Four new employment laws went into effect in Indiana in 2012; Right-to-Work, Smoking Ban, Criminal History Restrictions and redefining the Blacklisting Statute.
A well-publicized two-year struggle ended when Governor Daniels signed the Right-To- Work Law (RTW) in February. The law became effective for union contracts created, renewed or altered on or after March 14, 2012. As a result, employees are free to join or not join a union. Employees cannot be required to pay union dues or assessments of any kind, in any amount to a labor organization, a charity or any third party as a condition of employment.
RTW covers employers with as few as one employee in Indiana. This means employers from other states with one Indiana employee are required to abide by the law. However, the law does not apply to any government employees or employees covered by the Railway Labor Act.
The Statewide Smoking Ban also received a lot of press as restaurants, bars, casinos and other betting facilities, privates clubs and even hookah bars jockeyed for exemptions. Though many won an exempt status, all restaurants even with bars must comply.
The law applies to an enclosed area of a structure in which the public is invited or permitted or employed. The prohibition includes the area within eight feet of a public entrance of employment or public place.
Employers are required to inform current and prospective employees of the ban; remove all ashtrays and smoking paraphernalia from the place of employment and post conspicuous signs at each public entrance regarding the eight foot prohibition.
There are state approved signs available at http://www.in.gov/atc/ and local government services available to assist employers and their employees to become smoke-free.
It is important to note, Indiana has a law prohibiting employers from discriminating against employees and applicants due to off- duty tobacco use.
When the Equal Employment Opportunity Commission (EEOC) updated its guidelines on the use of Criminal History, many states including Indiana followed suit. Effective July 1, 2012 restricted or sealed criminal records do not need to be reported on a candidate’s application for employment or any other document. This law also prohibits Indiana state court clerks from releasing any action against an individual if it was dismissed or not prosecuted; is adjudicated either to not have committed the infraction; or to have committed the infraction and has subsequently satisfied any judgment attendant to the infraction conviction more than five years ago.
Consumer Reporting Agencies may only provide employers information pertaining to criminal convictions and have certain specific limitations.
The century-old Indiana Blacklisting Statute was made clear by the Indiana Supreme Court this year. After two employees who signed non- compete agreements went to work for a competitor were sued, along with the competitor by the former employer; the employees countered and sought damages under the Blacklisting Statue.
The State Supreme Court determined the statute applies to discharged and voluntary terminated employees; does not allow recovery of attorney’s fees as compensatory damages; and prohibits employers from creating and circulating an actual blacklist to other employers. Employers are prohibited from attempting to inhibit or prevent former employees from obtaining future employment.
The Indiana Supreme Court established that employers can attempt to enforce non- competes, protect trade secrets and designate an employee as ineligible for rehire without violating the Blacklisting Statute.
Staying aware of employment legislation to keep policies and practices up-to-date is a primary function of the human resource role.
NLRB strikes again!
During a decertification election campaign, a pro-union employee wrote vulgar, offensive and even some threatening comments on union newsletters in the break room. He did this anonymously and initially denied the allegations.
The employer conducted a sexual harassment investigation, complying with Title VII which resulted in the employee’s termination.
The National Labor Relations Board (NLRB) determined that the employee’s rights under Section 7 were violated. See the Board’s decision: http://www.nlrb.gov/ case/02-CA-039518
Nearly 3000 EEOC charges filed in Indiana in 2011
Indiana ranked among the top states for the number of suits filed, ranking 13 in the country. The top three were Texas, Florida and California. More than 11 EEOC suits are filed every day in Indiana, with retaliation
claims leading, accounting for 33%.
Volunteer or Employee?
Courts are seeing an uptick in the number of Fair Labor Standards Act cases related to individuals who volunteer for an organization. Courts use an “economic reality” test to look at all the circumstances. The test includes the employer’s control over the work; the alleged employee’s opportunity for profit or loss; alleged employee’s investment of equipment or materials; whether a special skill is required of the service rendered; the duration of the working relationship; and the extent to which the services rendered is an integral part of the alleged employer’s business.