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: The Pullins Report

Guest Column: Top 10 Employment Law Mistakes Made by Businesses

By The Pullins Group LLC

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The contemporary American workplace is susceptible to numerous federal, state, and local laws and regulations that impose strict obligations on businesses (e.g., wage and hour legislation, nondiscrimination laws and regulations, etc.). Most companies, especially smaller corporations, don't know the scope of those obligations and, therefore, frequently (albeit inadvertently) violate legislation. These violations can cause costly lawsuits, in addition to civil and criminal penalties. In my experience as being a defense attorney in addition to being a plaintiff's lawyer, the commonest employment law mistakes done by companies are the next (in no particular order):

- Misclassifying staff members as independent contractors. Normally, 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, which suggests these are eligible to the entire variety of workplace protections.

- Misclassifying non-exempt personnel as exempt. Generally, all workers are eligible to minimum wage and overtime pay, unless they're "exempt" under state and federal law. The exemption rules (e.g., for executive, administrative, and professional staff members) only apply in limited circumstances, however; therefore, many staff members that are claimed by businesses to become "exempt" actually have entitlement to minimum wage and/or overtime pay.

- Not complying with state wage payment legal guidelines. i.e. New York imposes several specific rules regarding how businesses be forced to pay their personnel. 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 personnel with written notice of the last day's work, their last day's benefits, and their right to make an application for unemployment benefits.

- Not owning a laborer handbook. A personnel 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 laws; so helps create an orderly, efficient, and transparent workplace.

- Not documenting employee job performance. A well-managed organization clearly communicates its employees' duties and responsibilities (e.g., through written position descriptions), trains and supervises staff members 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 deficiency of accurate, complete, contemporaneous documentation can result in liability in the eventuality of a case by a worker.

- Not training supervisors regarding EEO law regulations. Federal, state, and local equal employment opportunity (EEO) law regulations prohibit businesses from taking adverse actions against personnel (e.g., demotion, termination) for reasons not linked to 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 personnel without violating (or appearing to violate) these laws.

- Not providing reasonable accommodations for disabled employees. Most EEO laws and regulations prohibit businesses from taking adverse actions against workers according to certain protected characteristics, but disability discrimination legal guidelines also impose an affirmative obligation on businesses to "reasonably accommodate" disabled staff members in order to make them perform the main functions of these jobs. Such accommodations can include restructuring job duties, modifying work schedules, or providing assistive devices. Businesses have to supply a disabled employee with needed accommodations unless this would cause an "undue hardship" for the corporation (e.g., very 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 corporation. The easiest way to get a release is in exchange for an offer of severance (where appropriate). Generally speaking, businesses are not essential to pay for severance to staff members (unless necessary for an employment contract or even a collective bargaining agreement). If they opt to do this (e.g., in association with layoffs), they must require employees to sign a release in return for the payment.

- Not protecting confidential company information. Every organization is dependent upon certain vital, often confidential, details about its organization operations, including trade secrets, marketing and advertising practices, and customer and client lists. Access to this information ought to be limited by personnel with a "need to know" and may be protected by appropriate non-disclosure, non-compete, and/or non-solicitation agreements (depending on the nature of the information and also the employee's position).

- Not consulting an experienced employment law attorney. Perhaps the one most critical point to take away from this discussion is the fact that businesses should consult a certified employment lawyer to ensure they are in compliance with all the increasingly numerous and complex laws that carpet work just like a minefield. Large companies will often have attorneys and recruiting professionals working to help them in this field. Small- and medium-size organizations often usually do not. Their biggest mistake is attempting to navigate this minefield independently.

So you? Precisely what are your top mistakes made in employment law?

About the Author: S. W. Abner writes for employment law training courses , her personal blog where she writes about her experience as defense attorney to aid workers and corporations take care of the areas of employment law.

Full post as published by The Pullins Report on March 08, 2011 (boomark / email).