It’s that time of year again to reflect on this year’s achievements and set goals for the new year.  With the beginning of 2014 upon us, we encourage personnel and human resources directors, managers and 

1.  Evaluate Your Agency’s Handling of Disability-Related Issues

Employee disability-related issues are among the most complicated and confusing that employers face.  It is no surprise that the number of workplace disability discrimination claims filed with the EEOC has increased every year since 2005.  In addition, approximately 67% of the complaints filed with DFEH alleged disability discrimination.  Given this trend, it is critical that employers understand their obligations under the disability laws.  This includes understanding the interaction between the disability interactive process, workers’ compensation, FMLA/CFRA, pregnancy-related laws, and fitness for duty examinations.  Knowing the differences between these laws and how to comply with each of them will help employers navigate through employee disability-related issues.  

2.  Get Compliant With the Affordable Care Act

Effective January 1, 2015, employers with 50 or more “full-time equivalent” employees may be assessed a penalty if they fail to offer affordable health care coverage to employees and their dependents.  Therefore, 2014 will be a big year for employers to take the steps necessary to ensure compliance with ACA.  For example, employers who wish to invoke the “Look Back Measurement Method Safe Harbor” provision for purposes of identifying “full-time” employees as defined by ACA (30 or more hours of service per week) must start tracking employee hours now.  In addition, in order to comply the ACA reporting requirements which go into effect at the beginning of 2015, employers should start developing a system for tracking the information needed for the reports.  Examples of information needed for the report include month by month details such as the number of “full-time” employees and whether health care coverage was offered.  Employers issuing 250 or more W-2 forms also need to remember that ACA requires annual informational reporting of the total cost of health care coverage on W-2 Forms.

3.  Update Personnel Rules, Policies and Regulations

Last year we encouraged employers to update their personnel rules, policies and regulations.  We are still seeing policies that have not been revised for years.  As a result, we are making this a resolution again for 2014.  There have been many changes to federal and state employment laws over the last few years which cover a wide variety of areas.  For example, the California Fair Employment and Housing Act was amended to include military and veteran status as a protected classification.  Also, effective July 1, 2014, a state or local agency will be prohibited from asking an applicant to disclose information relating to a criminal conviction until the agency has determined that the applicant meets the minimum employment qualifications for the position.  These two recent changes alone will require employers not only to update their policies but also their employment applications.  Therefore, public employers are encouraged to audit all policies to ensure they reflect current law.   

4.  Update Job Descriptions

We are also urging employers to update their job descriptions in 2014.  Updating job descriptions will ensure that they accurately reflect the position’s essential functions.  This is critical to the disability interactive process.  It is also important to have updated job descriptions to ensure that employees are still working within their job class.  For example, it is not uncommon for other employees to absorb the work of laid off workers.  However, allowing employees to perform tasks that are not contained in their job descriptions could subject the agency to claims for out of class pay and other areas of potential liability.

5.  Document, Document, and Document

The importance of good documentation cannot be emphasized enough.  Whether you have just completed a disability interactive process meeting or counseled an employee on performance issues, it is critical to create and maintain documentation of these interactions.  Also, when writing annual performance evaluations, employers should make sure they accurately and honestly reflect the employee’s work over the preceding 12-month period.  Regular documentation of communications with and actions taken towards employees can be used to support discipline.  It can also be used as tool to give feedback to and motivate employees. 

Following through on these five resolutions will go a long way towards strengthening your agency and reducing the risk of lawsuits.  If your agency needs assistance with implementing these resolutions, our offices are ready to help.