HR Hero Line

HR’s New Year’s resolutions (or what your lawyer hopes they’ll be)

by Tracey B. Eberling

What will 2014 bring? It’s hard to say. If you’ve been in HR very long, you know that employment law and workplace issues can be unpredictable. But HR professionals can take precautionary, commonsense steps to prevent small problems from spiraling out of control. Here are some resolutions that should help make the new year a good one at your workplace. 

Document decisions
A paper trail is almost always helpful. Making and keeping careful and judicious notes about why you made the decision to discipline or terminate an employee can be a big help if he later sues. Memories fade, and having a document to refresh your recollection can be invaluable if you have to defend your decision in a deposition or at trial.

Review your policies and employee handbook
Under President Barack Obama, government agencies have been very employee-freindly and are devoting a lot of effort to pursuing employers on policy issues from social media to discrimination and harassment. Consult with your attorney to make sure your policies are in compliance.

Have everyone sign off on your policies
It may be time-consuming and seem like an unnecessary hassle to have your employees sign an annual statement reminding them of your equal employment opportunity (EEO), discrimination, and harassment policies, but your attorney will thank you for making the effort if she is ever called on to defend you in a discrimination or harassment case.

Make sure departing employees are timely paid
Across the country, lawyers are filing class action lawsuits against employers for failing to properly pay departing employees. Review your payroll policies, and talk to your payroll personnel or outside payroll service to make sure you’re following your state’s rules when paying all wages as well as any benefits owed under your company’s policies.

Prepare for impending healthcare law changes
Work with your insurance broker or other appropriate professional to ensure your company is ready for the healthcare changes that 2014 will bring.

Make sure personnel files are up to date
Remember, your personnel files should include a signed job application, a job description (including the essential functions of the job, which will be very helpful if a request for accommodation is ever made), and a job announcement, if available. The file should not include any medical information that you may have received as a result of a preemployment medical exam. Medical records should be kept in a separate file at all times.

Encourage employees to get into shape
If a company wellness program is on your agenda for 2014, consider creating a wellness committee with representatives from all levels of employees to ensure widespread participation and buy-in. Be careful that the program doesn’t violate the Genetic Information Nondiscrimination Act (GINA) or its regulations by improperly collecting genetic information. Also, think about whether any progress incentives may result in discrimination under the Americans with Disabilities Act or the Health Insurance Portability and Accountability Act (HIPAA).

Look at your use of criminal background and credit checks
The Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on criminal background and credit checks in 2012 and has been targeting employers whose preemployment screening may have a disparate impact on protected classes. Although nine states banded together to challenge the EEOC, now is a good time to look at the type of background checks you run and how you evaluate the results, to avoid a possible challenge by an unsuccessful job applicant or head off an EEOC investigation.

Think about whether the results of a credit report really are providing you with useful information, particularly in the current economic climate. Examine the criteria you’re using to disqualify applicants with arrest records. (Is it an automatic disqualification, or do you consider the remoteness in time of the charge and the nature of the crime or the outcome?) Also, consider whether a credit or criminal background check is warranted for all positions at your company or just for jobs involving finances, sensitive information, or security.

Call your lawyer before making a difficult decision
Your lawyer will thank you for calling and letting her talk you through a thorny issue. It’s almost impossible to avoid all employment litigation, but reviewing your options before acting may save you the time and expense of a lawsuit in certain cases.

Have a happy and safe 2014!


Tracey Eberling is an attorney with Steptoe & Johnson in Martinsburg, West Virginia. She focuses her practice in the areas of labor and employment law and litigation, with a concentration in the defense of institutions, professionals, insurance companies and governmental entities. She may be contacted at tracey.eberling@steptoe-johnson.com.