Like heading to the doctor for an annual checkup, preventive care can be an important tool to maintain the health of your business. The following are a couple of areas to keep in mind to help reduce your employment headaches in the future, or better yet, prevent them in the first place.
Audit and Update Your Current Policies and Procedures
You can’t fix a problem when you don’t know it exists. So, the first step in your annual checkup is to take some time to examine how your business is running right now, from top to bottom.
Let’s start with something simple like the posters hanging in your break room. What year are they from? Do they reflect the current state minimum wage and, for example, the domestic violence law that your state just passed? Federal and state laws require employers of a certain size to post various notices concerning workers’ rights, and the failure to do so can result in fines and even liability in a lawsuit. It’s an easy fix, and well worth the time it takes to double-check them.
You should also think about the areas in which you most frequently get employee complaints. If your ankle hurt every time you put weight on it, you would assume there was a problem. Similarly, if your employees repeatedly tell you that they don’t understand how they are evaluated for potential promotion, you may want to take a look at that process. In this case, making the advancement process more transparent could go a long way toward preventing a discrimination suit by someone who, for example, truly believes she was not promoted because of her gender.
What about your record keeping? Are you confident you are maintaining personnel records for the legally required amount of time? Do you keep applications after a position has been filled? You should also think about the level and type of protection in place for your confidential information. Winning an action to enforce a confidentiality agreement suit is much more likely when you can show how carefully you guard this information.
I also strongly recommend that you ensure your exempt employees are classified properly. Though this pending law is now on hold, you should be ready for it to come into effect in the future. For each employee who is not paid overtime, and especially those who are at the lower levels of your “exempt” category, you should assess his or her daily duties and evaluate what exemption, if any, they fit into. Relying on outdated job descriptions is another common issue that I see when conducting wage and hour audits, so now would be a great time to update those documents, as well.
Regarding your non-exempt employees, review any opportunities for off-clock work with them. Are your non-exempt employees able to access work email accounts on personal devices? Do they do it before or after normal business hours? Do they know that this is “time worked” that you are legally required to pay? Do you have a system in place to make sure that your non-exempt employees are accurately tracking and recording all time worked, even if that work occurs outside of the office? Proactively addressing these matters can help insulate your company from litigation, especially from costly class or collective actions.
Update Handbooks and Employment Policies
Another important part of your company’s yearly checkup is to take a good look at your employee handbook and other employment policies. A well-drafted handbook records the company’s rules and communicates them to your employees in an easy, understandable way.
If a handbook is well drafted, it provides helpful information on what’s expected from employees and what they can expect from their employer. It can also provide the foundation for any employment decisions you need to make and — if the situation arises — form the backbone for the defense of many lawsuits brought against you by employees. That said, your handbook could also be a liability for you if it is outdated or poorly drafted.
So, to start, is your onboarding package consistent with your handbook? And when it comes to onboarding, are you making sure you’re using the most updated federal forms and your background-check procedures are consistent with the Fair Credit Reporting Act and any applicable state laws?
Another common problem arises when your business has grown in leaps and bounds over the last couple of years. It’s a wonderful problem to have, but does your handbook take into account that you’re now covered by the Americans with Disabilities Act because you have 15 or more employees, or the Family and Medical Leave Act because you have 50 or more employees?
What about the digital challenges facing your workplace? Does your handbook address whether “texting in” sick is acceptable or that online harassment of coworkers could lead to disciplinary action at work?
It is worth the time to have a professional check out your handbook to ensure that it is not making a rule that’s actually illegal on its face. For example, if your handbook currently provides that overtime will not be paid unless it’s approved in advance, then revise your policy — immediately. If your handbook states that no one may discuss their wages or the terms of their employment, that’s another reason to take a look at that policy.
Finally, do the best you can to ensure that your policies comply with the latest positions of the National Labor Relations Board. The Board has invalidated many policies that most employers considered routine, such as policies requiring “courtesy,” “respect” or “civility” at work, or broad provisions requiring “confidentiality.”
It is important to note that the Board’s position applies to non-union as well as union employers. It is best to consult with a labor-relations attorney who can advise you on the NLRB’s positions and how to draft effective policies that will not result in any liability issues for your company.
Training Your Employees and Gathering Your Team
The best policy in the world will not keep you out of trouble if your employees don’t know about it or don’t follow it. Without proper training, your managers may not know the warning signs of a potential claim — and you may not find out about it until it is too late. Even more problematic is the fact that you may be held strictly liable for the unlawful actions of your management employees. Simply put, train early and train often.
Finally, assess whether you have the resources you need should an issue arise. You probably would not care to perform a medical procedure on yourself, so you don’t need to run your business alone, either. It is never a bad idea to have a local labor and employment lawyer you trust around to help you navigate tricky investigations or terminations. You should also be familiar with your insurance policy and coverage before an issue arises.
Undergoing an annual checkup for your business may be uncomfortable or even a bit scary. However, just like visiting your doctor, it is also one of the best ways to stop a problem before it gets serious.