The impact of the changes to disclosure requirements, introduced as part of the Employment Relations Act changes, is also likely to end up in court. Top this off with likely revised privacy legislation and employers are in for another big year.
Here are our top ten tips for employers:
1 Health-check your employment agreements. Regular checks ensure these comply with all legal requirements, follow "best practice" and give the employer maximum flexibility in managing the relationship. The Employment Relations Authority recently found an employer breached the aspirational provisions in its employment agreement (aiming to provide the employee with opportunity and training to develop to full potential), so you may wish to review what these provisions deliver.
2 Check your leave payments. While a payroll function can be contracted out, the liability for any miscalculations still rests with the employer. Regularly checking a sample group of payments avoids systemic errors that may be costly and time-consuming to resolve. The Ministry of Business, Innovation and Employment is also focusing on minimum standard enforcement in 2015 so we can expect increased checks from labour inspectors.
3 Prepare to say goodbye to the 30-day rule. From March 6, employers with employees covered by a collective agreement will no longer need to hire newcomers on the terms of the collective for the first 30 days. Employers, however, still must provide new employees with details about the union and a copy of the collective agreement so now is the time to review your recruitment processes in preparation for the changes.
4 Prepare for health and safety changes. From 2015 all businesses can expect changes in the way health and safety is managed. Increased employee participation, increased board and senior management reporting, increased contractual obligations and wider duties will become the norm. Smart businesses will be reviewing their health and safety policies and procedures now to be ready for the change.
5 Check your social media policy. Social media can affect every facet of an employment relationship. Who "owns" employee LinkedIn contacts? What can employees post to Facebook? Can you check up on a sick employee's Facebook account? All questions to be thinking about.
6 Retrain your managers to deal with bullying and inappropriate workplace conduct. Poorly handled investigations into bullying or sexual harassment complaints can damage a company's reputation and create litigation risk. All employees should be aware of the standards expected of them and know what to do about inappropriate conduct. All managers should know how to address any issues raised and where to seek assistance in resolving complaints.
7 Understand the developments in equal pay. The Terranova case established that the courts can consider other industries and workplaces when deciding whether an employer in a female-dominated occupation has complied with its equal pay obligations. With Terranova headed to the Supreme Court in 2015, and billion-dollar settlements taking place in other countries, this is a key area to watch.
8 Review your drug and alcohol policy. The courts weigh the balance between human rights and health and safety by interpreting drug and alcohol policies strictly, particularly where these allow random testing. There have been several Employment Relations Authority and Employment Court cases in 2014, so now is a good time to review your policy to ensure it does what you want it to do and that what you want to do will stand up to scrutiny if challenged.
9 Get familiar with restructuring and redundancy requirements. The Court of Appeal's decision in Grace Team Accounting v Brake confirmed that when deciding whether redundancy is justified, the courts must look at whether the employer acted fairly and reasonably in all the circumstances, including the way it arrived at its commercial rationale for a redundancy decision. Employers must ensure they have evidence available to support any commercial basis for a redundancy, and have provided this evidence to the employee for feedback prior to any final decision.
10 Review your employees' post-termination restraints. Restraints of trade are enforceable only if they go no further than necessary to protect the employer's legitimate proprietary interests in confidential information, client contacts or workforce stability. Restraints should be tailored to the employee and reviewed regularly to ensure the type of work, entity and area covered remains relevant. When widening the scope of a restraint during an employment relationship, employers should be aware of the need to provide additional consideration, so salary or benefit review time could be an appropriate occasion to revisit your restraint arrangements.
Christie Hall is the employment law leader at EY Law.
