Thursday, August 11, 2016

More Mythbusting

Here at the Navigator, we were very pleased by the positive reaction to last month’s post about employment law myths that can get employers in trouble, and we’re glad it was helpful.  Although the inaccurate beliefs described last month are among the most common we encounter, there are many more that can create liability for the unwary employer. 
“Hiring through an agency or third party means no worries about employment law.” This is a common misunderstanding, and one that is sometimes promoted – intentionally or unintentionally – by temp agencies, staffing services, and providers of leased employees.  The law is pretty clear on this: organizations that use workers provided by a third party agency or service are joint employers of those workers, and will be liable to the workers for violations of employment law that occur during the workers’ assignment to them. 
“We hire independent contractors – less paperwork for us, more flexibility for them.”  Workers are not independent contractors just because an employer wants them to be.  Similarly, the fact that a worker requests independent contractor status doesn’t make it okay for the employer to treat him or her that way.  The IRS, the Department of Labor, and individual states’ statutes and regulations control and define independent contractor status.
“We’re an EEO/AA employer.” All employers should be “EEO” employers; that is, they are required to abide by federal, state, and local anti-discrimination laws that require equal employment opportunity regardless of race, religion, gender, age, disability, and other protected class status.  But “AA”? Affirmative action, defined generally as positive action designed to remedy the effects of past discrimination, is not required of most employers.  Government contractors often have to adopt affirmative action plans, but absent a court order most other employers do not, and may violate the law by having a voluntary affirmative action plan.
“Disability discrimination laws only apply to permanent disabilities.” This misunderstanding of federal (and many state) discrimination laws has hung on for a long time.  In fact, applicants and employees affected by temporary illness or disability are protected by disability discrimination laws as long as the illness or disability is a “physical or mental impairment that substantially limits one or more major life activities.” An impairment that is “episodic” or “in remission” may qualify for protection, and even temporary, non-chronic impairments can qualify if they are substantially limiting.
“We’re non-union.  The National Labor Relations Act doesn’t apply to us.”  Although the NLRA contains lots of provisions that apply only to employers’ collective bargaining agreements with unions, that doesn’t mean non-union employers can ignore it.  The National Labor Relations Board has taken positions on protected concerted activity, social media policies, confidentiality policies, and joint employment that all employers need to understand.
We run into these myths frequently, often in our dealings with very well-intentioned employers.  Because they persist and because the consequences of believing them can be significant, we’ll keep trying to debunk them.
Posted by Judy Langevin