Recently, attorney Aaron Zandy of FordHarrison LLP gave a presentation to a large group of HR professionals entitled The Ultimate Legal/HR Audit: An HR Attorney’s Perspective. During his presentation, he explained what he would do if he were taking over the HR function at a company. His list of “to do’s” included:
- Upgrade Personnel Policies
- “Own” Leave Management
- Stockpile Model Forms
- Critically Assess Wage & Hour Practices
- Require Meaningful Management Training
Upgrade Personnel Policies
Handbook policies should be written in easy-to-understand language that reflects the culture of the organization and management philosophy.
Of course, there are legal necessities that must be included in the handbook such as policies stating employment is “at-will” and that the handbook is not a contract. Additionally, it is extremely important that the organization include policies on:
- Equal Employment Opportunity – Include the addition of veteran status, genetic information, marital status, and sexual orientation/gender identity to the list of protections AND a generic statement “all other legally protected characteristics”.
- Harassment-free and Discrimination-free Policy – All types of harassment and discrimination should be prohibited and a clear complaint procedure that identifies at least two positions to whom the employee may report complaints should be included. The policy should further state that retaliation is prohibited.
- Family & Medical Leave Act Policy – Review your policy to ensure all legal revisions in the past few years have been incorporated.
- Fair Labor Standards Act (FLSA) Safe Harbor Policy – This policy prohibits improper deductions and includes a complaint mechanism, a commitment to comply with FLSA and a procedure for reimbursing improper deductions.
- Florida-Specific Policies – Such policies include Drug-Free Workplace Policies, Domestic Violence Leave (for employers with 50 or more employees), and Guns at Work.
- National Labor Relations Board (NLRB) Handbook Attacks – Over the past several years the NLRB has issued rulings on various handbook policies (social media, confidentiality, employment at will, etc.) indicating that certain wording violates employee’s rights under the National Labor Relations Act (NLRA). The NLRB General Counsel has even issued a memo that explains the various rulings on handbook policies and offers suggested acceptable phrasing.
“Own Leave Management”
Administering leave under FMLA can be confusing. However, Zandy shared some tips for taking control of leave management.
- Create a “go-to” folder for leave management that contains templates and forms.
- Use only the government’s FMLA forms.
- Verify your internal process comply with DOL time frames
- 5 days for Notice of Eligibility & Rights & Responsibilities
- 15 days for return of Certification of Healthcare Provider
- 5 days for Designation Notice
- Provide the Designation Notice to the employee regardless of whether or not the leave is being designated as FMLA (even if it is denied).
- Monitor absences of employees who are on intermittent leave to ensure they comply with the certification from the healthcare provider. If they do not, ask for recertification.
- Require employees who are on intermittent leave to report the reason for their absences (FMLA or non-FMLA). Also require them to comply with your policy regarding notifying the company of their absence.
- Always run FMLA concurrently with a workers’ compensation leave and any other personal leaves to avoid longer-than-necessary leaves. This includes requiring employees to substitute paid leave (vacation and sick time for example) for unpaid leave while on FMLA.
- Always require employees to provide fitness-for-duty documentation to return to work. Remember to notify the employee of this requirement on the Designation Notice form; otherwise, you lose your right to ask for it.
- Avoid employees communicating with managers regarding their health conditions, treatments, etc. Those communications should all be directed to HR in order to ensure compliance with confidentiality requirements under the Americans with Disabilities Act (ADA).
- Liability for FMLA rests for employers even if leave is administered by a third party. Stay in close touch with your third party FMLA administrator to make sure nothing slips through the cracks.
- Don’t automatically terminate individuals whose FMLA leave has exhausted. After FMLA, requests for additional leave must be analyzed under ADA.
- Genetic Information Nondiscrimination Act of 2008 (GINA) – Don’t forget to include disclaimer language on your cover letter with your FMLA forms or in your letter requesting additional information to analyze extensions of leave under ADA. The disclaimer should read:
- “GINA prohibits employers & other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.”
Stockpile Model Forms
Aaron Zandy recommends employers maintain current forms such as:
- Applications for Employment – Make sure there are no questions that would identify protected information or automatically disqualify individuals from consideration for employment because of a criminal conviction. Eliminate open-ended questions that are not job-related.
- EEO-1 Compliance (100 or more employees unless a federal contractor/subcontractor)
- Fair Credit Reporting Act (FCRA) – Including current Summary of Rights and sample pre-adverse and adverse action letters
- Offer Letters
- Non-compete, Non-Solicitation and Confidentiality Agreements
- Arbitration Agreements
- Class & Collective Action Waivers and Jury Waivers
- “I understand as a condition of my employment, I am waiving my right to have a jury trial to resolve any lawsuit related to my employment & I understand and agree I am waiving my right to participate as a member of a class or collection lawsuit in any lawsuit against my employer.”
- Separation Agreements – Use different agreements for those under age 40 and those over age 40. Also use different agreements when separating an individual versus a group of employees to whom you may offer separation benefits or other termination incentives.
Critically Assess Wage & Hour Practices
- Lawsuits alleging FLSA violations are among the most frequently filed in the nation. The most common FLSA violations involve:
- Misclassification (exempt v. non-exempt)
- Timesheets (not having a time record completed by each non-exempt employee and/or having a time record that is incomplete)
- “Off the Clock” Work
- Travel & Training Time (making sure this time is included as hours worked and paid for the workweek)
- Bonuses/Premium Pay (making sure overtime is properly calculated on the bonus and/or premim pay)
- Tip Credit/Tip Pooling/Tip Sharing
- Child Labor
The Department of Labor website has fact sheets that can help you understand your FLSA requirements.
Require Meaningful Management Training
Training supervisors and managers is a key component to preventing employment lawsuits. Training should be conducted on a regular basis and include:
- Overview of labor and employment laws
- Summary of what constitutes unlawful harassment in the workplace
- Concept of individual liability and vicarious liability (they are considered the employer)
- Common workplace issues that result in legal liability
- Communication & leadership skills
- Discipline, documentation and termination
When conducting training, keep in mind that management needs to know “why”:
- We want them to know all policies & procedures;
- We tell them to document, document, document;
- We use progressive discipline (“fairness”);
- We require policies to be applied consistently;
- We expect all employees to be treated equally;
- We want them to manage by walking around;
- We tell them to follow-up after complaints;
- We do performance evaluations honestly & timely;
- We preach that “all employees want to be loved!”
EAF is ready to assist you in each of these areas. We make updated handbook policies available in the members-only section of our website, answer hotline questions on HR related topics such as managing FMLA leaves and paying employees in compliance with the FLSA, and provide a variety of training options for employers – online, onsite and classroom. If you are already an EAF member, please call us to learn more about how you can take advantage of your membership benefits. If you are not yet an EAF member, we encourage you to learn more about us viewing our “Get Acquainted with EAF” webcast.
Leave a Reply