As we approach mid-2018, it’s not too late to make a promise to improve your workplace in this year. What will you do to ensure that employees have a workplace where they can thrive and produce without fear of unfair or improper treatment? 

What changes will you make, or at least consider, that will help to reduce legal liability for violation of federal and state workplace regulations? What will you do to ensure that your managers and supervisors are confident that the actions they take regarding employees will be consistent with both the law and good management practices?

Too often workplace policies are only considered in the context of some negative action, such as a termination or other employment issues. Sometimes it may involve a legal claim by an applicant or employee. This article is intended to serve as a reminder of some of the more significant workplace issues that should bear serious consideration throughout the year.

Handbook policies

The first consideration should be whether the current employee handbook or similar document is adequate for addressing the issues that routinely arise in most workplaces. Do you have policies that would pass muster under the current regimen of both state and federal workplace regulations? For example, are the company’s anti-harassment policies and procedures adequate to qualify for the affirmative defense against harassment that is available under U.S. Supreme Court precedent?

Currently, in order to avoid liability for unlawful workplace harassment, an employer must demonstrate that it acted reasonably in seeking to prevent and promptly address any claims of unlawful harassment. To do so, an employer must have in place a comprehensive no-harassment policy and a reasonable procedure for employees to file a complaint regarding any improper conduct. Additionally, the employer must show that it acted promptly to effectively address an alleged violation of the policy.

How long has it been since you reviewed and updated your anti-harassment policy? Are you certain that all employees know of the policy and how to make a complaint? Have you included the option to take a complaint to any member of management? Sometimes the issue is with a supervisor. A female employee may want to speak to a member of management of her gender. In general, if you have not reviewed and updated your employee handbook and the specific policies set out there within the last three years, it probably contains policies that are outdated or it is lacking policies that are needed in today’s workplace.

Working off-the-clock

Most employee handbooks, unfortunately, rarely address one of the issues that many employers are dealing with today: pay liability for off-the-clock work. Until they are confronted with a claim, few employees are even aware that it may be an issue. Numerous wage and hour lawsuits have been filed across the country, some at the class action level, alleging that employees routinely performed work-related tasks either before or after the regular work day and were not compensated. In most cases, it is a claim for overtime, which would entitle a successful claimant to liquidated damages (aka double damages) and attorney’s fees. Such claims are relatively easy to make and usually come from a fired or disgruntled employee.

These cases are particularly prevalent in states that have wage and hour laws that go beyond the federal Fair Labor Standards Act, such as California.  

A proper policy should require that no employees engage in overtime work without prior authorization. The procedure should require some form of written confirmation. Similarly, it should caution against any off-the-clock work, with a clear indication that violation of the policy will result in disciplinary action. Repeated violations should warrant termination. Unfortunately, an employer is required to pay for all work performed, even if done in violation of a company policy. Disciplinary action is the proper and only legal manner of addressing the issue.

Severing ties

Employers that choose to keep an underperforming employee must make efforts to help the employee be more productive in the coming year, which will also help increase the company’s bottom line. The first step is to assess what caused the employee to be unproductive this year. Was it a one-time event such as a family emergency or tragedy? Was it something that the employee has struggled with since he or she was first hired? Have you taken any steps in the past to improve the employee’s performance? What worked? What didn’t? The next step is to meet with the employee during his/her review and provide the employee steps that they can undertake to meet your expectations. Finally, the most important step is to follow up with employees periodically (perhaps monthly or quarterly) to ensure that they continue to make progress toward your standards.

If you choose to terminate the underperforming employee, then you should document the reasons for the termination. The reasons could include performance issues, disciplinary issues and any other relevant reasons that detail why the employee is being terminated. These reasons help protect companies from liability if an employee decides to sue for discrimination. Once you have documented the reasons, you should schedule the meeting with the employee and begin the termination process.

Richard D. Alaniz is a partner at Cruickshank & Alaniz, a labor and employment firm based in Houston. He has worked in labor and employment law for over 30 years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Alaniz conducts frequent seminars to client companies and trade associations across the country. Questions or requests to subscribe to receive his monthly articles can be addressed at (281) 833-2200 or  ralaniz@a-c-law.com.

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