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“Five Workplace New Year’s Resolutions for 2017”

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1/24/2017 by Matt Milner  | Snell & Wilmer

With the New Year comes the annual tradition of making New Year’s Resolutions—along with the annual tradition of breaking those resolutions by the second week of January. Even if last year’s Christmas tree survived longer than your new diet, there is still plenty of time to make workplace resolutions that you can actually keep. Here are five valuable projects to consider tackling in 2017.

Handbook Revisions

Treat your employee handbook like the chicken in your freezer. After 12 months, it is no longer safe to use. Revising employee handbooks calls for a delicate balance. Issue a new handbook too often, and you risk creating confusion and apathy about your policies. Revise it too rarely, and your policies could be out of compliance with applicable laws. The beginning of the calendar year, however, is a logical time to dust off the handbook and make your annual revisions. First and foremost, new laws and regulations often take effect at or around the beginning of the year. Additionally, implementing revisions to coincide with the start of a new year may seem more organic (and less controversial) to employees than an abrupt and unexplained decision to revise the handbook at a seemingly random juncture.

Even handbooks that were updated in 2016 may not reflect critical new developments in the law. For instance, OSHA issued new guidance on drug testing and workplace injury policies, the SEC put new emphasis on whistleblower protections that may make confidentiality provisions in handbooks out of date and numerous states and municipalities (including Arizona) have recently adopted mandatory paid sick-leave policies going into effect in 2017. These are just a handful of new developments that may justify the investment in a handbook review. Even if an employer does not revise its handbook, employers may want to take stock of new forms and posters that need to be updated for 2017. For example, by January 22, 2017, employers must use a new Form I-9 for verifying the identity and employment authorization of employees hired in the United States.

Job Description Audit

Written job descriptions are one of the most valuable tools in an employer’s tool belt. They are often “Exhibit A” in a variety of common employment issues: disability accommodations, performance evaluations and counseling, and exemption status under the FLSA. While a well-crafted job description can be powerful evidence, a sloppy or out-of-date job description can be just as harmful. Undertaking an audit of your written job descriptions allows an employer to confirm that its job descriptions are accurate, up to date and sufficiently detailed. Interviewing employees in each position (and their supervisors) is the best way to ensure accuracy. Additionally, for any job descriptions that list physical requirements (such as lifting requirements), investigate whether they reflect current demands of the job. These requirements take on particular importance in the context of reasonable accommodations for employees with disabilities. Finally, reviewing job descriptions is a good excuse to reflect on whether your exempt positions meet the applicable duties test under the FLSA. The duties test is based on the actual duties—not just the job description—but a well-crafted job description is an excellent starting point.

Trade Secrets/Confidential Information Agreements

In 2016, President Obama signed the Defend Trade Secrets Act (“DTSA”), which created new pathways for the protection of trade secrets in federal court. Most notably, the DTSA created a new enforcement mechanism permitting ex parte seizure of stolen trade secrets in certain limited circumstances. To be eligible for civil remedies under the DTSA, however, employers must include specific language in their trade secrets agreements notifying employees of the whistleblower protections embedded in the DTSA. Employers that have not yet revised their confidential information agreements since this major development should consider doing so this year. Additionally, consider taking a second look at how your agreement defines trade secrets and confidential information. The definitions should be narrowly tailored to focus on information that is truly confidential.

Updated agreements are also the perfect excuse to train employees on the use and protection of confidential and trade secret information. Do not assume that employees will understand what is and is not considered confidential. One of most common defenses in misappropriation claims is the argument that a company waived its right to enforce a confidential information agreement by failing to take reasonable steps to safeguard the information. Regular, well-documented training explaining the kinds of information the company considers confidential and what steps employees are expected to take to protect that information can be the difference between winning and losing these cases. At a minimum, better training reduces the risk of inadvertent disclosure of confidential or trade secret information.

Data Security

After the 2016 election, the dangers of cyber attacks became more apparent than ever. But data breaches are not limited to the realm of politics. According to a 2016 study funded by IBM, the average cost of a data breach is now $4 million per incident, with an average cost of $158 per lost record. In more regulated industries like healthcare and education, the cost per record can be more than twice as high.

There are steps that employers can take to reduce the risk of breach. The vast majority of successful data breaches begin with a “phishing” attack, which allows intruders to exploit the most vulnerable part of any data security system: human error. Phishing attacks often take the form of emails that attempt to acquire sensitive user data (such as usernames or passwords). The most effective phishing attacks appear to be from legitimate sources. However, sophisticated IT departments and outside vendors are responding by developing phishing simulations to test users on their susceptibility to real phishing attacks. Coupling these simulations with education on how to recognize suspicious emails is the first line of defense against these attacks.

Additionally, the continued expansion of the use of mobile devices in the workplace creates another point of vulnerability. In particular, the use of personal mobile devices to access work email and other sensitive data must be carefully controlled (if it is permitted at all). If policies on the use of mobile devices and remote access have not been recently reviewed, employers are better off reviewing them today to avoid becoming a headline tomorrow.

Workplace Equality

Issues of gender identity and expression have risen from relative obscurity to prominence in a matter of years. Because of the efforts of the Equal Employment Opportunity Commission to expand the scope of its enforcement efforts to include gender identity discrimination within its definition of sex discrimination and public advocacy from groups like the Human Rights Campaign Foundation, mainstream corporate America is rapidly adopting policies and practices to create a more inclusive workplace for transgender or non-binary employees.

According to the Human Rights Campaign Foundation’s 2017 Corporate Equality Index, 82 percent of Fortune 500 companies have gender identity protections expressly included in their non-discrimination policies. Fifty-three percent of the Fortune 500 offer transgender-inclusive health care coverage—over six times as many businesses as five years ago. In short, the majority of the country’s largest employers have made meaningful efforts to expand protections and benefits for transgender and other LGBT employees.

The framework published in the Corporate Equality Index is a helpful guide for employers seeking to modernize their workplace equality policies.

Conclusion

With a new administration entering the White House, 2017 is certain to be a year of change. Consider starting off the year on the right foot by taking a proactive approach to adopting best practices and catching up with new requirements that have already taken effect before tackling the many changes that will unfold in the coming year.

Source: Snell & Wilmer & JD Supra 

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