Ten Common Mistakes Employers Make
By: Peter R. Siegel, Esq.
With the proliferation of employee-related lawsuits showing no signs of slowing down, it is more important now than ever for Florida employers to avoid the most common mistakes which often result in discrimination lawsuits. Employers may limit their exposure to liability by remembering to avoid the following common mistakes:
Failing to conduct a legal job interview. Many discrimination lawsuits are filed by prospective employees as a result of employers conducting improper interviews. The following is a partial list of questions which must never be asked to job applicants: What is your date of birth? Have you ever been arrested? Do you have a disability? Have you ever been treated for drug addiction or drug abuse? Are you married? Are you pregnant? Does your religion prevent you from working weekends? Have you ever belonged to a union? Have you ever filed for workers’ compensation?Failing to have a sufficient Employee Handbook . Every employer should have an employee handbook and have it reviewed by labor counsel at least once a year. Every employee handbook should include a strong EEO (Equal Employment Opportunity) policy, a policy prohibiting sexual harassment and discrimination, and language making it clear that the handbook is meant for guidance only, that it does not constitute a contract, that the company reserves its right to terminate employees at will, and that the company may change the terms of the handbook at its discretion.Failing to recognize that business owners, human resources professionals, and supervisors may be personally liable for employment decisions. Business owners, human resources professionals, supervisors, and other decision makers may be personally liable for their decisions at the workplace. Penalties range from monetary fines to jail time. The good news is that managers and supervisors have been held immune from liability under some federal discrimination laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. However, too many companies fail to recognize that several employment laws contemplate personal liability for violations. For example, business owners, HR professionals, and supervisors may be personally liable under the Fair Labor Standards Act, the Equal Pay Act, the Family and Medical Leave Act, the Consolidated Omnibus Budget Reconciliation Act, the Employee Retirement Income Security Act, and the Immigration Control and Reform Act. If you make employment decisions as part of your job, you could be at risk personally for those decisions. Accordingly, it is strongly recommended that you make sure that your employment policies are updated regularly, that you understand the employment laws which govern the workplace, and that you consult with legal counsel before making significant personnel decisions.Failing to follow child labor laws when employing minors. Employers must remember that children under the age of 14 cannot work although there are exceptions for newspaper delivery and the entertainment industry. Minors (under the age of 18) cannot work in alcoholic beverage sales, in any occupation using forklifts and tractors over 20 horsepower, on scaffolding, or in “hazardous” occupations (including heavy construction, occupations using toxic or corrosive substances, electrical work, and roofing). Minors cannot operate heavy machinery or work with explosives or dangerous equipment. Children ages 14 or 15 are prohibited from working in the construction industry. Companies which employ minors must never forget to monitor their work schedules to ensure compliance with the numerous child labor laws. There are also regulations regarding maximum hours, prohibitions against working more than six consecutive days in a week; and different rules which apply depending upon whether school is in session as opposed to the summer and holidays.Failing to evaluate employees routinely and accurately. Most supervisors fail to write up employees who are having performance problems at work. As a result, many employees who are discharged have personnel files which are either replete with excellent evaluations or have no evaluations at all. If a personnel file fails to reflect the poor performance of an employee, the employer will have a difficult time justifying the discharge if a discrimination suit is filed.Failing to pay overtime to nonexempt employees. Unless an employee is deemed “exempt” as an executive, administrative, professional, or outside sales employee, employers must pay the employee time-and-a-half his/her regular hourly pay for all hours worked in excess of 40 per week. Many employers mistakenly pay employees a salary regardless of the number of hours they work and assume, incorrectly, that an employee who receives a salary is never entitled to overtime pay. Employers need to consult with legal counsel to ensure that they are acting in accordance with the requirements of the Fair Labor Standards Act. Such an approach will avoid the problems associated with having to pay back wages, penalties, and attorneys’ fees in the event of an audit by the United States Department of Labor and/or an employee lawsuit.Failing to establish an effective sexual harassment policy. Courts continue to hold employers liable for the actions of their supervisors and employees unless complaining employees fail to take advantage of company complaint procedures. Employers must, therefore, implement clear and concise policies and procedures which address sexual harassment in the workplace. It is also essential to train supervisors and employees with respect to these policies at least once a year. For a sexual harassment policy to withstand judicial scrutiny it should define forbidden behavior, require supervisors to treat subordinates with respect, provide alternative routes for complaints, describe disciplinary measures, encourage employees to voice concerns, clearly prohibit retaliation, and describe the responsibilities of employees and supervisors who are notified of the harassment. A definitive policy, combined with prompt action when harassment is discovered, forms the employer’s strongest shield against costly liability.Failing to understand that conditioning employment offers on medical exams is illegal. The Americans with Disabilities Act prohibits employers from requiring a medical examination, or asking disability-related questions, prior to making a job offer. Once a job offer is extended, the offer may be conditioned upon the results of a job-relevant medical examination if all employees in the same job category have to undergo a medical examination.Failing to establish an Internet/e-mail policy. Many employers are being sued for conduct involving employee use of the Internet and e-mail. Accordingly, employers must make it clear that Internet access and e-mail at the workplace should be used for company business only and not for personal purposes. In order to be effective, an Internet/e-mail policy must (1) be disseminated throughout the company and indicate the ramifications if the policy is violated (2) state that the company has the right to monitor all Internet and e-mail activities for any business purpose including employee supervision (3) prohibit access to adult materials on the Internet and (4) prohibit e-mail communications which could be considered offensive, harassing, or defamatory.Failure to conduct a human resources audit. The Equal Employment Opportunity Commission projects an even greater increase in the number of discrimination charges it will handle in the next few years involving age, disability, race, religion, national origin, and gender. It is therefore important to remember that a human resources audit conducted by a labor attorney can reduce an employer’s exposure to litigation by analyzing a company’s structure, policies, procedures, documents, and record-keeping practices to ensure compliance with the growing number of complicated employment laws. Such an audit is a productive first step that should be taken to increase compliance with these laws and decrease the liability inherent in employing people.
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