Employer, Audit Thyself!

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Constangy, Brooks, Smith & Prophete, LLP

Before the coming crackdown.

We expect federal agencies under the Biden Administration to move in a not-so-employer-friendly direction as soon as they have a chance to get settled in. While they're still settling in, this is the time for employers to review their practices, figure out where they're behind or doing wrong, and get themselves into shape before the boom is lowered. Here are 10 areas to scrutinize.

No. 10: Reference policies. A hat tip on this one to Allen Smith of HR Magazine. Are you handling requests for references properly? Are all requests for references sent to Human Resources? Are you providing only dates of employment and positions held, and no other information? Are you making appropriate and consistent exceptions to help an employee whose position was eliminated through no fault of his own, or to alert a prospective employer that your ex-employee is a violent sociopath? In the latter circumstance, are you complying with your state laws about truthful references? And do you have a handle on the number of managers who are doing their own thing and not following your policy?

No. 9: COVID policies. Have you decided whether you are going to require employees to be vaccinated? (Yes, you can require that.) If so, do you make appropriate exceptions for employees who have medical issues or religious objections? Are you complying with any applicable state laws that protect employees' political views? If the job allows for it, are you considering remote work as an accommodation for employees who won't be vaccinated? Are you complying with your state COVID safety standard if applicable? The latest guidelines from the Centers for Disease Control and Prevention? Are you pretty confident that your safety protocols will comply with any federal Emergency Temporary Standard issued by the Occupational Safety and Health Administration, assuming one is ever issued?

No. 8: Harassment training. When was the last time you had some good harassment training? Stop laughing! It's been a challenge to get training done while everyone has been working from home, but if people are coming back, this would be a good time to do it. Even if your employees aren't coming back for a while and it has to be done via videoconference, your harassment training needs to be current.

No. 7: Addressing poor performance. When employees perform poorly, are their supervisors doing anything beyond saying, "Tsk, tsk, you should do better next time"? In other words, are they addressing the issues in a constructive manner and -- even more important -- in a documented manner? Or when the manager gets fed up and insists you fire her lousy employee, are you going to have to start the performance improvement process from scratch, which means no termination until six months from now?

No. 6: Protected concerted activity. First, do you even know what this is?* If you do, have you reviewed your Trump-era policies and made revisions to reflect the dramatic changes that are coming? "Protected concerted activity" is very broad and applies even to non-union employers. It covers not only organizing activity but also policies addressing employee use of social media, employee discussions about wages and working conditions, and much more.

*Section 7 of the National Labor Relations Act says, "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . ." (Emphasis added.) If you have no idea what that means, there is a decent employee-oriented plain-language explanation here.

No. 5: Independent contractors. (You wish!) If you have workers you consider to be "independent contractors," go back and carefully review their circumstances, and reclassify them if you need to. The Trump Administration issued regulations with a fairly lenient standard on independent contractors, but the Biden Administration has already delayed the effective date, and we don't expect the Trump regulations to survive. In other words, we can expect the feds to take the position that most workers are "employees," not "independent contractors."

No. 4: Wages and compensation. Oh, where to start? It's far from clear that the $15/hour minimum wage will become a reality, but there are so many mistakes employers can make even with a minimum wage of $7.25. Failing to pay overtime to non-exempt employees. Looking the other way when non-exempt employees work "off the clock." Misclassifying non-exempt employees as exempt. Failing to pay exempt employees for the entire workweek in which they perform any work (with very limited exceptions). And we won't even get into pay equity issues. There's no time like the present to give the eye to your compliance with the Fair Labor Standards Act, applicable state and local wage-hour laws, and applicable equal pay laws.


No. 3: Reasonable accommodation. Reasonable accommodation of employees with disabilities or with pregnancy-related conditions continues to be a challenge for many employers. But here are a few ways to get a good start: (1) have a written policy on reasonable accommodation, (2) have a designated individual or department to handle reasonable accommodations (normally, that would be Human Resources), (3) make sure that the designated individual/department knows what he/she/it is doing, and if not, provide good training, and (4) (shameless plug) empower them to contact your employment counsel before they make any reasonable accommodation decisions they'll regret.

PS - Employers also have to try to accommodate employees' sincerely held religious beliefs, but this is one of the few areas that will probably become easier for employers under the Biden Administration.

No. 2: Juggling the Americans with Disabilities Act/the Family and Medical Leave Act/workers' compensation. I thought everybody had this down a few years ago, but it seems that some employers (like this one) are starting to focus again on only one of these laws when they should be thinking about all of them at once. I know it is very hard, but make sure that whoever handles these issues is keeping all the laws in mind. Large companies often have one person or department who handles ADA accommodations, another who handles FMLA leave, and yet another who handles workers' compensation cases. If that sounds like your company, make sure that all three individuals or departments are consulting with each other.

No. 1: Are you a good employer? Laws aside, what's it like being an average Joe or Jane in your company? Is the leadership transparent? Is there good communication with employees at all levels? Are management decisions fair, and made without favoritism? Do you pay reasonable wages, given the work that is performed, taking into account your industry and your community? Do you provide flexibility for employees who need it because of family or caregiver responsibilities? Do your employees perceive that you try to do the right thing? Does your company have the reputation of being a good place to work? It's easy to make mistakes, but if you get this right, you'll be forgiven a lot.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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