It’s hard to believe another year is coming to a close, but here we are. As part of my personal year-end celebration, I have prepared an informal ranking of the top mistakes I’ve tried to help clients avoid, correct, or defend in the past 12 months. I figured this might be a good “to do” list for Tennessee employers to take into 2019, in hopes of a lawsuit-free new year.
(10) Policy problems. Too often policy manuals are amended piecemeal over the years, becoming confusing and internally consistent. If you haven’t read your handbook from cover to cover in a couple years, you should do so. Make sure it all makes sense and that you are up to date on compliance issues and have the ink where it matters (more on wage and hour and less on dress codes, please).
(9) Applicant screening issues. Be sure you are aware of all applicable applicant screening laws, and avoid unlawful lines of questioning. However, be as detailed and thorough as the law allows you to be because a bad hire may be a future wrongful termination claim.
(8) Misclassification mishaps. Have you classified your independent contractors and overtime-exempt employees correctly? You sure? Really sure? Better check again.
(7) Wage and hour woes. You must be ever-vigilant in ensuring that nonexempt employees are recording all work time and understand they must never, ever, ever work off the clock.
(6) Mismanaging leave and attendance. Do your supervisors recognize a potential Family and Medical Leave Act (FMLA)-covered absence when they see one? Would your FMLA paperwork pass muster in an audit? Do you have standard FMLA paperwork, or are you just winging it? Leave and attendance issues turn into terminations, which often lead to lawsuits. This is definitely a high-priority item for 2019.
(5) ADA errors. Employers typically understand they may not discriminate against disabled employees under the Americans with Disabilities Act (ADA), but failure to grasp the nuances of the interactive process is one of the most common errors I see. You must grant reasonable accommodations to keep employees working. Exactly what that means depends on the situation and is often less than clear. But you still have to try.
(4) Poor or no written job description. Good written job descriptions have really helped me defend my clients over the years. I’ve also wished so hard, so many times, for something better than what I had to work with. Your job descriptions not only help set performance expectations and standards but also carry more legal ramifications than you might imagine. They are worth spending some quality time on in 2019.
(3) E-mail indiscretions. Are your supervisors chatting with one another over e-mail about personnel matters and thereby creating forever-searchable documents that you and your counsel would hate to have to hand over to opposing counsel in a lawsuit? We can answer that one for you: Yes, they are! Unless you have trained them what not to e-mail about. Which you probably haven’t. But you should.
(2) Knee-jerk terminations. Firing somebody is the best way to get in legal trouble, and not just for the termination itself. Terminated employees and their lawyers are very creative in spotting compliance issues of all kinds, and sometimes they like to invite the U.S. Department of Labor and other enforcement agencies to the party. So, before you fire someone, take a deep breath, make sure you are considering the big picture when assessing risk, and get it right. And “getting it right” almost always will include asking employees to tell their side of the story before pulling the trigger on a termination.
(1) Failure to train supervisors. So, you’ve recently trained your supervisors on anti-harassment and the impact of the #MeToo movement. Awesome! But guess what—there are about a million other ways even your most equality-enlightened and best-mannered supervisors can get you into trouble. See: every other item on this top 10 list.
Remember, an issue spotted is a lawsuit prevented, so make 2019 your year for general employment law compliance training aimed at your supervisory workforce.
This article was originally published in the December 1, 2018 issue of the Tennessee Employment Law Letter.
