Learning & Development

Attorneys Define 4 Key Employment Law Problem Areas … And How to Avoid Them

Two sources of employment law advice come up with some “nuggets” of great advice on how to deal with a quartet of common pitfalls.

Do all employment lawyers think alike?

Sometimes it seems so, when, in our reading, we come up with two remarkably similar articles, in two widely (and sometimes wildly) different places.

Such was the case while reading the websites of Shaw Valenza, LLP (SV), and that of Professional Roofing (PR) magazine, which despite its upward-pointed orientation, is a wonderful source of down-to-earth employment law advice.

What we found in both locations were remarkably similar checklists of common employment law blunders in four critical areas. Both articles contained valuable nuggets seldom seen. We’ve combined and consolidated their advice, in the following list:

(1) War on Wage and Hour Mistakes. Both sources make the point that wage and hour litigation is increasing by leaps and bounds, even outpacing discrimination suits. The best way to avoid it: Properly classify your workers as exempt or nonexempt on the basis of both federal and state law.

PR’s article, by attorneys Victoria L. Donati and Jason C. Kim of the law firm Neal, Gerber & Eisenberg LLP, also cautions readers to be careful that bonuses and commissions are included in calculating overtime rates and that deductions, commissions, and time-rounding policies meet both federal and state law. SV advises that an HR audit is the best way to check it all out.

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(2) Avoid Illegal Hiring Practices. PR concentrates on illegal interview questions, pointing out that “the best way to ensure an interview question is proper is to tailor it so it only seeks information that bears on the candidate’s job-related qualifications.”

Both sources concentrate on background checks, strongly advising employers to do them but to be sure they’re done legally. SV points out that a waiver from a candidate allowing a third-party investigator to do the check must be separate from any employment application and that the candidate must receive a report of whatever a third-party investigator learns.

(3) Deal with leave requests properly. While HR professionals know an FMLA, ADA or other protected leave request when they hear it, supervisors may not. Even the employees involved may not even know there’s a law — until, denied leave, they hear it from a lawyer. To avoid this problem, says PR, “make certain each of your supervisors … reviews and understands … the types of requests that may trigger a protected leave.”

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(4) Use Training to Defend Harassment or Discrimination Suits. Both sources point out the increasing risk of being hit with a harassment or discrimination suit, but both also point out that there’s a means of defeating such suits. That’s the existence of a strong antiharassment policy and the training to back it up. “One of the best defenses available to an employer,” says SV, “is that it took all action reasonably possible to prevent and correct any [such] behavior. The first factor is whether the employer properly trained its employees (not just supervisors).” PR refers to the combination of policy and training as “the harassment-claim antidote.”

Both sources strongly advise thoroughly documenting every job action, especially when discipline is involved. Without documentation, the PR authors write that, in cases filed months or even years later, an employer’s defense is reduced to “sketchy reconstructions and ‘what ifs’ that are far less believable than simple, but timely recorded, data.”

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