by Stacia W. Abner
The contemporary American workplace is susceptible to numerous federal, state, and local law regulations that impose strict obligations on businesses (e.g., wage and hour legal guidelines, nondiscrimination legal guidelines, etc.). A lot of companies, especially smaller companies, don’t know the scope of those obligations and, because of this, frequently (albeit inadvertently) violate what the law states. These violations can result in costly lawsuits in addition to civil and criminal penalties. In my experience being a defense attorney and a plaintiff’s lawyer, the most typical employment law mistakes made by corporations are (in no particular order):
– Misclassifying workers as independent contractors. Generally speaking, only workers who operate their very own separate companies are “independent contractors.” Few workers meet this test; actually, most personnel are considered “employees” for the law, meaning these are eligible for the entire array of workplace protections.
– Misclassifying non-exempt personnel as exempt. Normally, all personnel are eligible to minimum wage and overtime pay, unless these are “exempt” under state and federal law. The exemption rules (e.g., for executive, administrative, and professional workers) only apply in limited circumstances, however; consequently, many workers who’re claimed by businesses to become “exempt” in reality have entitlement to minimum wage and/or overtime pay.
– Not complying with state wage payment laws. i.e. New York imposes several specific rules regarding how businesses be forced to pay their staff members. These rules include providing new staff members with written notice of these rate of pay and regular pay date; prohibiting deductions from wages unless to the employee’s benefit and authorized in writing; requiring written contracts for commissioned salespersons; and providing terminated staff members with written notice of the last day’s work, their last day’s benefits, and their right to submit an application for unemployment benefits.
– Not using a personnel handbook. A worker handbook is a tool for effective employer-employee relations. It notifies workers of the company’s values, policies, and procedures; promotes compliance with labor and employment legislation; so it helps create an orderly, efficient, and transparent workplace.
– Not documenting personnel job performance. A well-managed company clearly communicates its employees’ duties and responsibilities (e.g., through written position descriptions), trains and supervises employees to be sure they are meeting these requirements, and offers regular, objective, consistent feedback (e.g., through written evaluations and, where necessary, disciplinary actions). A not enough accurate, complete, contemporaneous documentation can result in liability in the case of a case by a staff member.
– Not training supervisors regarding EEO legal guidelines. Federal, state, and local equal employment opportunity (EEO) laws and regulations prohibit businesses from taking adverse actions against staff members (e.g., demotion, termination) for reasons not associated with an employee’s job performance, including those depending on an employee’s race, color, sex, age, disability, religion, national origin, sexual orientation, and marital status ( to mention the most typical “protected characteristics”), along with retaliation for an employee’s good faith complaints of discrimination. It is imperative that supervisors learn the way to manage staff members without violating (or appearing to violate) these laws.
– Not providing reasonable accommodations for disabled workers. Most EEO legal guidelines prohibit businesses from taking adverse actions against personnel depending on certain protected characteristics, but disability discrimination laws and regulations also impose an affirmative obligation on businesses to “reasonably accommodate” disabled staff members in order to make them perform the fundamental functions of the jobs. Such accommodations might include restructuring job duties, modifying work schedules, or providing assistive devices. Businesses must supply a disabled employee with needed accommodations unless doing this would cause an “undue hardship” for the organization (e.g., too costly, too disruptive).
– Not obtaining releases from terminated workers. When terminating a worker, businesses need to get a release that waives the employee’s potential legal claims against the business. The simplest way to get a release is in exchange for an offer of severance (where appropriate). Generally speaking, organizations are not essential to pay for severance to staff members (unless essential to an employment contract or perhaps a collective bargaining agreement). If they plan to achieve this (e.g., associated with layoffs), they must require staff members to sign a release in return for the payment.
– Not protecting confidential business information. Every company depends upon certain vital, often confidential, information regarding its company operations, including trade secrets, marketing and advertising practices, and customer and client lists. Access to this information must be restricted to personnel with a “need to know” and will be protected by appropriate non-disclosure, non-compete, and/or non-solicitation agreements (depending on the nature of the information as well as the employee’s position).
– Not consulting an experienced employment law attorney. Perhaps the one most critical point to take away from this discussion is always that businesses must consult a professional employment lawyer to ensure they are in compliance with all the increasingly numerous and complex law regulations that carpet work just like a minefield. Large corporations normally have attorneys and hr professionals within the company to aid them in this field. Small- and medium-size businesses often usually do not. Their biggest mistake is wanting to navigate this minefield automatically.
If you have any questions or need additional help feel free to contact Stacia W. Abner or visit her Employment Training Blog: http://www.employmentlawtraining.org/ where she writes about her experience as defense attorney to aid workers and businesses handle the facets of employment law.
DISCLAIMER: This information is not intended to provide specific legal advice to address every situation that might occur. Please consult with your legal or tax advisor to supplement and verify what you learn here.