I suppose some people really enjoy going to the doctor. For most of us, however, being poked and prodded is not high on our to-do list. And yet we go anyway – sometimes even when we are not yet sick! Why? Because we realize there is value in preventive care and in diagnosing an infection before it gets worse.
Like heading to the doctor for an annual checkup, preventive care can be an important tool to maintain the health of your business. So, as you plan and prepare for 2017, here are a couple of areas to keep in mind to help reduce your employment headaches in the future.
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. For example, you know those 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’d 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. 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 trade secret and confidential information. Winning an action to enforce a confidentiality agreement suit or trade secret case 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 now on hold, be ready for it to come into effect. 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 whether and what exemption they fit into. Relying on outdated job descriptions is a common issue that I see when conducting wage and hour audits, so it would be a great time to update those as well.
With your non-exempt employees, review any opportunities for off-clock work. 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. As we discussed in a previous article, 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 can also be a liability for you if it is outdated or poorly drafted.
So, to start with, is your onboarding package consistent with your handbook? And when it comes to onboarding, check to make 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 comply with the laws in all the states in which you now operate? Does it 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?
Another section to consider is your dress code. If you require different clothing for men and women, you might want to take another look at the policy. Some areas, like New York City, prohibit gender-specific dress codes. Further, requiring only women to do their hair and wear makeup might trigger a sex stereotype claim or a gender discrimination suit.
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 provides that no one may discuss their wages or the terms of their employment, you need to take another look at that policy as well, especially if you are a federal contractor.
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 liability for your company.
Training Your Employees and Gathering Your Team
I have said it before and I will say it again: 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, this is also a good time to assess whether you have the resources you need should an issue arise. You probably would not care to perform open-heart surgery on yourself, and 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. And it is never a bad idea to 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.