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New Year’s Checklist for Employers: Did You Miss Anything in 2011?


Richard Gerakitis

Ashley Z. Hager

Evan H. Pontz

Evelyn Small Traub

Gary D. Knopf

Rebecca E. Ivey

In 2011, we saw some significant developments in labor and employment law, from federal regulations and agency enforcement to Supreme Court decisions.  As you prepare your 2012 to-do lists, you may want to ask yourself these questions:

  • Are you prepared for new W-2 reporting requirements?  Soon, employers will be required to report the aggregate cost of their employer-sponsored health coverage on employees’ Form W-2s.  While the first W-2s to be affected will be those issued by employers in 2013 (for the 2012 calendar year), employers will need to begin capturing the information necessary to meet the reporting requirements on January 1, 2012.  Our Employee Benefits Group’s manual provides guidance on the steps that need to be taken now in order to be ready, and has been updated to reflect guidance issued on January 3, 2012.  
  • Are you up-to-date on the latest ADA regulations?  In March 2011, the EEOC issued its final regulations on the ADA Amendments Act.  Among other things, the new regulations clarify that employers should focus less on whether an employee is “disabled,” and more on what employers can do to reasonably accommodate an employee’s requests for assistance in performing the job.  In this November 2011 article, we explain key changes in the new rules, gather reactions from HR professionals, and show how these new rules were applied in a recent case. 
  • Did you know that the NLRB’s twice-delayed poster requirement is still looming?  The National Labor Relations Board issued a Final Rule requiring employers to post notices informing their employees of their rights under the NLRA.  Due to litigation, the deadline for compliance was changed twice in 2011, and now employers have until April 30, 2012 to comply with the Final Rule, which requires employers to post an 11-by-17-inch poster that describes employees’ labor law rights.  For more information about this new rule and its specific requirements, take a look at our November 2011 article on this topic, and keep an eye out for any more delays or updates on this new requirement.
  • Are you compliant with E-Verify?  E-Verify enforcement increased at both the state and federal levels in 2011, with several new state laws requiring E-Verify usage and increased federal enforcement through I-9 audits, E-Verify system reviews, and anti-discrimination lawsuits.  As a result, employers must remain vigilant about employment verification policies and practices, balancing verification requirements against anti-discrimination efforts.  Consider reviewing our November 2011 article on this topic, and take a look at our Immigration Practice Group’s complete E-Verify survey for even more information, including a full discussion of the 17 states currently having E-Verify-related laws and the E-Verify requirements for federal contractors.
  • Did you know that the EEOC is cracking down on employers’ use of credit and criminal background checks?  The EEOC has recently offered guidance, and even filed a lawsuit on behalf of a terminated employee, stating the agency’s position that employers’ use of credit and criminal background checks may have a disparate impact on members of particular ethnicities, national origins, and races.  Employers should ensure that they have a clear, objective business need for using credit or criminal history, and should evaluate each job position individually to determine what background checks are relevant to the particular position before any background checks are obtained.  For more information about this crackdown and what it means for your business, review our July 2011 article on this topic.
  • Have you updated your employment practices and procedures to reflect new law on discrimination and retaliation?  In three cases, the U.S. Supreme Court expanded the scope of employment claims in significant ways.  In Thompson v. North American Stainless, the Supreme Court held that an employee, who never personally engaged in any protected conduct, was entitled to bring a retaliation claim under Title VII based on the theory that he was terminated because of his fiancée’s protected conduct.  Another decision, Staub v. Proctor Hospital held that an employer can be liable for the discriminatory acts of a supervisor, even if the supervisor did not actually make the final employment decision.  Finally, in Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court found that the Fair Labor Standards Act protects employees who “file any complaint,” whether written or oral, regarding purported wage and hour violations.  For more information about these cases, please see our January 2011 and July 2011 advisories.
  • Have you updated your policies to comply with GINA?  The Genetic Information Non-Discrimination Act (“GINA”) took effect in November 2009, but the EEOC issued final regulations this past year.  GINA strictly prohibits employers from discriminating against employees and applicants on the basis of their genetic information.  Because GINA’s non-discrimination provision is very similar to other federal anti-discrimination statutes, the regulations focus on GINA’s unique prohibition against acquiring and using genetic information.  For more information on GINA and its key exceptions, review our April 2011 article on this topic.

There will certainly be more developments in these areas – and others – during 2012, and we will carefully monitor those changes and report on them.  If you have questions about any of these requirements or how they may affect you and your business, you should call any of the lawyers in Troutman Sanders LLP’s Labor & Employment Group. 

© TROUTMAN SANDERS LLP. ADVERTISING MATERIAL. These materials are to inform you of developments that may affect your business and are not to be considered legal advice, nor do they create a lawyer-client relationship. Information on previous case results does not guarantee a similar future result. Follow Troutman Sanders on Twitter.