by Stacia Abner, author of Employment Law Training
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 legal guidelines, nondiscrimination laws, etc.). Many organisations, especially smaller organizations, tend not to know the scope of such obligations and, therefore, frequently (albeit inadvertently) violate what the law states. These violations can result in costly lawsuits, and also civil and criminal penalties. In my experience of being a defense attorney in addition to being a plaintiff’s lawyer, the commonest employment law mistakes done by corporations are these (in no particular order):
– Misclassifying workers as independent contractors. Normally, only workers who operate their unique separate corporations are “independent contractors.” Few workers meet this test; actually, most personnel are considered “employees” for the law, meaning they’re eligible to the total array of workplace protections.
– Misclassifying non-exempt employees as exempt. Generally, all personnel 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 workers) only apply in limited circumstances, however; consequently, many staff members that are claimed by businesses to become “exempt” in reality have entitlement to minimum wage and/or overtime pay.
– Not complying with state wage payment law regulations. i.e. New York imposes several specific rules regarding how businesses be forced to pay their personnel. These rules include providing new employees with written notice of these rate of pay and regular pay date; prohibiting deductions from wages unless for that 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 make an application for unemployment benefits.
– Not using a personnel handbook. A laborer handbook is a crucial tool for effective employer-employee relations. It notifies staff members of the company’s values, policies, and procedures; promotes compliance with labor and employment laws and regulations; so it helps create an orderly, efficient, and transparent workplace.
– Not documenting employee job performance. A well-managed business 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 not enough 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) legal guidelines prohibit businesses from taking adverse actions against personnel (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 call the commonest “protected characteristics”), plus 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 legislation.
– Not providing reasonable accommodations for disabled staff members. Most EEO laws and regulations prohibit businesses from taking adverse actions against personnel depending on certain protected characteristics, but disability discrimination law regulations also impose an affirmative obligation on businesses to “reasonably accommodate” disabled staff members in an attempt to make them perform the primary functions of the jobs. Such accommodations can include restructuring job duties, modifying work schedules, or providing assistive devices. Businesses must give a disabled worker with needed accommodations unless doing this would cause an “undue hardship” for the company (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 corporation. The easiest way to get a release is in exchange for an offer of severance (where appropriate). Normally, companies are not essential to pay for severance to employees (unless essential to an employment contract or possibly a collective bargaining agreement). If they plan to do this (e.g., in association with layoffs), they need to require workers to sign a release in substitution for the payment.
– Not protecting confidential enterprise information. Every business is dependent upon certain vital, often confidential, information regarding its enterprise operations, including trade secrets, marketing and advertising practices, and customer and client lists. Access to this information needs to be restricted to staff members with a “need to know” and really should 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 significant point to take away from this discussion is the fact that businesses have to consult an experienced employment lawyer to ensure they are in compliance with all the increasingly numerous and complex legal guidelines that carpet businesses just like a minefield. Large corporations most often have attorneys and recruiting professionals working to help them in this field. Small- and medium-size companies often don’t. Their biggest mistake is attempting to navigate this minefield independently.
And also you? Exactly what are your top mistakes made in employment law?
About the Author: Stacia Abner writes for employment law training courses , her personal blog where she writes about her experience as defense attorney to assist workers and corporations cope with the facets of employment law.