Monday, September 8, 2014

10 Employment Practices to Avoid Employment Liability

The headline today refers to avoiding employment liability, which is not the same as avoiding employment litigation. Unfortunately for employers their employees are still suing them at record breaking rates. Candidates who don’t get the job, and employees who are disciplined or discharged often refuse to accept responsibility for those decisions. Some candidates cannot believe that they are not the most qualified. Many employees believe that discipline is unfair. Admittedly, sometimes their suspicions are correct but far more often they just look for a reason to blame the employer. Employers must act defensively. The best way to avoid problems down the road is for employers to periodically review their employment practices to ensure that even if a disgruntled employee (or candidate) makes a charge of unfair employment practices, they can prevail in the end. Here are the first three:

1.  Have an Updated Personnel Manual

With the proper disclaimers that an employee handbook is not an employment agreement, the manual is an invaluable tool in an employer’s arsenal. First and foremost most employers are required by law to not only have certain policies in place, but to notify their employees of those policies. Additionally, a policy handbook is a component of a successful defense for an employer in that the employer can show that it has promulgated lawful rules or procedures, it has notified the employee of such and it followed those rules and procedures.  This goes a long way to show that its actions, claimed to be wrongful by the employee, were, in fact, pursuant to its lawful procedures.

2.  Review and update your hiring and employment practices

Review and update your hiring practices. Revise applications to address changes in the law regarding use of criminal convictions and update EEO statements to include recently added protections, such as genetic information. Also, review interview procedures. Remember the do’s and don’ts of interviewing. While it is not unlawful to ask a candidate when they graduated from high school, it can give that candidate, if they are not fired, a toehold to a claim for age discrimination if they are over 40 years of age and the successful candidate is under 40 years old. Only ask questions that are pertinent to the job duties. If the candidate raises extraneous matters, especially those related to  characteristics protected by law, direct the interview back to discussions relevant to qualifications.

3.  Classify Employees Correctly

Wage claims, like other employment litigation, continue to rise. Periodically review employee classifications as job duties change over time and a position which was believed to be exempt may not remain so when a different employee fills that position or when the department undergoes reorganization. Additionally, despite the fact that the Fair Labor Standards Act has existed for more than 70 years, its interpretation of exempt and non-exempt is still changing to address the changing workplace. 

Tomorrow we will address the next three ways to avoid employment liability. The labor and employment attorneys at Ancel Glink are experienced in not only reviewing and revising your employment practices, but also in training your managers and supervisors in ways to avoid employment liability. Contact Margaret Kostopulos or any of the labor and employment attorneys at Ancel Glink for more information in how we can help you stay compliant with the law.