September 09, 2015
Every time I go to the doctor, he tells me to lose weight, lower my cholesterol, exercise, and monitor my blood pressure. I do fine for a few days, but I revert to old habits before long. I think everyone does.
I imagine that employers do the same thing with labor law advice. With that in mind, I thought it would be a good idea to write an article about taking an inventory of your employment practices to make sure you are prepared to comply with the law. In addition, it will also give you the opportunity to make sure you are doing all the right things. So, this month's column is a discussion of preventative labor practices, the employment law equivalent of lowering your cholesterol.
Before I begin discussing the inventory of items you should consider, let me recommend that you do two things: find a good accountant and find a good labor lawyer. In fact, even though I am a lawyer, I think that having a good accountant is more important. With respect to having a labor lawyer, it is always a good idea to have an experienced one you can call to discuss a particularly tricky disciplinary action. It could save you hundreds, thousands, or hundreds of thousands, of dollars.
My first specific recommendation is to check to make sure that your personnel files are up-to-date. In particular, you need to make sure that you have I-9’s for your employees. These I-9’s, which are required of all employees to prove citizenship and/or eligibility to work in the United States, must be on file for each employee. While I recommend that you keep these documents separately from the personnel files, you should make sure that you have them properly completed as part of your personnel file review.
In reviewing your personnel files, you should understand that medical records must be kept separately. Failure to do so could result in disability claims under the Americans with Disabilities Act. Thus, if you have medical information, keep it in a separate medical file for the employee. The personnel file itself should have the employment application, any disciplinary actions, and regular performance reviews.
Employers should periodically review their wage and hour practices. Are you paying employees properly for all time worked? Are you not paying employees for time spent in the facility because they are ostensibly on personal time? You also need to make sure employees are not working more than 40 hours a week without being compensated at the overtime rate. Finally, if you are not paying overtime because certain employees are salaried, you need to make sure that they are exempt from overtime under the applicable wage and hour regulations. Salary alone is not a basis
for denying overtime.
Almost every labor and employment law has a requirement that a poster be put up on the employee bulletin board explaining rights under that particular state or federal law. These posters are free, and there are also enterprising companies that provide slick looking posters for a fee. You should make sure that all the posters are up. If you have a timeclock, that is a good place to put the posters. By the way, are you properly
recording time worked?
If you have new supervisors, you should make sure that they have been properly trained. Do they understand their responsibilities? Do they know what the company's position is on unionization? Do they know what to say and what not to say to employees when confronted with tricky employment situations? Do they know what to do when OSHA shows up?
This is probably a good time to review your employee handbook. If you do not have a handbook, there are plenty online, including my firm's website, where you can download a template and modify it to your company's needs. In most instances, written policies are not legally required, but they are certainly expected. What I mean by that is that while you are not legally required to have an employee handbook, agencies, judges, and juries expect to see an employee handbook when asked to determine whether an employee was properly disciplined or discharged.
I have discussed the need for supervisors and employees to be ready for OSHA inspections. This is probably a good time to also go over some of the do's and don'ts with them again.