Most people think that employment discrimination and sexual harassment are not problems in Utah. Without the proper policies and procedures, however, and without proactively ensuring that harassment and discrimination do not occur, it can be a problem anywhere. Dana Ball has spent years focusing on employment issues which is a huge benefit to her small business clients.
Business owners can build goodwill and limit liability risk with: Hiring, Onboarding, Evaluating, and Terminating Employees. Every business is different and generic forms will set you up to fail when a claim is filed against you by an employee. It’s critical that the forms you use with employees are tailored to your type of business and your management style. We have employment packages for small businesses that are tailored for your business.
Keep your on-boarding process organized and timely.With all the documentation required to bringing on a new employee, remember to have an attorney help you. Documentation of recruiting and hiring activities is often used as evidence during litigation in-discrimination, negligent hiring, and other employment-related claims. Depending on the contents of the documentation, it can be useful in defending those claims. The employer’s documentation should cover and include:
- A written job description listing essential job requirements.
- All decisions made by the employer regarding applicants, including reasons for:
- selecting applicants to interview;
- rejecting specific applicants; and
- making an offer to an applicant.
We offer a great package for small businesses that includes on-boarding documentation tailored to your business and management style.
Prepare Ahead of Time. Once you have decided to hire a new employee, you should create specific parameters for the open position BEFORE you begin the hiring process! First, prepare a written job description. Then, determine whether the position should be classified as exempt or nonexempt from overtime pay requirements. Finally, you should set the salary range and benefits for the position.
Use the Same Job Application. The key to avoiding a discrimination claim is to use the same employment application and other pre-employment forms for all applicantsfor a particular position or job category.
Prepare for Interviews. Standardize the interview process to ensure consistency.Review the completed applications in advance of the interviews. Use theapplications to assess skills and background and ask for clarification if needed. Ensure that each interviewer fully understands:
- the job duties and responsibilities;
- the essential functions of the job;
- the work an employee in the same position (or the departing employee in that position)actually does on a day-to-day basis;
- the legal risk associated with certain questions and disclosures; and
- company policies relevant to hiring, including its equal employment opportunity andnepotism.
Evaluating Employees Performance
Don’t let your workplace BE the next headline.Train your workforce about what is – and isn’t – acceptable in your office. Given the daily headlines about bad workplace behavior, isn’t it, time to really make training count? Given the ease with which workplace claims can be asserted, it makes better sense to implement truly mindful training and performance evaluations that goes to the core of preventing workplace behaviors that lead to claims in the first place. Employment law is constantly under review by the government in response to the demands of both employers and employees. We include several trainings as part of the packages we have for employers.Send us a message to incorporate the trainings Dana Ball will handle for your small business.
Policies and Procedures. Ensure all policies and procedures governing employee performance are:
- Tailored to specific business needs and circumstances. Downloading forms online, using the forms offered by a payroll company, or using old and out-dated handbooksis a lawsuit waiting to happen.
- Clear. Use plain language and avoid legal jargon in employee handbooks and policies. Employees cannot follow rules they do not understand.
- Simple. Avoid excess detail. Numerous details create too many issues for argument. Simple policy language allows employers to exercise discretion.
- Reasonable. Use common sense when evaluating whether policies are fair. Fairness is a primary consideration for juries and judges evaluating legal claims brought by disgruntled employees.
- Realistic and relevant. Do not impose unrealistic or irrelevant expectations on employees. Employers should use common sense, and legal advice, to create functional and realistic policy expectations for their workforce.
- Accessible. You must provide employees with copies of written policies. Employers should be able to demonstrate employee receipt and acknowledgment of policies with an authorization signed by the employee. You should review policies with employees at a minimum once a year.
- Professional. Avoid excessively casual or overly friendly language in policies. An unprofessional tone may result in policies being taken less seriously by employees.
- Supported by a business purpose. Connect every policy and procedure to a legitimate business justification.
- Consistent with one another. Review employment policies as a whole to ensure they are consistent with one another.
- Current. Failure to comply with new or amended laws may create additional exposure for employee litigation.
- Consistent with at-will employment status. Disciplinary policies that allow for discipline only under specific circumstances or through progressively rigorous disciplinary steps may inadvertently modify at-will employment status.
- In line with contract requirements. Employee discipline involving employees working under an employment contract must be consistent with their contract terms. Review employment contracts for these employees before imposing discipline.
- Respectful of protected activity. Employers must not maintain policies that impose employee discipline for protected activities.
Dana Ball will customize your policies and procedures to fit your business needs and your management style to ensure legal compliance, so contact us today!
When An Employee Leaves
Ensure employees who resign submit resignation notice in writing. These documentscan be helpful if an employee later disputes that his or her termination was voluntary. Document the reasons for the termination. If an employee is involuntarily terminated,document the reasons for the termination in an objective tone and ensure that there aresufficient supporting documents. To protect against theft of confidential and trade secret information, misuse of the employer’s systems, and other security breaches, employers should revoke the departing employee’s access to the employer’s systems, including:email;voicemail;passwords; andremote log-ins.
Ensure Employee Returns Employer Property and Records. Require the departing employee to return all employer property and records, such as: desktop or laptop computers; computer peripherals and accessories, such as external hard drives, speakers, fax; cell phones and other electronic communication devices; building key cards and passes; electronic key fobs; documents and files in any format, including electronic data; and corporate credit cards.
Proper documentation and implementation of an employer’s policies and procedures are central to an employer’s success in avoiding or defending against wrongful termination claims. Contact us today to get your business HR Compliant!
Assess Whether Termination Is Appropriate. In evaluating whether to terminate an employee, the employer should consider whether:
- Termination is the most appropriate course of action and in the best interests of the employer. For example, the employer may discover that the employee’s supervisor has ahistory of conflict and is the actual problem.
- The possible adverse publicity from the termination outweighs the consequences ofcontinuing to employ the employee.
- The employer bears any responsibility for failing to appropriately prevent the conditions oraddress the circumstances that led to the termination proposal.
- The employer has given the employee an opportunity to address any problems that may have led to the termination proposal.
- The termination will adversely impact employee morale or employer credibility within theorganization.
- In its treatment of the employee, the employer has properly documented and implementedits employment policies and procedures.
To save money, many people rely on their payroll company for HR advice or they use online legal services rather than a lawyer. Unfortunately, a significant drawback to these services is that you cannot get experienced legal advice. Each business is unique and no one but an experienced business lawyer can provide you with the legal advice you need to tailor the right course of action for your situation. Part of making sure that clients have the right legal protections in place involves getting to know their businesses, and establishing a valuable relationship for the life of your business