Hot topics in employment law 2019

1. Hot topics in employment law 2019 Avoiding the Employer Danger Zone

2. How it all begins – hiring the right way • Background Checks – Fair Credit Reporting Act • Arrests, Convictions, Bad Credit – What Can You Use, What Can’t You Use • Criminal and credit history decisions have been subject of discrimination suits • Follow Industry Rules As Well (FMCSR, DOT, etc.) • NM – 2019, Governor Lujan Grisham signed a new law, can’t ask in initial application • Request For Accommodation/ Notice Of Disability • Don’t ask about disability in the application. • Post-offer Physical? Drug Test? • (NM has no rules re: drug tests, but caution here – defamation, privacy, stereotyping) • Contract Disclaimer- Don’t Create An Employment Contract • Job Description – Get A Good One And Use It

3. Policies and procedures • Handbooks • Keep It Simple • No Contracts Here – Include Disclaimer Language And Have All Employees Sign It. • Policies v. Handbooks v. Procedures • What Needs To Be In Writing, What Can Come Back To Haunt You. • If You Write It, You Better Follow It. • Discipline – Think Carefully Before Outlining This In Detail • Can Be The Basis Of A Discrimination Claim If You Don’t Follow It. • If You Promise Termination, You Must Terminate • Performance Reviews – What Do You Do?

4. Wage and hour law • Minimum Wage – • Federal ($7.25), State (NM $7.50) And Local Rules (ABQ $9.20/$8.20, BernCo $8.85, SF $11.80) • Overtime – Unless employee contract • Misclassification Problems – Huge In Retail • Executive Exemption, Administrative, Outside Sales Exemptions (Not Inside Sales). • All Hours Worked Over 40 In A Workweek • Not In A Pay Period Or A Month, A “Workweek” • All Minutes, Rounding, Bonuses • Must Pay Even If The Employee Breaks Your Policy Of Not Allowing OT • Consequences Are Severe – • Fed: Back Pay + 1x LD + Attorney Fees v. NM: Back Pay = 2x LD + Attorney fees and interest. • How a $2,000 Shortfall Turns In To A $200,000+ Exposure For One Employee • How You Can Manage The Risks

5. Harassment and discrimination • These Policies Should Be In Writing – Check State Law About Specifics • Policies Should Strongly Prohibit Harassment, Discrimination And Provide Guidance About How Employees Can Lodge A Complaint Free From Retaliation. • Some States Have Very Specific Rules About What Must Be Disclosed • Protected Classes: • Fed: ( Title VII) Race/Color, Religion, Sex, National Origin, (ADEA) Age, (ADA) Disability, Genetic Information (GINA), Pregnancy (PDA). • NM Adds: Sexual Orientation, Gender Identity, Ancestry, Serious Medical Condition, Spousal Affiliation. Plus, Most Of These Apply To All Employers With 4+ Employees. • What Is A “Hostile Work Environment” • Unwelcome Sex Harassment, Because Of Employee’s Sex, Sufficiently Severe Or Pervasive That It Affects Terms & Conditions, And Employer Knew/Should Know And Didn’t Take Action • Life After “Me Too” • Dating Co-workers Or Employees; Horseplay

6. Disability and family leave • What Is A Disability? • Disability = Physical Or Mental Impairment That Substantially Limits A Major Life Activity. • NM Adds “Serious Medical Condition” – Serious Health-related Impairment Other Than A Disability That Substantially Limits A Major Life Activity; Verifiable Through Medical Diagnosis. • Disability Discrimination -“Discrimination Against A Qualified Individual On The Basis Of Disability” • “Regarded As” Disabled; Interactive Process; Reasonable Accommodation • Intermittent Leave –May Be A Reasonable Accommodation • Family Leave – • 50 Employees In 75 Mile Radius • Alcoholism/Drug Addiction V. Intoxication At Work • Where Is The Line Between Disability And Terminable Offense? • Retaliation – Even If You Follow All Of The Rules, You Still May Not Be Safe

7. How it all ends – termination problems • Ask Yourself, Why You Are Terminating • Did The Employee Break A Policy Or Rule? Is It Documented? Did You Follow Your Policy? • Is This About Conduct At Work Or Outside Of Work? • Criminal Conduct? Arrest Or Conviction? Job Related? • Social Media? • Did The Employee Harass Or Discriminate? Was the Investigation Fair? Is It Documented? Is The Employee In A Protected Class? Did They Recently Take Leave? Is There A Possible Disability Or Recent Request For Accommodation? • Are You Honestly Assessing The Situation, And Fairly? • Would Any Other Employee Be Fired If They Did This? If Not, Proceed With Extreme Caution… • What Reasons Are You Giving? Are There Unspoken Ones? What Are You Putting In Writing? • Post-Employment References –It Is Always Safer to Give Just Title, Position, Dates Of Employment.

8. Greener pastures? CANNABIS at WORK? • NM Decriminalization & Second Chance Law – Expunges Certain Crimes • Employers Can Terminate Employees For Impairment In Violation Of Employer Policies. • So Far, No Employees Have Won A Case In NM For Wrongful Termination When Fired At Work For Positive Marijuana Drug Test, Even With A Medical Card. • NM – Worker’s Compensation Must Pay For Medical Cannabis • AZ & DE – Courts Found For An Employee Who Had A Medical Marijuana Card And Sued For Wrongful Termination After A Positive Drug Test. • Fed. Case In NM- Garcia V. Tractor Supply. Employer Did Not Need To Accommodate Medical Marijuana Use Because The State Statute Didn’t Protect Employees This Way & Found Federal Preemption. • This Kind Of Case Will Probably Be Raised In State Court And The Result May Not Be The Same. • Anticipated Legislation Will Allow Recreational Use Of Cannabis And Protect Those With Medical Marijuana Cards. It Will Also Expunge Marijuana Possession Convictions. We Will Revisit In 2020.