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Human Resources Refresher Course For Employers

by Jim Guttmann, on November 29, 2017
The vast majority of employers have a good understanding of why there are employment laws. They understand that employees should be eligible to work in the United States, work in a safe and comfortable work environment that is non-discriminatory, paid properly, treated with respect, etc. However, employers can nevertheless have costly missteps even when they have the best of intentions. Shown below is a list of ten instances where that could be the case.

Performance Reviews Run Amuck. Although not legally required to do so, some employers conduct annual performance reviews. Often the reviews coincide with an employee’s anniversary date. However, we are human and sometimes become occupied with other things. Reviews delayed or completely forgotten can create dissatisfaction with employees. A poorly managed performance review system probably does more harm than good. A solution may be to conduct all performance reviews at a certain time of the year or invest in performance review software that integrates with the Human Resources Information System (HRIS).

Not Following Established Policies. Sometimes employers will spend a great deal of time in development of extensive policies on attendance, leaves of absence, dress/appearance etc. Yet, policies not consistently applied or enforced can be a problem for the employer. Employees not held to the same published standards as others may claim discrimination due to their protected status. Make sure that you have a sound system in place to administer your policies fairly.

Illegal Work Rules. For instance, an employer should not publish a work rule that strictly prohibits employees from discussing salaries, benefits or other work conditions with co-workers or threatens “offenders” with termination if they do. Such a work rule would run afoul with the National Labor Relations Act. The Act views these activities as the exercise of free speech in the workplace. When developing company work rules, always check with a Human Resources Professional before publishing.

Not So Random Drug Testing. Some employers may want to send an employee for a drug screen based on a “hunch” that a “questionable employee” may be using illicit drugs even though there is not enough evidence to support a “reasonable suspicion” drug test. Consequently, the employer may tell the employee to go take a “random test.” Unfortunately, such a statement is false and potentially discriminatory toward the individual. A random drug test program is a formally announced program (not casual in nature). Random testing occurs on an unannounced and unpredictable basis. Employee identification numbers for a select number of employees become part of a testing pool. From there, scientifically arbitrary selections are usually computer-generated to ensure that it is truly random. Each person of the workforce population has an equal chance of selection for testing. In the scenario of the “questionable employee,” a far better approach would be a blanket testing of all employees in that individual’s division or department.

Phantom Disciplinary Letters. When presenting an employee with a formal warning letter, mistakes can occur. First, without an employee signature, the employer has no direct evidence that the disciplinary meeting took place. On the other hand, what if the employee refuses to sign and walks out of the meeting? In that event, another member of management should be present as a witness. The supervisor may indicate on the letter that the employee refused to sign and the witness also signs. That creates a clear record that the disciplinary meeting did take place. Keep in mind, however, that employees will usually sign if given the opportunity to provide their comments. Include a section in the disciplinary letter for that purpose. 

Untimely OSHA Reporting.  An employer is required to notify OSHA within eight hours of any death of an employee – regardless of the cause of death. For instance, if your employee has a heart attack at his desk, notification is required even though the employer strongly suspects that there was no workplace injury involved. If the reporting is not timely, the employer can be subject to fines from the Occupational Health and Safety Administration (OSHA). OSHA also has other notification requirements in instances of hospitalization, amputation or the loss of an eye. Do not be caught off guard by being unfamiliar with these regulations.  Refer to additional information here.

Out of Compliance I-9 Form. The United States Citizenship and Immigration Services (USCIS) has some very strict rules regarding the proper use of their forms. Forms that are not properly completed or are outdated can put an employer at risk for fines. It does not matter that the employer acted within the spirit of the law. For information on completing the proper form in the proper way, refer to this link provided by the USCIS.

Out-of-Date Handbook. Employers can invest a great deal of time and expense in publishing an employee handbook only to forget about it after several years. Over the course of those years, there may be updated federal/state laws and guidance from government agencies that render the handbook out-of-date. When that happens, the employer may be out of compliance with the law. We strongly encourage employers to conduct an annual review of the handbook to make certain that it incorporates any needed changes.

Holding Hostage the Employee’s Final Pay. When a disgruntled employee leaves, sometimes issues arise that are unpleasant. The employee may have let a lot of things slide. Perhaps the employee may not have worked out his/her notice period. The employer may have felt betrayed. A natural tendency might be to withhold final pay until certain matters are rectified. Perhaps the employer feels that a little “pay back” is in order. However, the Department of Labor exists to make certain that employees are correctly paid. This agency will not care that the employer may have “an ax to grind” with the departing employee. Additionally, some state laws mandate payment of final wages by a certain time. Avoid potential fines by dealing with the other issues in a different manner.

Improper Timesheet Adjustments.  Employers may instruct their hourly employees that overtime is unauthorized. When employees disregard those instructions, management sometimes believes they can adjust the employee’s timesheet to reflect only 40 hours that week. The employee may not even be aware that the supervisor has “corrected” the time. Such a practice clearly violates the terms of the Fair Labor Standards Act. An employer should not make changes to an employee’s timesheet without the employee’s knowledge. Pay hourly employees for all time worked even when that work was unauthorized. The best way to address unauthorized overtime is through the progressive disciplinary process. 

In summary, these are just some of many examples of situations in which the best of intentions are not good enough. LandrumHR has a staff of certified human resources professionals that can help keep you from making these inadvertent mistakes. For more information, contact us at (800) 888-0472 or (850) 476-5100. 
Jim Guttmann

As a LandrumHR Senior Human Resources Manager, Jim is certified as a Senior Professional in Human Resources (SPHR) and has over 30 years of HR generalist experience. He holds a Masters in Business Administration from Florida State University and is an active member of the Raleigh-Wake Human Resources Management Association in North Carolina. Jim is also certified as a County Mediator in the State of Florida and in the administration of the Myers Briggs Type Indicator (MBTI). Jim is also very involved in his church community and is commissioned as Stephen Ministry Leader.

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