What's on Your 2019 HR To-Do List? (Part 2)

Miller & Martin PLLC Alerts | January 14, 2019

In Friday’s Alert "What's on Your 2019 HR To-Do List?", we began looking at some potential priorities for your 2019 HR to-do list. Here are the final items on our list.

9. Review your substance abuse and drug testing policies.

Whether the opioid addiction threat has hit your community, or whether you have employees in states that have legalized marijuana use in some form or fashion, drug testing and substance abuse in the workplace continue to be hot and evolving issues. The keys to addressing these issues are knowing what laws impact your workforce in these areas and making sure your substance abuse and drug testing policies comply with them as well as reflecting your company culture to the extent this still is possible under these applicable laws.

If your community has been impacted by the opioid epidemic, also consider making your EAP more visible as a proactive resource for employees and their families by hosting quarterly meetings about it or featuring it in company newsletters rather than merely hoping employees will consider using it based on a lone faded bulletin board posting.

8. Engage in the interactive process when necessary.

If your company is subject to certain state or federal disability laws, this is required. If an employee asks for some form of workplace assistance (including time off, which can be a form of reasonable accommodation) due to a medical condition, start by simply asking the employee what she needs. If it’s simple, inexpensive, and easy to provide, it may be that you can agree to the request without obtaining further information at that point. Often you will need to go beyond this, as employees are not necessarily entitled to the specific type of assistance they ask for, but sometimes you don’t.

The same approach should be used when employees request assistance or exception from a workplace policy due to a religious practice or belief.

Also consider, do your employees know how to request workplace assistance? Do your supervisors know what to do if they receive such requests? (Another spoiler alert – include this in item 2 below!)

Be sure to document your process and why you made the decision you did regarding each such request.

7. Review pay practices and pay equity.

When was the last time you assessed how employee pay for women and minorities compares to that of men and non-minorities? Are you still asking prospective employees about their salary history? Or otherwise setting pay for new employees based on what they made at their last place of employment? New laws in many states prohibit employers from asking about salary history, and courts in other jurisdictions are interpreting anti-discrimination laws that are already on the books as doing the same, based on the premise that women and minorities traditionally are underpaid for performing the same work. So, by paying new hires at their prior level of pay, employers are perpetuating inequality. Whether you agree with this premise or not, you need to have a legitimate reason to ask for pay history if, in fact, you do, and you need to be prepared to explain any pay inequalities in your workforce. To do this, you will need to know if and where they exist and why.

It is also a good idea to conduct this assessment with the direction and advice of counsel in order to be able to potentially have the results protected by the attorney-client privilege in the event you are involved in litigation relating to them at some point.

6. Have a strategy to deal with workplace violence and active shooter situations.

With the ongoing threat of mass shootings in our schools, places of worship, and places of entertainment, the workplace cannot be overlooked. Employers have an obligation to provide a safe work environment. Preparing for workplace violence and active shooter situations is part of this obligation. Background checks are still a useful tool (although be aware of states that have “ban the box” laws preventing employers from asking applicants certain questions regarding their criminal history), but zero tolerance policies, weapons policies, and professional active-shooter training also should be considered.

5. Make sure you are complying with immigration laws.

Last December, Tom Homan, Deputy Director of Immigration and Customs Enforcement (“ICE”) called for a 400% increase in worksite enforcement efforts. By August of 2018, worksite enforcement investigations already had increased by 350% compared to fiscal year 2017. Although no business is immune from worksite enforcement investigations, the following industries tend to be targeted by ICE: franchisees, manufacturing, construction, hospitality, and retail. To prevent liability in the case of an ICE audit or raid, companies should (1) train HR managers and other individuals responsible for completing the Form I-9 and E-Verify, (2) periodically audit their Form I-9’s, and, (3) if audited, have an attorney review the company’s Form I-9’s before turning them over to ICE. Don’t forget, any corrections to Section 1 of the Form I-9 should be made by the employee, and any corrections to Section 2 should be made by the employer. Use a different colored ink to cross out the error, make the correction, and initial and date the correction. For substantive errors, such as not completing the form timely, attach a memorandum to the Form I-9 explaining the error.

4. Apply company policies and procedures consistently.

You’ve heard this before. Consistency is the key to avoiding discrimination and retaliation lawsuits. It 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? Item 3 below goes beyond this; it assumes you have a company policy or procedure in place. So, (reflecting WAY back to Item 15 from Friday!) don’t forget to review your handbook, your job descriptions, and any other personnel policies or procedures you have in place, along with your payroll practices, especially if you haven’t done so in a few years.

3. (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 something along the lines of, “Nothing. They weren’t my employees.” Another thing I hear way more than I should 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. So, the supervisor “obliges” and does nothing. Ugh!

So, jumping ahead again to item 2 below, you MUST train ALL your managers to KNOW (1) IF YOU ARE A SUPERVISOR, EVERYONE IS YOUR RESPONSIBILITY WHEN IT COMES TO ISSUES LIKE WORKPLACE SAFETY, BULLYING, DISCRIMINATION OR HARASSMENT. (2) ACCORDINGLY, YOU HAVE A RESPONSIBILITY TO RESPOND TO ISSUES THAT ARE BROUGHT TO YOUR ATTENTION IN ANY OF THESE AREAS, REGARDLESS OF WHETHER OR NOT THE EMPLOYEE “AUTHORIZES” YOU DO TO SO.

In today’s work environment, it is more important than ever to create the right culture within your organization. Nothing has brought this recently to the forefront like the “me-too” movement. Thus, if you “see something, say something” – particularly if it could amount to unlawful harassment. Your company has an obligation to investigate, and a failure to do so can mean in some cases automatic legal liability. Handling employee conflicts in a timely manner also boosts general employee morale, trust, and loyalty and shows you are truly committed to what your policies say on paper. It’s a win-win.

2. TRAIN YOUR MANAGERS.

Finally, the item you have all been waiting for!

Most of the prior items won’t have any effect if you don’t TRAIN YOUR MANAGERS on how to conduct effective performance reviews, react to volatile employment situations, handle accommodation requests, and the like, not to mention the value of having managers trained on “soft skills” such as effective leadership, communication and employee engagement techniques. Your ability to comply with the various employment, leave and wage and hour laws is only as good as the ability of your managers to both understand and do their part. While they do not need to understand the nuances of every law, they should know enough to realize when they must be proactive (see item 3!) and when they should contact HR, particularly when making statements or decisions that could bind your company legally.

1. Document, Document, Document.

This is probably not a surprise, as it should probably be number one on your list every year. You (and your supervisors/managers) 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 – and train your supervisors and managers as to how to create it. 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. Consider creating or updating disciplinary action, evaluation, incident reporting, etc. forms for your supervisors and managers (and again TRAINING them as to how to effectively use them!) in order to further support and stream-line their documentation processes.

While there’s no magic wand that can be waved or any super, secret shield that can be donned to keep employers from being sued, accomplishing one or more of the above items can be a great start in the right direction. And while a list of “15 things” may seem daunting as you begin this New Year, consider using this list to set your own list of quarterly priorities for the next few years. For example, you may decide items 2 and 3 will be your priority for Q1, then item 5 for Q2, then item 15 for Q3, etc. Then compile a similar list for next year, etc.

As the Clemson Tigers proved exactly one week ago today, “you can eat even the most intimidating elephant if you do so one bite at a time.”

As always, should you have questions or we can be of assistance regarding any of these HR to-do list items, please feel free to contact any member of our Labor & Employment Law Practice Group.

To read more, please click here.

Related Practice Areas

Related Attorneys