Employers today face new challenges. They must navigate the changing world of online recruitment, marijuana laws, and the evolving scope of harassment in the workplace. South Dakota Employment lawyer Jean Bender recently provided some practical insights on these topics on Keloland Living. Check out the video here or via Keloland Television.
For more information regarding employment policy review, contact Davenport Evans at 605-336-2880 or [email protected].
Brittany Kaye: Whether it’s a brick-and-mortar office or a home based business, if you’re a business owner with employees, or you’re self-employed, you need to have a lawyer on your team. That’s because lawsuits and other legal complications can arise, seemingly, out of nowhere, and you need to be protected.
Jean Bender is a South Dakota employment attorney with the Davenport Evans law firm in Sioux Falls. She’s here to tell us why one of the most important business investments you can make is with a business lawyer.
Bender: Good Morning.
Kaye: Why should you have your business attorney – employment attorney – on speed dial?
Bender: Well, I think the entire employment landscape has changed a lot and it used to be that people thought we were an at-will employment state and that meant that employers pretty much had free rein. And really over the last couple decades for sure, and with increasing frequency, that’s really not the case. So employers need to understand all the employment laws that are out there and how they can get entangled in them, to protect themselves from any claims they might have from employees.
Kaye: So what is the number one challenge that employers are seeing?
Bender: I think the number one challenge that employers are seeing right now, in our area and nationally, actually, is just the whole issue of workforce development. The fact that it’s just challenging out there. It’s great that we have such a low unemployment rate, but at the same time, recruitment and then retaining key employees is a huge, huge challenge. I was at Good Morning Sioux Falls this morning and I think every single speaker talked about the challenges with workforce right now.
Kaye: And the changing technology. Social media. How is this affecting it?
Bender: Well, the way employers are recruiting has changed dramatically. Gone are the days where you had a print ad. Everyone looked at the same local newspaper. Now we have the benefit of using social media and lots of online resources for recruiting, but along with those come challenges, some of which people don’t even realize are out there. Ways they can get in trouble with inadvertent discrimination in the way those ads are put together more by marketing people who understand Facebook marketing and Google ads and those kinds of things but may not have been trained up in the area of recognizing potential employment pitfalls out there.
Kaye: Let’s go into details of the Pros and Cons for this and just elaborate a little bit more.
Bender: Well, one of the main issues that employers need to recognize is that there is a lot of liability just in hiring and on-boarding folks. And the way that the templates are set-up for a lot of these ads, you can target, which is great. But you think you need a Spanish-speaking employee for example. It makes sense, particularly when you speak to marketing folks, that they would put into one of the targets, that it would be a Hispanic employee. Well that has the effect of weeding out anybody who is not Hispanic, which would be a violation of federal law because you would be discrimination against anyone who is not of Hispanic origin. So things like that, people don’t really realize, so they need somebody trained in the law to help them make sure their processes are totally compliant. I don’t run into many employers who are trying to run afoul of the law. A lot of times it’s just that they don’t realize where those issues are.
Kaye: And the #MeToo Movement has been a big issue. What’s next for this?
Bender: You know, it has been just a little over a year into the #MeToo Movement now and honestly I think a lot of people don’t know exactly where we are. I have seen a lot of employers make kind of what I would think of as knee-jerk reactions to any hint of a discrimination, particularly a sexual discrimination case, and a lot of key leaders have found themselves out on the street for behavior that five-to-ten years ago was, probably in their minds, perfectly acceptable.
So employers need to focus on this and try to stay ahead of it. What courts and juries are expecting has changed. They need go back to basics and review their harassment policy. Look at what kind of process they have for reporting harassment and investigating it, and for taking action on that. And then really look at the training they’re doing and bring it into this new Post-MeToo era.
Kaye: Is reviewing policies something they should be doing annually with their employment attorney?
Bender: We certainly recommend people do, especially right now when things are changing. It seems like every new decision, things are changing. I’ve tweaked our clients’ policies a fair bit in the last year and really focused a lot more on having zero-tolerance, putting a burden on having bystanders report things, and trying to incorporate a general culture of civility and respect in the workplace overall because clearly the training we’ve been doing in the last 20 years wasn’t really addressing the core problem.
Kaye: And state and municipal laws. Why can these be confusing?
Bender: The issue with state and municipal laws is that the federal government hasn’t really done a lot of legal changes so the state and municipalities have sort of stepped into that breach, but you end up with a proliferation of confusing and contradictory laws. If you are an employer and you have employees that work in South Dakota and other states, you have to be aware of what all those different states require. Sometimes a city will requires something in addition to what the state requires. And even if you only have employees here in South Dakota where we kind of have the benefit of being in a low-regulatory environment , it can be very confusing because employees hear from their friends and their relatives that they have these rights, which they may not have, but the employer might not understand that because people get confused.
Kaye: More specifically, if we’re talking about marijuana, and that issue, how it is legal in some states and not others, and if you have your business in both. How can that create challenges in your drug testing and things like that?
Bender: It can be a big challenge. Because that is a whole area where things have changed too. When Colorado and the very first states were kind of legalizing recreational marijuana, it was pretty clear the courts were saying, “Well, that is fine for that state but employers can still monitor those employees, and take any action they want to because it is illegal federally. Which is still the case, but when you look at the national map, it’s really pretty amazing how many states authorize at least medical marijuana. Even the states directly touching South Dakota. So courts have been much less lenient with employers and some states have even passed laws saying you cannot, as an employer, take an action against somebody applying for the job just because they have marijuana in their system. You have to take additional steps. And so it’s making it more complicated for employers as they try to navigate this changing landscape.
Kaye: Thank you so much, Jean. Lots of great tips today.
If you’d like to know more about how the lawyers at Davenport Evans can help you protect what you’ve built, give them a call at 605-336-2880 or find out more at the firm’s website at www.dehs.com. In addition to corporate, business, labor and employment law, they can help you with estate planning, financial services, and litigation.