Employee handbooks are not legally mandated. However, a good employee handbook sets the tone for a workplace. It should set forth company policies and other information that employees need to know including the consequences for violations of the handbook provisions.
While it may not be “unlawful” for a company to not adhere to its rules and policies, the issue arises often in employment-related legal disputes. Typically, the allegations will involve claims of discrimination or retaliation based on the different application of a policy or rule to particular employees. To avoid such allegations, employers should set out clear policies and adhere to them consistently with everyone.
Employers will regret not documenting conduct and/or performance issues with employees when a legal issue arises. Whether the company faces an unemployment claim, EEOC Charge, lawsuit, or any other legal challenge, it is difficult to defend against a n accusation when there is no evidence of the employee’s bad behavior or poor work performance.
In addition, employment claims that escalate to an administrative agency or court can take years to resolve. In the interim, key witnesses can disappear. If that happens, documentation may be the main (or only) evidence upon which a company has to rely to defend against liability.
Federal law places specific requirements on the way employers classify employees for purposes of pay. Only certain types of jobs are “exempt” from overtime, based on criteria set out under federal law. For this reason, an employer cannot avoid paying overtime or make an employee work unlimited hours a week for a set amount of money simply by labeling a position as “salaried.” Instead, the job duties must be analyzed to see whether the position falls within an exemption category.
Likewise, an employer cannot label someone as an “independent contractor” who receives an IRS Form 1099 (versus a W-2 employee). There are specific legal criteria to meet before making that designation.
An employer must pay overtime to non-exempt employees (hourly or salaried) for any hours exceeding 40 that were worked in a particular workweek.
TIP – Do NOT confuse this requirement by thinking that overtime is only paid if an employee works more than 80 hours in a 2 week pay period! You must look at the hours for each workweek.
Similarly, an employer cannot avoid paying overtime by asking employees to work “off the clock” or shifting already worked hours into a different workweek.
Additionally, it is very important for employers to keep track of the work hours for all non-exempt employees (including salaried). If a pay claim arises and there are no records, it will be extremely difficult to defeat the allegations. In fact, the company could face liability for the unpaid overtime, liquidated damages, as well as the employee’s attorneys’ fees (i.e., in addition to paying attorneys to defend the company!)
It is important to look into employee complaints to determine whether they are legitimate. While many issues may not implicate legal exposure, you never know.
Employment discrimination claims involve accusations that an employer unlawfully subjected an employee to adverse treatment based on one or more of their legally protected characteristics (race, age, gender, disability, pregnancy, national origin, religion, sexual orientation, etc.). Typically, these types of claims allege that the employer treated another employee more favorably under similar circumstances.
It is important for companies to take a proactive approach to safety issues. A company must maintain vehicles and equipment. Likewise, if there are any chemicals or other potential hazards in the workplace or used at job locations, make sure items are properly secured and stored. It is also critical to have necessary personal protective equipment (“PPE”) and safety equipment for all employees who need it. Additionally, make sure that employees hold valid licenses, if required. Not addressing safety matters exposes your company to workers compensation claims, OSHA investigations, and third-party liability.
Multiple laws can be implicated when an employee identifies a health issue:
Additionally, the ADA requires employers to make “reasonable accommodations” for individuals with disabilities, which may include medical leave.
This law It also provides rules dictating when an employer can request medical information or require an employee to undergo a medical exam or inquiry.
Certainly, a HR department should be able to adequately handle certain “routine” matters (separation paperwork, investigating complaints, responding to unemployment claims where an employee quit, etc.). However, it is not advisable to have HR address any contested legal issues with a current or former employee.
Not many people “want” to call a lawyer. But spending a little up front to get some advice could save you from a legal claim that could lead your business into financial jeopardy. It is essential to have someone to call when you are not sure how to handle a situation – whether it’s a contract issue, drafting company policies, what documents are needed when hiring employees, how to pay certain employees, or uncertainty about handling employee complaints, discipline and termination.
More importantly, if you receive a demand letter, lawsuit, EEOC charge or other notice of a claim, you should immediately have a lawyer evaluate the situation to assess the potential exposure and to avoid missing any deadlines. Likewise, unemployment claims should not be ignored, as successful claims will increase your business expenses and can be used against the company in other legal proceedings.
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