Labor & Employment Law Articles
Top Ten Mistakes Made By Employers
- Failure to establish a sexual harassment policy and a procedure for investigating complaints. In light of the most recent Supreme Court decisions holding companies liable for the actions of their supervisors unless they have adopted complaint procedures which the complaining employee has failed to take advantage of, there can no longer be any acceptable excuse for a company failing to have a policy and procedure in place. It is also essential that supervisors be given training on the company’s policies and procedures.
- Failure to notify employees of their rights under the Family and Medical Leave Act. Every covered employer must post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions. If an employer provides an employee handbook to all employees that describes the employer’s policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer’s policies regarding FMLA. If an employee provides notice of their need for FMLA leave, the employer should advise the employee as to whether the employee is “eligible” as soon as practicable.
- Failure to completely fill out I-9 forms for new employees. We have found that many employers merely photocopy the documents provided by new employees and fail to fill out those parts of the forms that describe the documents. This can be a costly mistake if there is an audit. It is not necessary to make copies of the documents produced by the employees; however, it is necessary that the forms be filled out completely even if you made photocopies of the documents.
- Failure to pay overtime for employees who work over forty hours in a week. Many employers pay their employees on a salaried basis regardless of the number of hours they work. However, unless these employees are exempt as administrative, executive or professional employees, the employer is required to pay time and a half their regular hourly rate for all hours worked in excess of forty in a week. If there is doubt as to whether an employee is exempt, you are better off paying that employee on an hourly basis to avoid exposure in case there is an audit by the Wage and Hour Division of the Department of Labor.
- Failure to document disciplinary incidents. Supervisors hate to write up their employees since they do not want to be perceived as “bad guys”. However, when they can no longer tolerate their poor performance, there is often nothing in the file to justify a termination.
- Failure to give accurate evaluations. This is a corollary of No. 5 above. Frequently, we find that employees who have been terminated for poor performance, have glowing evaluations in their files.
- Condonation of improper behavior and poor performance. On the one hand, we always recommend that employers provide progressive discipline of their employees and that there be one warning too many rather than one too few. On the other hand, there comes a point where failure to act is as bad as overreacting. If you have kept an employee for numerous years who has poor attendance, numerous infractions and several “final” warnings in his file, you are asking for trouble. This is the employee who is most likely to sue you when you finally get rid of him/her. It is best to discharge a poor performer as soon as it is prudently feasible. The more senior an employee is, the greater the burden is to establish justification for the termination.
- Conditioning employment on medical examination before employment is offered. According to the Americans with Disabilities Act, applicants for employment cannot be asked about their disabilities or be asked to take a medical examination during the application process. Once an applicant is offered a position, the applicant can be asked to take a medical examination which is relevant to the demands of the job. The burden is on the employer to establish the relevancy of the medical examination to the requirements of the job.
- Failure to provide union contract benefits to employees who have failed to join the union. Employers frequently fail to understand that a union contract applies to all the employees in the bargaining unit [all the employees who perform the work covered by the contract] even if some of those employees have failed to join the union. Unions are sometimes dilatory in signing up new employees. Nevertheless, the contract applies to non-members if they are part of the bargaining unit.
- Failure to retain labor and employment counsel to advise about not making the first nine mistakes. The laws have gotten too numerous and complex for most companies to keep on top of themselves. We can help