An Employment-law Checklist
The New Year Is the Perfect Time for an Audit of Your Practices
By SARAH G. TORRES, Esq. and KARINA L. SCHRENGOHST, Esq.
As the new year approaches, employers would be wise to include in their resolutions efforts to ensure compliance with the myriad employment laws affecting their business, including those related to sick leave, disability discrimination, sexual harassment, and wage-and-hour issues.
To accomplish this, employers can begin by conducting an internal audit of their employment practices with the assistance of employment counsel, including looking at their employee handbook and other policies and job descriptions, as well as planning supervisor training.
Employee Handbook and Policy Reviews
Is your employee handbook up to date? Employers should consider having their employee handbook and other policies reviewed on an annual basis by employment-law counsel to ensure they are compliant with state and federal law and recent National Labor Relations Board (NLRB) decisions. For instance, just this month, the NLRB issued a decision permitting employees to use company e-mail accounts on their own time for non-business purposes, including discussing union organizing and work grievances.
Employers must be aware that these communications are protected in both union and non-union workplaces. Accordingly, employers may need to revise their computer-usage policies to comply with this decision.
Likewise, many Massachusetts employers will need to revise their current paid-time-off policies or create sick-time policies to comply with new sick-leave legislation that will go into effect on July 1, 2015. Under this new law, employers with 11 or more employees must provide up to 40 hours of paid sick time per calendar year. Employers with fewer than 11 employees must provide up to 40 hours of unpaid sick time per calendar year.
In addition, some Massachusetts employers with 50 or more employees will need to create policies or amend their employee handbooks to incorporate a domestic-violence-leave policy, if they have not done so already. This past summer, Massachusetts enacted a law that requires these employers to provide up to 15 days of leave during a 12-month period to employees who are victims of domestic abuse or who have a qualifying family member who is a victim, and to notify their employees of their rights and responsibilities under the law. The attorney general recently suggested that employers can meet the notice requirement under the law by including a provision in their employee handbook.
Also, employers with six or more employees are reminded that Massachusetts law requires annual distribution of your sexual-harassment policy.
Training for Managers and Supervisors
Do you offer your managers and supervisors regular training?
Creating or revising workplace policies to comply with new laws and regulations is only one preventive step. The next step is training managers and supervisors to ensure they understand these policies and their responsibilities under these policies, which is equally crucial. Employers should consider scheduling training for their management personnel on employment-law topics such as sick and domestic leave laws and the new NLRB decision related to e-mail communications, as well as refreshers on topics such as disability discrimination, sexual harassment, and wage-and-hour issues.
Many employment issues that eventually evolve into litigation stem from actions or inactions of managers or supervisors. Employers should regularly conduct trainings to give these key employees the knowledge and skills required to enable them to properly handle situations as they arise.
Review, Update, and Revise Job Descriptions
Do your job descriptions accurately reflect your employees’ actual job duties?
Job descriptions can be used as a basis for interviewing candidates, orienting a new employee, and evaluating job performance. In addition, an accurate job description listing the essential functions of a position will assist you when faced with requests for accommodations under the Americans with Disabilities Act. Sending an accurate job description to an employee’s medical provider will help you determine whether an employee is able to return to his or her position and what, if any, accommodations may be necessary.
An accurate job description with a detailed list of the essential functions of a position can also assist you with determining whether an employee is exempt from overtime pay under the Fair Labor Standards Act. This is especially important because the Department of Labor (DOL) announced this year that it will be reviewing these overtime exemptions and will likely be revising their regulations in 2015. Compliance in this area is particularly important because an employer who has been found to have misclassified an employee as exempt can be subject to significant penalties as a result of a DOL audit.
The cost of defending expensive litigation far exceeds the investment in taking proactive, preventive steps to reduce the risk of litigation. Therefore, employers should consider conducting an internal audit at the beginning of the New Year.
Sarah G. Torres, Esq. and Karina L. Schrengohst, Esq. are attorneys at Royal LLP, a woman-owned, boutique, management-side labor and employment law firm. Royal LLP is a certified women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]; [email protected]