It's Not Too Late to Make Your 2017 HR Resolutions
Miller & Martin PLLC Alerts | January 30, 2017
by Karen Smith
It's a new year. Now that the first month is nearly behind us, many of us have begun making progress on (or even broken) some of our personal resolutions meant to improve ourselves in 2017. But, have you taken the time to consider ways to improve your HR landscape in the upcoming year, or, as I like to say, ways to avoid getting sued? If not, here is my list of Top 10 HR resolutions for you to consider for 2017. It’s not too late!
10. Complete timely and accurate Performance Evaluations.
I get it. Most people don’t like conflict, and most supervisors would rather let okay employees slide through than bring issues to the forefront. But, not every employee is excellent or above average in every area, and it makes it very difficult to defend a decision to discipline or terminate someone who has been consistently rated as above average year after year and who has received the maximum salary increases because a supervisor doesn’t like confrontation. Performance reviews must be accurate and honest. They should be a written confirmation of issues that have been encountered and addressed throughout the year; there should be clear goals and expectations established for the future.
9. Don’t stick your head in the sand.
I can’t tell you how many times I’ve heard supervisors tell me about conflicts they have witnessed between employees, or inappropriate comments or jokes they have heard in the workplace. Invariably, when I ask them what they did in response, they tell me, “Nothing. They weren’t my employees.” Another thing I hear is that an employee has made a complaint to her supervisor but does not want him or her to do anything about it; she doesn’t want to get anyone in trouble. If you are a supervisor, everyone is your employee whether they report to you or not. Likewise, supervisors have a responsibility to act even if an employee has not complained or has asked that the supervisor do nothing. If you witness inappropriate conduct – particularly if it could amount to unlawful harassment – you have an obligation to investigate, and a failure to do so can mean liability. Besides, handling employee conflicts in a timely manner boosts morale, boosts trust, and boosts loyalty. It’s a win-win.
8. Engage in the Interactive Process.
It’s an easy step, and if your company is subject to state or federal disability laws, it’s required. If an employee asks you for a reasonable accommodation (or time off) due to a medical condition, simply ask the employee what she needs. Nothing more – don’t ask questions about her medical condition or if she’s sure she really needs what she’s requesting – just ask what she needs, and tell her you’ll get back to her. If it’s simple and easy to provide, provide the accommodation. Sometimes you have to go beyond this, but sometimes you don’t. Remember, it is very easy for an employee to establish a disability, but it is extremely difficult for an employer to establish undue burden.
7. Don’t run afoul of the National Labor Relations Act (NLRA).
You don’t have to have a union to be charged with an unfair labor practice. The NLRA applies to all employers. So, remember, you can’t tell your employees to not talk to each other about their pay, and you can’t ask them to keep other information relating to the terms or conditions of their employment confidential. Likewise, you may not be able to terminate them for things they say about you on social media.
6. Treat your temps as you do your own employees.
While your temporary employees may receive their paychecks from someone else, you likely control the hours they work, who they work for, and the environment in which they work. Guess what? Under most employment laws, you are probably considered their joint employer along with the temporary agency. So, don’t think you can summarily request that they not return to your worksite without potential ramifications.
5. Don’t misclassify your employees as Independent Contractors.
Many employers thought an easy solution to avoiding the increase in the new salary requirements the halted DOL final rule was going to impose was to convert affected employees to independent contractors. It’s not that easy, as the DOL and IRS have been cracking down on misclassification issues for years. Things that may mean your “independent contractor” is really an employee: the work he performs for you is integral to your business, he does not have a great potential for loss, he does not have a large investment in equipment or facilities, he does not exercise a great deal of independent business judgment, he’s there on a permanent or indefinite basis, he’s paid on an hourly basis, you provide paid vacation and/or sick leave, you reimburse business expenses, you require him to sign a non-compete agreement, and/or you control his hours.
4. Make sure you pay your non-exempt employees for all time worked, especially overtime.
While misclassification issues often get a lot of press, not getting paid for overtime remains the leading reason employees file wage and hour lawsuits and collective actions. In today’s electronic world, it’s very easy for employees to work remotely, either by connecting through their laptops or simply checking emails. If that employee is non-exempt, she needs to be recording her time. It also remains a very competitive world where companies still reward managers for things like low overtime costs. What does this do? It sends a message that the company doesn’t pay overtime, which encourages off-the-clock work, or worse, changing of time by unscrupulous managers.
3. Consistently apply Company Policy and Procedure.
You’ve heard this before. Consistency is the key to avoiding discrimination and retaliation lawsuits, and also helps boost morale in your workforce. Remember: perception is reality. How have you treated others who have committed the same infraction or who have requested the same accommodation or leave? But this resolution goes beyond even that; it assumes you have a company policy or procedure in place. So, don’t forget to review your handbook, your job descriptions, and any other HR policies or procedures you have in pace, including your payroll practices, especially if you haven’t done so in a few years.
2. Train your managers.
Resolutions 3 through 10 don’t mean anything if you don’t train your managers on how to conduct effective performance evaluations, react to volatile employment situations, handle accommodation requests, and the like, not to mention the value of having managers trained on effective leadership and communication techniques. Your ability to comply with the various HR and wage and hour laws is only as good as the ability of your managers to understand and do their part. While they do not need to know all of the nuances of every law, they need to understand when they have to be proactive and when they should contact HR, particularly when making statements or decisions that could legally bind your company.
1. Document, Document, Document.
This was probably not a surprise, as it should probably be number one every year. You are simply not going to remember vital details about incidents, conversations or investigations that happened days, weeks, months or even years ago unless you have good documentation. Document facts – who, what, when, where and how did you respond? Give the employee a chance to respond, and document the response. Good documentation cannot only save you if you find yourself in a sticky situation, it can also sometimes keep you from getting there in the first place.
While there’s no magic wand that can be waived or any super, secret shield that can be donned to keep employers from getting sued, keeping one or more of the above resolutions can go a long way.
We can help.
Contact Karen Smith or any other member of our Labor & Employment Law Practice Group to discuss preventative measures your company can resolve to follow this year to limit your employment litigation risks.