Effective Employment Practices: 5 Steps Employers Can Take to Avoid Liability
By Will Jordan
Employers are faced with a confusing web of federal and state employment laws with which they must comply in order to avoid liability to job applicants and employees. And while it’s impossible for an employer to ensure that it will never face an employment-related lawsuit, there are some steps employers can take to minimize the likelihood of litigation and to maximize the chances of prevailing should litigation arise. Here are five tips:
- Have An Updated and Well-Written Employee Handbook (and Follow It!).
South Carolina is an at-will employment state. That means, absent a contract which specifies otherwise, employers can terminate employees for any reason (or for no reason at all) as long as the termination is not discriminatory. Some employers worry an employee handbook will be viewed as an employment contract and will change the at-will nature of the employment relationship. South Carolina law is clear, however, that as long as the employee handbook has a conspicuous disclaimer (i.e. “underlined capital letters on the first page of the document”), signed by the employee, the handbook will not create a contract of employment. S.C. Code Ann. § 41-1-110. A well-written employee handbook is a great way to tell your employees both what is expected of them and what they can expect in return. It gives you an opportunity to explain to your employees conduct you will not tolerate (e.g., discrimination, harassment) and how employees who feel they are subjected to such conduct should respond.
The caveat, of course, is that an employee handbook will do no good if you ignore it. In fact, having an employee handbook that you ignore may do more harm than having no handbook at all. If the handbook explains the manner by which employees should submit complaints and you readily ignore complaints that are filed in accordance with the handbook, you’re setting yourself up for a bad day in court. Make sure your handbook is up-to-date, and make sure you’re following it.
- Take Every Complaint Seriously.
Some employees just like to complain. And some of those complaints can seem ridiculous. But it’s important to take every complaint seriously, especially complaints that may relate to an employee’s alleged disability. This is particularly true in light of the very broad definition the ADA now gives to “disability” and an employer’s obligation to offer a reasonable accommodation to a qualified individual with a disability, unless doing so would cause undue hardship. The law envisions an interactive process in which the employee and employer communicate about the nature of the problem, how a disability is prompting the need for an accommodation, and what accommodations may be appropriate and available. Writing off an employee’s complaint or request for accommodation is a great way to find yourself on the losing end of a lawsuit.
- Write It Down.
Maybe you did everything right in responding to an employee’s complaint or request for accommodation. You took the issue seriously. You investigated the allegations. You interacted with the employee to determine a reasonable, and mutually-agreeable resolution. You disciplined or counseled any other employees who may have behaved improperly. But, you didn’t write anything down. Now, if you find yourself defending a lawsuit, you’ll be fighting an uphill battle to prove everything you did right. Don’t let that happen. Document the complaint. Document the investigation. Document the resolution. Document everything.
- Pay Special Attention to Wage and Hour Issues.
Failing to pay employees in accordance with the Fair Labor Standards Act can lead to civil actions and fines by the federal government, criminal prosecution by the United States Department of Justice, and individual or class action lawsuits by aggrieved employees. Unlike other federal employment laws, the FLSA applies to the vast majority of employers, regardless of the number of employees. Understand the rules for classifying employees as exempt or non-exempt and the requirements for calculating overtime pay. If you have questions or concerns, get some advice from an attorney on the front end.
- Train Your Supervisors.
In many ways, avoiding liability for employment practices begins with your supervisors. Devoting the time and money necessary to train these employees will pay off down the road. Train your supervisors on harassment, discrimination, retaliation, safety, and wage and hour issues. Help your supervisors understand what not to ask during a job interview and how best to respond to employee complaints. And train your supervisors on effective management techniques. Employees who are managed well tend to be happy, and happy employees usually don’t sue their employers.