Helpful Legal Hints for Employers

A lot of HR departments have trouble with some basic legal issues.  TheWashington Post recently wrote an article for small businesses on how to handle some common “HR nightmares.”  The article lists the following as common issues employers tackle:

• Misclassifying Workers
• Overtime
• Breaks
• Firing Procedures
• Discrimination and Harassment

Below are some suggestions on how to handle such issues:

Am I Dealing With an Employee or Independent Contractor?

It is very important for employers to understand the difference between an employee and an independent contractor.  Basically, if an individual has control over their hours, working instruments, and method of work they are an independent contractor.  If an employer sets the hours, provides instruments and strategies procedures/working methods, an employer is dealing with an employee.  There are numerous lawsuits every year because employers have violated labor laws by treating an employee as an independent contractor, or vice versa.

The best thing to do is to read the labor law of your state, extract the definitions set forth for “employee” and “independent contractor,” and refer to it before classifying an employee.  Such small efforts can easily avoid later litigation. 

Overtime–To Pay or Not to Pay?

Since these laws vary state to state, it is important for every employer and/or HR department to understand its state laws on what is considered overtime, and when to pay it.  There are also tricky nuances.  For instance, California views an employee working over eight hours per day as overtime.  However, over forty hours per week is also considered overtime.  Many lawsuits have arisen because employees, who have wanted longer weekends, agreed to work over eight hours a day Monday through Thursday, in order to have Friday off.  Although the amount worked totaled forty hours per week, since employees were working over eight hours a day, labor laws required them to be paid for overtime.

A lesson to take from this is that when reading laws, pay attention to conjunctions such as “and” or “or,” because they hint towards small nuances, which, if not followed, can lead to litigation. 

Breaks–Employees Need to Step Away from Their Work.  It is the law!

It is very important for workers to take proper breaks.  Some workers choose to eat lunch at their desks or skip break because “they have too much to do” or are “almost finished with something.”  Sometimes, employers themselves are in meetings with employees, these meetings run long, and break time passes.  Employers often then encourage everyone to “get back to work” rather than instruct them to go out and make up their break time.  Such behavior from both employees and employers can get employers into trouble.  Why?  Later on, these same employees may claim to have been working diligently during their allotted break times, bringing employers into trouble for violation of labor laws.

What to do?  A lot of companies now have break rooms where no work can be conducted, or require workers to leave the premises during their breaks.  This is a great idea.  Overall, employers need to be proactive and ensure that employees take breaks.  If in a meeting, employers should be conscious and either announce a break during the meeting, or instruct employees to take their break after the meeting is over.  Otherwise, employers should create break rooms and/or have signs up that require employees to physically leave the office area during allotted break times. 

Firing Procedures

The major issue here is that employers establish firing procedures in the company handbook, and do not follow them.  This gives employment lawyers ample ammunition against you in court.  For instance, perhaps the company handbook will state that there will be a review process with the Board of Directors before firing someone.  However, that was not followed when an employee was terminated.  This can get employers into trouble.

To stay away from litigation, follow the procedure your company has established when firing someone.

Discrimination and Harassment–What Employers Think It is and What the Law Says It Is May Be Different

Most of the time, discrimination and harassment are not obvious.  Small comments on appearances guised as “compliments,” or harsh words with multiple meanings during a heated conversation can be discrimination or harassment.  People often associate extreme cases with these concepts; however discrimination and/or harassment instances can be subtle acts in workplace communication.  Many HR departments and employers do not understand this.

A great solution is to first understand the statutory meaning of these two terms.  Then, along with the usual description and “no tolerance policy” written in most corporate handbooks, it is a great idea to have a workshop for employees and management personnel on discrimination and harassment in the work place.  This not only will educate one’s work force, but will also make the company’s “no tolerance” policy clear to everyone.  Such small efforts are a great way to avoid any potential lawsuits. 

Of course there are more solutions to tackle these problems.  Employers should educate themselves and their HR departments, and have lengthy discussions with the corporate attorney(s) to ensure that the company is protecting itself from any potential lawsuits.   This article has some suggestions, and meeting with your corporate attorney will definitely yield more!