How About a New Year’s Resolution for your Business?

“This year, I will check the overall health of my workplace !!”

Every year, around this time, we all come up with resolutions to better ourselves, among them:

• Spend More Time with Family & Friends
• Learn Something New
• Help Others
• Get Organized
• Save Money,
• Tame the Bulge, etc.

It is more important than ever for employers to have their workplaces in order. A flurry of recent governmental reorganization efforts and court decisions have heightened the need for employers to ensure that they are in compliance with a wide array of federal, state and local employment law requirements.

Benjamin Franklin’s lesson that “an ounce of prevention is worth a pound of cure,” is more true than ever. It’s critical to establish policies, provide training and implement procedures to ensure that employers are in compliance and are not exposed to lawsuits and possible “bet-the-company” lawsuits. As an employer, you have the ability to be pro-active, control costs and contain exposure; but it does not happen automatically.

Courts regularly deny an otherwise valid defense available to an employer and allow cases to proceed to a jury trial simply because an employer’s policies were deficient and/or the employer failed to provide simple, basic harassment training to employees. In some instances, even punitive damages have been awarded where the employer did not have an “active mechanism for renewing employees’ awareness of the policies through . . . specific education programs.” The U.S. Supreme Court has ruled that damages may be avoided where the employer has made “good-faith” efforts to prevent harassment and discrimination, including educating its personnel. An employer’s exposure can be minimized with proper policies, training and follow up.

Consider the following Employment Law Compliance Checklist to help examine some of the simple steps we can help you take to protect against unnecessary risks to your business.

On-the-Job:

• Annual FLSA Wage and Hour audit of employees/positions—classifying exempt and non-exempt employees properly to comply with payment of overtime requirements;
• Annual audit of W-2 Employees and 1099 Independent Contractors for proper classification;
• Immigration Law (I-9) Compliance Audit;
• Establish employee record keeping & documentation procedures;
• Implement best practices for compliance with local, state, and federal governmental agency rules and regulations;
• Assist client to meet federal contractor requirements (OFCCP);
• Keep Employment Agreements and Independent Contractor agreements up-to-date;
• Preparing Restrictive Covenants Agreements (Non-compete/non-solicitation/non-disclosure);
• Implementing safeguards to protect company Intellectual Property assets and Confidential Information;
• Assist Company in obtaining suitable Employment Practices Liability Insurance (“EPLI”)?

Policies and Procedures/Employee Handbook:

• Update policies prohibiting harassment, discrimination and retaliation and establish necessary complaint procedures;
• Apply best practices to deal with employee “Pretaliation,” where employees file often baseless claims solely to avoid a looming termination or reduction in force;
• Update policies to include the provisions of the newly-revised Family and Medical Leave Act and the ADA Amendments Act;
• Update policies regarding payment of overtime compensation (how do you establish employee adherence to schedules to control when overtime is worked and compensadted?);
• Update policies regarding telecommuting, use of social media after hours, bona fide meal breaks, working off the clock, and time & attendance;
• Drug and alcohol use and the ADA – Do your policies address the interplay between and among the FMLA, ADA, Florida Workers Compensation laws and your company’s PTO policies?;
• Workplace Safety and Weapons – What do you allow to be kept in an employee’s vehicle? Has your policy been updated to reflect the Florida “guns in the workplace” law?
• Progressive Discipline – Do you need such a policy? Does it hurt you more than it helps?
• Information Technology (including computer, internet and e-mail, voice mail, telephone and other electronic systems) and employee privacy rights – Who’s information is it and how is it protected? Do you define the proper & improper use of the company computer systems?
• Non-disclosure and confidentiality – What steps have you taken to protect your organization’s Trade Secrets and other confidential/proprietary information?
• Record keeping, document and electronic data retention – Will you be able to comply with the new Federal Rules?

Training:

• Annual harassment, discrimination, sensitivity & retaliation training:
  • Supervisors/management
  • Subordinates
• FLSA compliance training for management & payroll
• Record keeping and document retention training:
  • Human resource-related requirements
  • Requirements for employees responsible for litigation
• Labor relations (NLRA) requirements for non-union employers.

Pre-hire:

• Proper forms and procedures for background checks – compliance with the Fair Credit Reporting Act
• Do you require pre-employment medical or physical exams?
• Are you in compliance with the ADA?
• Proper forms and procedures for drug and alcohol testing – are you subject to DOT or Florida DFWP provisions?
• Pre-employment verification forms
• Proper employment application
• Proper job description
• Affirmative action plan (if applicable)
• Department Of Transportation requirements met (if applicable)

(This checklist is not intended to be complete; we work with our clients to customize the checklist to meet their needs. See below).

Separate and apart from the above, Schwarzberg & Associates offers an Employment Law Hotline Program designed for clients to contact our firm to obtain our on-the-spot advice on employment law-related questions (not requiring research, document preparation, in-person meetings or other time-intensive activities). We have found that addressing issues BEFORE they become significant, or as promptly as possible thereafter, can often reduce the chances of an individual suing the company or filing a charge or complaint with a government agency. The goal of the Hotline is to enable you to seek our assistance from time to time responsively and economically while helping you to attempt to be in compliance with the wide range of laws, rules and regulations.

The Schwarzberg & Associates Employment Law and Compliance Team has extensive experience in developing effective policies, procedures and proactive responsive measures to deal with a myriad of workplace issues. Please do not hesitate to contact one of our members; Steve Schwarzberg or Lisa Kohring at (561) 659-3300 to obtain more information about our firm and its various employment law compliance and defense services.