HUMAN RESOURCES CONSIDERATIONS. November 20, 2008

Transcription

1 HUMAN RESOURCES CONSIDERATIONS November 20, 2008

2 Preliminary Note The topics covered today are generally addressed in Entrepreneurship: How to Start and Operate a Small Business, published by the National Foundation for Teaching Entrepreneurship, Inc. (NFTE). This presentation has been designed with the NFTE curriculum in mind, and is intended to provide additional information with respect to entrepreneurship and human resources issues for a growing business. 2

3 1. Beginning the Employment Relationship Have employees fill out and sign employment applications Conduct a criminal background check before hiring an employee (with appropriate releases) Check employee references 3

4 1. Beginning the Employment Relationship State in writing in an offer letter, employment application, or employee handbook that the employee is employed at will State in writing the employees salary or hourly rate and benefits (including health, vacation, sick leave, etc.) Do not pay employees under the table or in cash 4

5 2. Record Keeping Keep a separate personnel file for each employee Limit access to those files Keep any medical information separate from personnel files Make sure medical information is secure and not accessible 5

6 3. Harassment Issues What categories do you think are protected under the law? Hint, there are at least 10 can you come up with them all? 6

7 3. Harassment Issues Discrimination/harassment is prohibited based on categories covered by state and federal law including: - race, color, creed - national origin, ancestry - age - gender - religion - disability - height - weight - familial or marital status - Veteran s status 7

8 3. Harassment Issues No company can afford to overlook or tolerate harassment, especially by supervisors Have a zero tolerance policy Even little things can qualify as harassment 8

9 3. Harassment Issues Examples of harassment? Sam teases his co-worker Julie about eating yet another hamburger and fries at lunch and tells her he didn t think it would be possible, but she is going to get even heavier Yes? No? Sam asks Julie if she can recommend any good restaurants? Yes? No? 9

10 3. Harassment Issues Examples of harassment? Julie asks Bob on a date, every day, of every week, for months on end. He says no every time and asks her to stop asking him on dates. Yes? No? Julie asks Bob once if he wants to grab lunch? Yes? No? 10

11 3. Harassment Issues A company can avoid liability by showing: - It took reasonable care to prevent harassment Training Develop a written no-harassment/no discrimination policy and make sure it's distributed to employees, e.g., with their paychecks, and visibly posted in the workplace. It has a clear complaint procedure A prompt, thorough investigation and effective remedial action was undertaken When investigating, make sure to talk to all the players before reaching a conclusion or communicating any decision to the employee 11

12 4. Termination Without Prior Counseling The Problem: Managers are in a hurry to terminate poor performers They do not want to wait for counseling, warnings, documentation because the business can t wait This is a huge risk. Juries will perceive this as unfair 12

13 4. Termination Without Prior Counseling Evaluation of risk factors - High level employees - Those with employment contracts - Employees in protected classes age, sex, race, disability, etc. - Long-service employees with good records - Terminations for unusual reasons theft, dishonesty, harassment, personality 13

14 4. Termination Without Prior Counseling Risky? Long time employee is late to work once and is terminated? Yes? No? Termination of long time employee who has been counseled repeatedly about being late and was told, just a week ago, that one more tardy would result in termination? Yes? No? 14

15 4. Termination Without Prior Counseling Advice: Wait or be willing to fight (and pay attorney fees) - Follow progressive discipline in the employment handbook - Conduct regular, objective performance reviews - Tell the employee in writing that his/her performance is unacceptable, and that further problems will result in termination - Use last chance agreements 15

16 5. Lack of Fairness Most employment cases are tried before juries Even when employment is at will juries want an employer to have good reasons for its employment decisions Juries expect the employer to have good reasons for its employment decisions Juries expect the employer to treat employees with respect and dignity 16

17 6. , Voic , and the Internet Numerous employment law issues arise from the use and misuse of computers and - Defamation - Harassment - Evidence of culture - Invasion of privacy - Protected concerted activity 17

18 6. , Voic , and the Internet , voic and internet use policies are a must Policies should include: - Statement that the systems belong to the company - No expectation of privacy - Incorporates the no harassment policy - Company right, but not duty, to monitor 18

19 7. Terminating Employees Who Have Medical Restrictions The problem: Managers are frustrated with dealing with employees who have medical restrictions - Hour or work restrictions - Lifting or bending restrictions - Standing or sitting restrictions - Repetitive motion restrictions 19

20 7. Terminating Employees Who Have Medical Restrictions Not every restriction is related to a medical condition protected under the law, but many are Don t rush to lay off or terminate Make sure the company goes through a thorough, documented accommodation process before it considers adverse action 20

21 7. Terminating Employees Who Have Medical Restrictions For example, you have opened a dog washing business and you hire Mark to work at the front desk. A few weeks later, he tells you he can t sit for more than one hour at a time. What do you do? 21

22 8. Wage and Hour Violations Basic Rule: Non-exempt employees must be paid for one and one-half times their regular rate for all hours worked over 40 per workweek - Exempt employees are executive, administrative or professional employees that meet the FLSA requirements - Payment on a salary basis does not determine whether an employee is exempt from overtime pay 22

23 8. Wage and Hour Violations Exempt status - There are very specific requirements to be exempt (from overtime) - The company must comply with both federal law and state law - If in doubt about a classification, talk to an attorney or your HR person - In general, unless the person exercises independent judgment and discretion, be skeptical whether they are exempt 23

24 8. Wage and Hour Violations Lunch Period - For a non-exempt employee, all of the following conditions must be satisfied if lunch breaks are to be unpaid: - Lunch period is at least 30 minutes - Employee must be relieved of all duties - Employee must be free to leave his/her post 24

25 8. Wage and Hour Violations Should the following employee be compensated for her lunch period? - Sally is an administrative assistant in quality control. She chooses to sit at her desk during her 30 minute lunch period. She sometimes answers her boss telephone and sometimes is asked to perform miscellaneous duties that only take several minutes 25

26 8. Wage and Hour Violations Meetings - Generally, if non-exempt employees attend company sponsored meetings and training programs, that time is compensable unless: Attendance is outside the employee s regular working hours; and Attendance is voluntary; and The course or meeting is not directly related to the employee s job; and Employee does not perform any productive work during such attendance 26

27 8. Wage and Hour Violations Should the following employee be compensated for this time? - Non-exempt employees volunteer to help with a blood drive that is taking place at the company during their non-scheduled work hours 27

28 9. Retaliation Claims The problem: More and more retaliation claims are being filed - The number of EEOC charges alleging retaliation have doubled in recent years For example, They fired me because... - I called OSHA - I suffered a Workers Compensation injury - I testified at an unemployment hearing - I was a whistleblower - I talked to my co-worker s attorney 28

29 9. Retaliation Claims The solution: - A strong policy against retaliation - Train all supervisors regarding retaliation - Make sure co-workers know the company will not tolerate retaliation - Provide effective employee complaint resolution mechanisms - Disseminate employee complaint information on a need-toknow basis only - Carefully review any adverse action against employee involved in complaints 29

30 10. Defamation Claims The problem: Turning an otherwise defensible decision into a lawsuit The Solution: - Discuss termination decisions only on a need-toknow basis - Allow only one company spokesperson (HR) for purposes of references Reference policy Personal references? 30

31 Questions and Answers 31