What other areas can trigger lawsuits?
Employers not following payroll rules to the letter are opening themselves up to complaints, administrative hearings and class-action lawsuits. Those who pay employees illegally, deny meal and rest breaks, or deny overtime pay create ripe conditions for lawsuits. Most employers have no idea how complex payroll law has become, but failure to know and comply with the law is no defense.
Some feel their business issues override legal requirements. They’ll say, ‘I know that person is entitled to overtime, but I can’t afford to pay it so I won’t.’ No matter the circumstances, you cannot fail to pay people overtime, even if the employee agrees. The court is always going to say, ‘Pay the overtime, pay the interest, pay the penalties and pay the taxes.’
How can punitive termination result in a lawsuit?
Sometimes employers or supervisors get frustrated or angry with an employee’s behavior or performance and engage in punitive terminations. The employee not only loses his job but is demeaned and embarrassed on the way out. Employees treated poorly at termination may decide to punish the employer with a claim or suit, where they might not have done so if they received some respect and consideration. Exit meetings are not the time to recount a history of job or personal failure; they are the time to treat the employee as you would want to be treated in similar circumstances.
What do employers need to know about emerging issues regarding the Americans with Disability Act and returning veterans?
These are two areas of labor law likely to show increased legal activity due to significant recent changes. Failure to accommodate a disabled worker has always been the source of legal claims. With the newly expanded Americans with Disabilities Act, many more medical and mental health conditions have been identified as disabilities; for example, anyone with diabetes or bipolar disorder is now considered disabled. Military personnel returning to the civilian work force also have significant added protections related to pay, guaranteed no-dismissal periods and, of course, accommodations if they are disabled. We do not know how these new areas of labor law will play out, but they are sure to be a significant element of employee management.
How important is documentation when claims or suits occur?
Documentation is critical whether the claim is genuine or not. If you investigated a harassment claim but didn’t generate an appropriate report, you can’t prove you investigated. If you don’t have detailed documentation on a time card signed by a nonexempt employee, you’re not going to be able to make a believable case that you gave the employee lunch breaks.
Important regulatory policies should be discussed at hire, be distributed in hiring and orientation documents, be in your employee handbook, and in some cases be posted as policy reminders. Supervisors need to be trained in compliance practices, and that training must be documented, as well. You need multiple layers to show you had the intent to comply and made the actual effort to do so. That way, you have a credible body of evidence that often deters an attorney from taking an employee’s case and definitely will support your defense.
Peggy Pargoff, PHR, is senior vice president at ManagEase Inc. Reach her at [email protected] or (714) 378-0800.