Common Employer Mistakes

by Don Hill

If an employer can avoid common legal mistakes, it can save the time and expense of defending costly legal claims. These mistakes include:

1. Not Taking the Time to Hire the Most Qualified Employees. It is harder to terminate a poor employee than to take the time to hire a qualified employee. Proper procedures include a legal application for employment, defining the essential functions of the job, asking appropriate interview questions, obtaining employment references, and using legal pre-employment tests.

2. Not Properly Completing Form I-9. Immigration laws require proper completion of the Form I-9. This requires completing every part of the form and obtaining and reviewing proper employee documentation. The government is aggressively auditing Form I-9 compliance.

3. Not Documenting and Following Employment at Will Policies. Employment “at will” means an employee can resign at any time and be terminated by the employer at any time. Employment at will needs to be documented carefully in employee handbooks, applications for employment, and other documents. Employers need to understand statutory exceptions to employment at will, such as prohibiting terminations for filing for bankruptcy, serving on a jury, or wage garnishment. Judicial exceptions include prohibiting termination for filing a workers’ compensation claim or whistleblowing. An employer can also negate employment at will based on what is stated by supervision or written in employee handbooks, performance evaluations, and other documents.

4. Not Taking Unlawful Discrimination Laws Seriously. Unlawful discrimination claims pose significant legal risks for employers. Employers need to understand which groups are protected by the laws and the importance of training supervisors, consistent treatment of employees, use of progressive discipline, and good documentation.

5. Not Taking Steps to Prevent, Recognize and Respond to Sexual and Other Harassment Claims. Employers need to develop good policies, train supervisors, and encourage employees to report alleged sexual and other types of harassment. Employers should investigate allegations carefully and respond promptly and appropriately to correct and prevent harassment.

6. Poor Front-Line Supervision. The number one reason employees seek the outside help of a union, governmental agency, or an attorney is because of poor front-line supervision, including favoritism, intimidation, and incompetence. Employers need to train supervisors in proper employee relations practices, including positive supervision, appropriate affirmation, active listening to employees, and being alert to correct poor working conditions.

7. Not Evaluating Employees Regularly and Honestly. Conducting appropriate, timely, and accurate performance appraisals of employees is critical. This gives the opportunity for communication between an employer and its employees and allows interaction about job performance as well as career development goals. Inaccurate and late performance evaluations can expose an employer to significant legal risks.

8. Not Following Proper Procedures Including Progressive Discipline. Except for serious infractions, employers should implement progressive discipline, which can include verbal coaching, written counselings, suspensions, and termination.

9. Not Designating Eligible Leaves as Family and Medical Leaves. If an employer has more than 50 employees, and an eligible employee has a serious health condition, has a family member with a serious health condition, gives birth to or adopts a child, or for certain military-related leaves, proper Family and Medical Leave procedures should be implemented.

10. Not Properly Classifying Salaried Exempt Employees Under the Wage and Hour Law. All employees are entitled to be paid minimum wage and overtime for all hours worked over 40 in a workweek, unless the employee meets the detailed requirements to be exempt as an executive, administrative, or professional employee, outside salesperson, or another exemption. The burden is on the employer to prove an employee is exempt.

11. Not Understanding the Interplay Between the Family and Medical Leave Act, Americans with Disabilities Act, and Workers’ Compensation Act. The interplay of these laws is critical in determining when employees take leave, reinstatement after leave ends, discipline, and termination.

12. Making Improper Deductions from the Paychecks of Employees. Kansas law prohibits many deductions employers make from employee paychecks, such as for cash shortages, negligence, certain uniforms and tools, and debts owed the employer.

13. Not Following Employer’s Own Policies and Procedures. Although sometimes exceptions to an employer’s policies and procedures can be made, in order to avoid claims, an employer should follow its own policies and procedures.

14. Not Showing the Year on Employment Documents. Employment documents should show the full month, day, and year in order to avoid later confusion about when the document was written.

15. Telling Your Attorney Only the Good Facts. Don’t be embarrassed to tell your attorney everything so you can get the best legal advice.

We would be glad to assist you in avoiding these common employer legal mistakes.

 (Article appeared in Adams Jones September 2011 Newsletter)