Employment-related lawsuits have been climbing steadily for years, as have government enforcement actions and penalties for violations. So, it is more important than ever to make a commitment to protect your business by ensuring compliance with regulations governing the workplace. Here below are some compliance hot spots for your 2017 priority list:
- Job Descriptions: Job descriptions are essential for establishing a baseline of acceptable performance because they define expectations and provide a vehicle for documenting poor performance. And, while not legally required, job descriptions can help protect employers in two key compliance areas:
- Disability Accommodation. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to employees who, among other things, can perform the essential functions of the job. Well-designed job descriptions separate essential functions from marginal or desired ones so that employers can properly evaluate whether accommodation is required, and they enable the employer to document and support its actions when responding to (or denying) an accommodation request.
- Exempt vs. Non-Exempt. The now uncertain overtime rule change of 2016 highlighted the complex criteria that must be applied when determining if an employee can be paid via a salary and denied overtime pay. Thoughtful job descriptions, which in addition to job duties include requirements for education, skills and physical demands, aid in properly classifying employees and are the basis of documentation to support these decisions.
If you already have job descriptions, the new year is a great time to review them to ensure they still accurately reflect what each employee actually does, and particularly whether a job has evolved into a non-exempt position. For example, has a job become more automated by software? If so, it’s possible that a position that was once exempt no longer meets the requirements.
- Handbooks: An employee handbook is essential for protecting employees as well as protecting the business from its employees. In just about any termination or similar claim, the attorney, unemployment office, or anyone else who investigates will want to see the written policy the employee violated as well as proof the employee knew the policy existed (such as through a receipt signature page). Don’t put yourself in a position where you can't demonstrate either – just because a policy is “common sense” does not mean you can defend it in a lawsuit or enforcement action.If you already have a handbook, this is the time to have it reviewed for legal updates and to ensure it continues to reflect the actual practices and values of the business.
- I-9 Forms: In late 2016, the federal government published a revised I-9 form that is largely designed to make electronic completion easier, although forms are still required to have handwritten signatures. With the previous form invalid after January 21, 2017, the time is right to audit I-9s to ensure that every employee has a form on file and that it is completed fully and accurately. Note that the newest version does not have to be completed for existing employees unless a current employee has no I-9 on file. I-9 errors are usually relatively easy to correct but can be extremely costly to leave unchecked.
- Harassment Training: Courts and the EEOC have consistently ruled that having a well-written policy against harassment that is frequently communicated and coupled with periodic employee training is at the top of a short list of things employers can do to defend themselves in a harassment claim. Some states, including California, Connecticut and Maine, actually mandate training, although requirements vary. In 2016, the EEOC determined that to be effective, training must be interactive and meaningful to employees and be part of an ongoing, holistic approach to preventing harassment.
- Managing Poor Performers: Managing employees is one of the most difficult challenges in the workplace. Few managers like to have critical conversations and often they seek to avoid them. Now is a great time to consider how your managers handle poor performers. Here are some things to consider:
- Document all employee issues and conversations concerning performance, conduct and attendance. You never know what will escalate and, faced with any legal challenge, you do not want to rely on your memory. Documentation should be factual, focus on the behavior and not the person, and should not be speculative or inconsistent with outcomes. Even informal documentation, such as a verbal warning, should be written in such a way that presumes a jury may one day see it.
- Under-reacting to a situation can be just as dangerous as over-reacting to it. Dismissing complaints or letting issues fester undermines credibility and sets you up for claims of discrimination, favoritism and arbitrary treatment. Further, unaddressed problems tend to increase in severity, and it is difficult to crack down on one employee for behavior that you have not addressed previously with others.
- Be fair and consistent and keep emotions out of employment decisions. Giving a merit increase to a poor performer, overlooking policy violations or keeping employees who should be terminated are often rooted in good intentions but have dangerous consequences. Wanting to do right by your employees is normal, but not doing what is best for the health of the business will almost certainly come back to haunt you.
Give meaningful positive feedback. Most employers are well trained on providing constructive feedback and likely provide an over-abundance of insignificant feedback such as “good job” or “you’re doing good work.” Instead, consider spending some time with all of your performers to observe them doing something correctly and commenting on the importance of that act and why you appreciate it. You can be sure if you praise a particular action or activity, your employees will be likely to repeat it often in the future and it will give them the confidence to tackle the areas where they may need improvement.
As we welcome 2017, there remains significant uncertainty as to what workplace changes will result from a new Trump Administration and GOP-controlled House and Senate in areas such as the new overtime regulations, the status of the Affordable Care Act, minimum wage, mandatory e-verify, and existing labor law. Despite this uncertainty, the items listed above will likely not change and now is a great time to get your HR compliance house in order.
And, of course, if you need help, we’re always here to assist. Happy New Year from your friends at Affinity HR Group!
By Charlotte Jensen, Vice President, HR Compliance – Affinity HR Group Inc.