by Renee Mielnicki, Esq.
Most of you may think that employees continue to get more and more legal rights in the workplace these days. In reality, most of the rights that we counsel our clients about have been around for years. It may be that employees are becoming more educated about and therefore exercising these rights more frequently. This makes it necessary for employers to learn as much as they can about compliance with all applicable laws in order to avoid unnecessary lawsuits.
Whether you belong to an organized religion or not, you have probably heard of the notion of the “seven deadly sins.” It’s been said throughout time that, as humans, engaging in these forbidden seven can lead to severe consequences. Interestingly, this longstanding notion has application to us as employers today. Our non-compliance with applicable employment laws makes it easier for employees to bring unnecessary lawsuits against us. Below are what I rank as the seven most deadly sins an employer can commit that can lead to liability:
Sin # Not having an employee handbook – Because an employee handbook outlines the policies and guidelines of the company, it allows employees to know what is expected of them and what they can expect in return. By communicating the policies of the organization, your employee handbook reduces liabilities that may come through misunderstandings of mutual expectations.
Additionally, employers that can prove that an employee received a handbook may have an advantage in legal disputes. Several federal and state laws require employers to notify employees of certain rights and/or employer responsibilities. Your employee handbook is the perfect vehicle for delivering those notices and establishing your good faith efforts to inform your employees of their rights.
Sin # Inconsistent enforcement of policies – Whether written or unwritten, nearly all employers have workplace rules pertaining to conduct issues such as attendance, dress codes and many more. The best practice is, of course, to have written policies. While most companies have something written regarding such issues, the policies are often vague or convoluted thereby leaving room for misinterpretation. A well-written policy will help you avoid confusion and ensure more consistency in application.
Written policies also clearly communicate to your employees what is expected of them and remind management of the rules they are responsible for enforcing. Most importantly, management must be trained to understand that failure to enforce workplace rules against one employee, but choosing to enforce it against another, can lead to claims of unequal treatment or discrimination.
Sin # Not having an anti-harassment policy or neglecting to investigate claims of harassment – Employers have a duty to provide a harassment free workplace. Having an anti-harassment policy is the first line of defense for employers who have been charged with harassment. Beyond having the policy, it must also be clearly communicated to employees through training. In the event that a complaint is made, an investigation is critical to your defense since employers who are aware of harassment must immediately takes effective steps to stop any future harassment from occurring. Employers who can demonstrate these attempts at prevention and remediation are less likely to be found liable.
Sin #: Failure to recognize a request for a reasonable accommodation – Under the Americans with Disabilities Act, employers must reasonably accommodate employees who are disabled as defined by the Act. This can include providing exceptions to workplace rules or even providing a leave of absence. In addition to general unfamiliarity with the Act, many employers do not know how to recognize when a request is made. Employees may be unfamiliar with their rights under the Act but use certain words that trigger a request that the employer must then respond to. There are no magic words that an employee must use to make a request. For instance, if an employee states that s/he cannot arrive at work at a scheduled shift due to a medical condition, the employer should consider this a request for a reasonable accommodation and begin the process of responding. Failure to recognize that a request was made can result in a claim under the Act.
Sin #: Ignoring performance management – If you haven’t had a conversation about poor performance lately, you need to sit down and think this through… it’s one of the hardest conversations you can have. The main reason to ensure good performance management is to tighten the link between the business objectives and day-to-day actions. Goal setting contributes to success and bottom line results. Regularly tracking progress against performance goals and objectives also provides the opportunity to recognize and reward employees for performance and effort, contributing to job satisfaction and productivity. Employees want to feel successful, to do well at their job and feel they are making a valuable contribution. In order to ensure this happens, employees need a clear understanding of individual goals and how they fit into the larger organization.
Failure to manage an employee who is not performing well creates a legal issue when an employer decides to terminate the employee. The employee may speculate that the employer’s reasons for termination were illegal and file a lawsuit alleging discrimination or retaliation. Without proper documentation in the employee’s file evidencing poor performance, the employer is left defenseless.
Sin #: Not following your disciplinary policy – Employers should always have a discipline policy that is clearly communicated to employees. Any time a workplace infraction is committed, the policy should be consistently enforced to avoid claims of discrimination. Moreover, warning the employee gives him/her an opportunity to correct the behavior. Employees who know that disciplinary issues will be addressed consistently are more likely to trust the company and be more engaged. If a termination is necessary, well-documented application of your disciplinary policy will be your best defense against a wrongful termination charge.
Sin #: Failure to properly classify employees as exempt or non-exempt – Most employers do not know that this determination is based upon the tasks and functions of each position as defined by law, rather than the opinion of the employer. Unless an employee fits into one of the legally defined exempt categories, the employee is non-exempt by law and must be paid time and a half for overtime worked. Employers who incorrectly classify a non-exempt employee as exempt risk repayment of overtime wages due in the event of a Department of Labor audit.
So what is your salvation in light of these deadly sins? In other words, how can you deliver yourself from the consequences of these evils? Well, unfortunately, as with any other misdeed, if you get caught, you may not be able to escape the penalties. Therefore, the best practice is resist the temptation to engage in the sin in the first place. My advice beyond that? Managing your employees in a way that complies with all applicable laws is a much more cost effective way of doing business.
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