In the manufacturing world, lawsuits are on the rise for violations of workers’ rights. Employers and their HR staff may feel that they have a good handle on what they can and cannot legally do. Yet the world is changing, and changing quickly. Ensuring that your company is legally compliant in its employee relations function is a challenging task, and a critical one. Use these 10 tips to better navigate employment law compliance, ensuring a better work environment for everyone.
1. Avoid discriminatory language in job postings. “Looking for energetic individual….” or “seeking new graduates….” are two examples of discriminatory red flags. Even if “energetic” doesn’t directly refer to age, and you may not intend it to imply a desire for younger workers, legally it may not stand up to the Equal Employment Opportunity’s ‘disparate impact’ rule that governs policies that appear to be neutral but exclude protected groups. Keep to the skills you are seeking to attract the type of employee you need.
2. Watch what information you ask for on job applications. Unless there is legal bona fide reason for a particular job (which is not common), you cannot ask for an applicant’s date of birth; this is a common mistake found on many boilerplate applications. Similarly, you cannot inquire about marital or family status or religious affiliation.
3. Clearly set forth essential functions and specific requirements in job descriptions. Setting forth general terms without detailing exact functions in job descriptions can lead to liability for possible discrimination in many possible protected classes, including disability.Be sure to list only the requirements that are related to the candidate’s ability to perform the essential functions of the job.
For physical requirements, consider whether the position requires an employee to stoop, kneel, crouch or crawl. Is climbing ladders necessary for the position, and if so, is that a regular duty, or just once per year, for cleaning out the storeroom? If it is not an essential function or routine task, that should be notated as well.
A properly drafted job description can also help an employer determine when the employee is entitled to a reasonable accommodation. For example, when considering a reasonable accommodation for a managerial position, look at whether the role requires more than just supervising employees. If the manager is a working manager where the essential functions involve “hands-on” tasks, those duties should be enumerated on the job description. If the manager is injured, and either an insurance company or the employee’s medical professional is reviewing the position, they will see exactly what tasks need to be performed and what accommodation would be reasonable.
4. Create and share a reporting structure and corporate chart. This is just as helpful before the hiring process as it is after. A simple chart showing reporting structure can help determine what roles you require, or whether you have too many workers assigned to one position, or perhaps too many managers. Additionally, this kind of chart can avoid the common employee complaint of not knowing whom to report to, which is a frequent issue in discrimination cases.
5. Properly classify positions. Make sure the position is correctly considered “Non-exempt” or “Exempt.” Non-exempt employees are hourly, earning overtime for all hours over 40 in a given work week. Additionally, hourly employees must be offered a meal break. (The time duration for the meal break varies by state.)
As of Dec. 1 2016, (although legislative votes may delay this implementation)employees must be earning at least $47,476 (federal law) to be exempt from overtime, although they still need to meet all “duties” tests. Exempt employees also cannot be docked, and there is a “guarantee” of payment each active working pay period.
6. Draft and implement personnel policies. Maintaining policies that are uniformly enforced is another way to ensure that your workforce is treated equitably and in a legally compliant manner. Your policies should also set forth your expectations and requirements with respect to workplace conduct, anti-harassment, , dress and personal presentation. Your policies provide an ideal vehicle for detailing the benefits that you provide, including time off and insurance.
7. Maintain proper personnel records. Personnel records should contain relevant information about the employee, including contact information, job application, resume, offer letter, performance reviews, warnings, commendations, and—upon separation from employment—a termination letter. Personnel records should not contain medical information about the employee – keep that separately in a “medical file” for each employee. Similarly, maintain I-9 forms in a separate I-9 file. (I-9 compliance is regulated by the Department of Homeland Security.)
8. Issue regular performance reviews. Typically, employers dread completing those assessments of their employees, not to mention presenting the review. No one wants to face an upset or angry employee. However, if upon a review, an employee appears to be blindsided, or is surprised or dismayed by the scores or comments, that is a sign that the employer has not been communicating sufficiently. Often, increasing the frequency of reviews alleviates this situation. Retaining performance reviews is also an important risk-management tool. If an employee brings a legal action alleging that he was terminated because of religion, age or disability, and you terminated that individual due to poor performance, the review would support your assertion.
9. Conduct anti-harassment and anti-discrimination training. While the EEOC guidelines “strongly recommend” training, it is not mandatory for most private employers. If conducted well (with interactive and varied tools, professional presenters and company-provided lunch or snacks), the training becomes a welcome benefit . Good trainingprovides information and assurances that the employer takes harassment or discrimination seriously and has a plan in place for addressing such complaints. That way, if an employee files a complaint, the employer can show that annual trainings were conducted, demonstrating a good-faith effort to address harassing and discriminatory behavior in a proactive and preventative manner.
10. Document the employee’s separation from employment. For good risk management and to avoid discrimination and other claims, businesses should have their ducks in a row before terminating an employee. Any and all wages due and other sums (e.g., earned unused vacation time) must be issued, and it is most advisable to issue a termination letter. If the employee is being terminated for violation of personnel policies and this was not a first-time offense, there should have been a warning in the personnel file regarding the earlier policy violation. If the termination is for willful misconduct in violation of the legitimate interests of the business, the termination letter should set forth the particular conduct. Sometimes, if an individual has been with the company for a substantial number of years and there is no misconduct, an employer might offer severance. The employer should obtain a release of claims from the employee in exchange for the severance. If the employee is receiving health insurance through the business, the employer must also issue COBRA forms.
Good employees are crucial to manufacturers. If you are a manufacturing executive, learning what to say to employees and how to say it—and maintaining the appropriate forms and documentation to back up your employee interactions—will go far toward ensuring the smooth operation of your company and providing positive outcomes for everyone involved.
A member of the Massachusetts Bar for over 30 years, Helene Horn Figman, J.D. is an employment law attorney who has successfully litigated before all courts in Massachusetts and the United States District Court. She currently advises businesses in all aspects of employment law compliance, defends employers in actions brought before the M.C.A.D. (Massachusetts Commission Against Discrimination), and presents anti-harassment and anti-discrimination training. For more information please visit www.figmanlaw.com.