By Ted J. Schneider, Esq.
Employers are subject to countless federal, state and local laws, imposing various requirements, including wage and hour and anti-discrimination laws. Unfortunately, many employers – particularly small businesses – are unaware of their obligations and violate various worker protection laws, often resulting in expensive lawsuits, civil settlements and criminal fines. Here are some common, costly mistakes employers make:
Misclassifying Non-Exempt Workers as Exempt
Generally, all workers are entitled to overtime pay and subject to minimum wage requirements. However, some employees – typically executive, managerial or professional employees – are "exempt" and receive a flat salary without overtime pay. The exemption only applies in certain situations, however, and many employees have improperly classified workers as "exempt" when they are legally entitled to overtime wages and minimum wage requirements.
Misclassifying Employees as Independent Contractors
Determining whether a worker is an employee or independent contractor depends on the level of independence or control the worker has in completing his or her tasks; the less control exercised by the worker, the more likely he or she will be classified as an employee. Factors to consider include how the worker is compensated, whether the worker faces any risk of loss in the transaction, whether the company pays the worker’s business expenses, whether the company can withhold payment for non-performance, and whether your industry as a whole considers workers in similar positions as employees or independent contractors.
Failing to Train Supervisors Regarding Employment and Labor Laws
Employment laws prohibit employers from taking action against an employee for certain reasons, including discrimination on the basis of a protected characteristic such as race, religion, etc. Employees are also protected from retaliation for complaints of discrimination or illegal activity. It is vital that supervisors be trained to manage their employees in accordance with all applicable laws.
Failing to Use an Employee Handbook
An employee handbook informs employees about the employer’s values and policies, and facilitates compliance with employment and labor laws.
Failing to Properly Document Employee Job Performance
Proper documentation clearly establishes the employer’s expectations and where the employee failed to reach them. Written job descriptions and employee evaluations serve as training tools, performance measures and critical evidence in the event you have to terminate an employee.
Failing to Accommodate Disabled Workers
The law not only prohibits employers from discriminating against those with disabilities, it also imposes a duty on employers to "reasonably accommodate" their disabled employees, so they can perform essential job functions. Accommodations may include assistive devices, a modified work schedule or a restructuring of job duties.
Failing to Comply with Wage Payment and Notification Requirements
Many states require employers to pay their employees in a certain manner, and provide written notice of pay periods and amounts. Failure to comply can subject the company to penalties.
Failing to Obtain Releases from Terminated Employees
When firing an employee, companies should obtain a signed release from the employee, waiving the employee’s right to pursue a legal claim against the employer. Often, this release is signed in exchange for a severance payment.