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Ten Achievable Employment Goals for Employers in 2012

In the spirit of New Year’s resolutions, below is a list of 10 resolutions that employers should plan to keep this year. Unlike many daunting wish lists, these goals actually are achievable, and will yield significant benefits.

1. Develop or Update Employee Handbooks.

The old saw about “getting what you pay for” applies with special significance to employers that attempt to utilize the “free” handbooks of friends or those found on the internet. Handbooks provide many benefits for employers, including outlining the “rules of the road” for employees; setting forth the organization’s mission; helping to establish the bases for legal defenses should claims be filed; and satisfying legal requirements (in the case of, for example, FMLA). Handbooks should be updated regularly, and should be revised, among other things, to include a computer usage policy; an expansion of EEO and anti-harassment policies to include a reference to the protections provided by the recently enacted Veterans Opportunity to Work to Hire Heroes Act of 2011 (“VOW Act”); and a zero tolerance for violence policy.

2. Create Social Media Policies.

The use and misuse of social media in the workplace is rampant, and stands to only increase. Employers need to have appropriate and lawful social media policies that set forth when and under what circumstances social media can be used, how it may be used, and the consequences for misuse.

3. Update Job Descriptions.

Job descriptions serve as the template by which hiring decisions and hiring needs can and should be assessed. They provide the foundation for outside agencies to investigate ADA claims, as they define the “essential functions” of a position. They also provide an obvious and natural source for evaluating employees. Perhaps most importantly, job descriptions, if properly crafted, serve to define the expectations between employees and employers and, in so doing, generally serve to facilitate employment relationships starting on a positive note.

4.  Analyze Employees' Exempt/Non-exempt Status.

Wage hour claims are skyrocketing. These claims frequently include allegations that employers have improperly characterized non-exempt employees as exempt, and routinely seek tens of thousands of dollars in damages, interest, penalties, and other relief. Employers should evaluate all positions to make sure that they are properly characterized as exempt or non-exempt, and work with counsel if adjustments and changes need to be made.

5. Determine Whether Individuals Have Been Mischaracterized as Independent Contractors.

The mischaracterization by employers of individuals as independent contractors is an extremely high priority for enforcement agencies, both at the federal and state levels. Governmental agencies routinely are conducting audits of employers to ensure that individuals are being properly characterized as employees or independent contractors. Mischaracterization can result in thousands of dollars in damages, fines, and penalties and, in certain instances, even criminal penalties.

6. Train Managers on Employment Basics.

One of the worst kept secrets in the workplace is that supervisors often are extremely reluctant to acknowledge that they simply do not know how to effectively manage employees. This leads to a variety of problems, including a failure to communicate with the Human Resources Department and the management team about personnel issues. This, in turn, plants the seeds for potential retaliation claims if adverse employment actions are taken when individuals who make those decisions are not aware of complaints that employees may have made about workplace conditions. Moreover, managers who do not properly evaluate employees allow workplace performance issues to continue unabated, which is almost always detrimental to the employee and the organization. Employers should commit to training managers on best practices for improving hiring decisions; addressing performance issues; improving retention levels; and recognizing signs of mistreatment, (including possible harassment) and handling such incidents when they occur.

7. Revise Commission and Bonus Plans.

The turbulent economic environment has prompted employers to rethink compensation packages to include incentive compensation, including bonuses and commissions. Far too often, employers fail to clearly and carefully define when and under what circumstances a bonus or commission is earned, and when it is due to be paid. In so doing, employers unwittingly subject themselves to significant wage hour claims and legal exposure, as well as to serious employee morale problems.

8. Create or Update Restrictive Agreements.

As is the case with handbooks, employers who borrow non-compete agreements and other types of restrictive agreements from friends or take them off the internet, generally get what they pay for. Restrictive agreements (which can include non-competition language, non-solicitation language of customers and/or employees, and confidentiality language) need to be appropriately tailored to legitimate business needs and should not unduly restrict the future earning capabilities of employees. Because state laws often differ with respect to the nature and extent of acceptable restrictions, and because this is a fluid area of the law, the agreements need to be evaluated and updated regularly, particularly if employers are opening new offices in new locations, and/or are having employees work in new locations.

9. Assess Insurance Issues.

Many commercial insurance policies do not include coverage for discrimination claims because they are considered to be intentional acts. Employment Practice Liability Insurance (EPLI) was developed to fill this void. Employers should carefully consider, with the assistance of a knowledgeable broker, whether and to what extent an EPLI policy makes sense. Obviously, the devil is in the details in terms of determining, among other things, what incidents will be covered; who has the right to select counsel; and who has the right to determine when and under what circumstances settlement can occur.

10. Revise Interview and Reference Questions.

Increasingly, social scientists and others are concluding that one of the best predictors of success in the work place is not IQ, but rather EQ (“emotional intelligence”, a term coined by Daniel Goleman) years ago. More to this point, this research is yielding very interesting studies about the fact that characteristics such as “grit” can have a profound impact on whether an individual will be successful in the workplace. Employers should create and update their list of interview and reference questions to try to elicit information about an individual’s grit, commitment to professional and personal growth, curiosity, willingness to learn new ideas and concepts, drive, and commitment to proactivity in their duties. Employers that take these relatively simple steps have an excellent chance to improve their hiring decisions and also to improve the likelihood of retaining valuable employees.

 

Marc Engel is an employment and litigation attorney at Lerch, Early & Brewer in Bethesda, Maryland who advises in-house counsel, business executives and managers on a variety of employment issues and litigation avoidance strategies.  For information on implementing some or all of these resolutions, contact Marc at (301) 657-0184 or mrengel@lerchearly.com.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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