will address whether an arbitration agreement that does not authorize classwide arbitration is unenforceable on the theory that it prevents the plaintiffs from effectively vindicating federal statutory rights. 
  • In Sonic-Calabasas A, Inc. v. Moreno, the California Supreme Court will address whether an arbitration agreement between an employer and an employee can preclude an employee from pursuing an administrative wage claim with the California Labor Commissioner in a process called a Berman proceeding.

In light of these forthcoming decisions, employers using arbitration agreements should ensure that the agreements are current with, and account for, the fast-evolving body of arbitration law. For employers who have not implemented arbitration agreements in the workplace, now is a good time to consider them.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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