AN HR MANAGER’S NEW YEAR’S RESOLUTIONS (OR WHAT YOUR EMPLOYMENT LAWYER HOPES THEY WILL BE)

If you are in Human Resources, it’s not too late to come up with some resolutions to start doing things differently in 2013.  And in case you are looking for suggestions, here are ten ideas that should help make the next twelve months and beyond less troublesome for you:

 

10.       Document Decisions 

A paper trail is almost always helpful.  Making and keeping careful and judicious notes about why you made the decision to discipline or terminate can be a big help if the employee later sues.  Memories fade and having a document to refresh your recollection can be invaluable if you have to defend your decision in a deposition or at trial. 

9.         Review/Revise the Social Media Policy 

The National Labor Relations Board is devoting a lot of effort to policing social media policies.  Consult with your attorney to make sure that yours are in compliance.  The policy should not be so broad as to inhibit employees from conferring about conditions of employment, as protected by Section 7 of the National Labor Relations Act.  Also, think about including language as to the ownership of social media accounts so that a departing employee doesn’t end up with the rights.  

8.         Update the Harassment Policies  

The list of classes of persons protected from discrimination is ever expanding, so take the time to make sure that your policy addresses all of them.  In 2012, protection was expanded to include transgender individuals.  The EEOC recently noted that victims of domestic or dating violence or stalking may be subject to discrimination in violation of Title VII and/or the ADA, so make sure your policy has the appropriate language.   

7.         Have everyone sign off on the annual statement reminding employees of their          EEO/Non-Discrimination and Anti-Harassment policies

This may be time-consuming and seem like an unnecessary hassle, but your attorney will thank you for making the effort if he or she is ever called upon to defend you in a discrimination or harassment claim or case.

6.         See that all separating employees are paid on a timely basis

Across the country and around West Virginia, lawyers for employees are bringing class action lawsuits against employers for failing to properly pay departing employees.  Review your payroll policies and talk to your payroll personnel or outside service to make sure that you are following your state’s Wage Payment Collection Act to pay all wages, as well as any benefits that may be owed under your company’s policies. 

                       For example, in West Virginia, you must pay:   

            –           Within 72 hours if discharged;

            –           The next regular payday if resigned without notice;

            –           The last day of work if resigned with notice; and

            –           The next regular pay day if laid off or suspended as a result of a labor dispute.

Make every effort to see that the check is in the hands of the employee within the time period. Good faith may not be a defense to such a claim, and the statutory penalty and attorneys fees for failure to comply can be brutal.

5.         Prepare my company for the impending health care law

The U.S. Supreme Court didn’t strike down the Patient Protection Affordable Care Act, so there’s work to do.  Make an appointment with your insurance broker or other appropriate professional to make sure your company is ready for the changes that 2014 will bring.   

4.         Make sure that my personnel files are in good shape

             Remember your personnel files should include the following: 

A signed application; a position description (which should include the essential functions of the job, which will be very helpful if a request for accommodation is ever made); and a job announcement, if available.

The file should not include any medical information that you may have received as result of a pre-employment medical exam.  Medical records should be kept in a separate file at all times.

3.         If you’re thinking about encouraging your employees to get into shape…  

If a company wellness program is on your agenda for 2013, consider creating a wellness committee representative of all levels of employees to ensure widespread participation and buy-in.  Be careful that the program does not violate the GINA (Genetic Information Discrimination Act of 2008) law or regulations by improperly collecting genetic information.  Also think about whether any progress incentive may result in discrimination under the ADA or HIPAA. 

2.         Look at the company’s use of pre-employment criminal background and credit checks  

The EEOC has been recently targeting employers whose use of pre-employment screening may have a disparate impact on protected classes and issued new enforcement guidance on this subject this year.  Now is a good time to look at the type of checks you run and how you evaluate the results to avoid a possible challenge by an unsuccessful applicant or head off an EEOC investigation.  Think about whether the results of a credit report are really providing you with useful information, particularly in the current economic climate and the criteria you’re using to disqualify applicants with arrest records, i.e., automatic disqualification; how remote in time the charge may be; and the nature of the charge or outcome.  Also, consider whether a credit or criminal background check is warranted for all positions or just those involving the company’s finances, sensitive information or security.   

1.         When in doubt, call your lawyer BEFORE, not AFTER, making a difficult decision

Your lawyer will thank you for calling and letting him or her talk you through a thorny issue.  It’s almost impossible to avoid litigation, but      reviewing your options before acting may help you avoid the time and expense of a lawsuit in the future.

Tracey Eberling focuses her practice in the area of litigation, with a concentration in the defense of institutions, professionals, insurance companies and governmental entities.
 
» See more articles by Tracey B. Eberling
» Read the full biography of Tracey B. Eberling at Steptoe & Johnson

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