In the midst of the holiday season, many of us spend time reflecting on the past year and identifying opportunities to improve ourselves in the one ahead. As you make your personal New Year’s resolutions, why not make some professional resolutions as well? A 2012 review and update of these 10 personnel policies will help manage employee expectations, limit company liability and ensure regulatory compliance.
Given the perennial nature of harassment issues, it may seem like a subject undeserving of more than a passing thought in 2012. However, it is quite likely that your prohibited harassment policy was adopted years ago and has not been updated since. The growth of social media has led to an explosion of harassment opportunities for employees, so you want to be sure your policy addresses this brave new world.
Your policy should clearly set forth the reporting procedure, which should include multiple avenues for reporting and should reflect the company’s current organizational structure. Effective policies also prohibit retaliation and clearly define what conduct is prohibited and what may constitute harassing or inappropriate behavior. Consider adding a specific reference to harassment via social media sites.
Finally, even the most effective policy can be useless if employees are not aware of it. Take the time to audit employee personnel files to ensure that each employee has acknowledged receipt of the prohibited harassment policy.
As with harassment, discrimination and equal employment opportunity issues might seem like old hat. Lawmakers, however, have been hard at work in recent years reevaluating and rethinking this area of the law, making it an important issue to address in 2012. The federal Genetic Information Non-Discrimination Act, which prohibits the use of genetic information in making employment decisions, was passed in 2008, with regulations following in 2010. Similarly, many states and localities have passed or are considering legislation prohibiting discrimination on the basis of sexual orientation, gender identity and expression and/or transgender status.
Your Family and Medical Leave Act policy should have been updated by now to reflect the 2009 revisions to the regulations. Excessive absenteeism results in unnecessary costs to the company, drains personnel resources and affects employee morale. For example, ensure that you are accurately tracking use of leave and obtaining sufficient medical information to determine whether employees are entitled to leave under federal or state law or pursuant to your disability policies. If you aren’t sure whether an employee’s need for leave is FMLA-qualifying, use the tools available under the FMLA to obtain second and third opinions, or clarification and authentication, as appropriate. Also, take advantage of the FMLA’s provisions for obtaining recertification. In addition, an employer now can require employees to follow the employer’s usual and customary call-out procedure when taking FMLA leave. Apply that policy uniformly among employees who call out for both FMLA and non-FMLA leave to avoid a discrimination claim.
Social media policies
As an HR professional, you likely are inundated on a daily basis with information regarding employee use of social media. That’s because the law surrounding employee use of social media is constantly evolving. For example, the National Labor Relations Board has taken an active role in scrutinizing employers’ social media policies to determine whether they infringe upon employees’ protected rights. If you do not have a policy addressing employee use of social media, resolve to develop and adopt one in 2012, and even if you already have a policy, consider reviewing it again in light of changing law.
An effective social networking or social media policy should establish parameters and expectations for employee use of social networking sites. Your policy should prohibit the disclosure of confidential or proprietary information related to your business or the business of a client, customer or business partner. It should also address copyright issues, including a requirement that employees respect copyright and fair use laws when it comes to the use of the name, trademarks, logos, identifying marks or copyright-protected material belonging to your company or any other entity.
Social networking policies also should strictly prohibit harassing or discriminatory comments or postings, and require employees to make clear that all postings are their own views or beliefs and not the views or beliefs of the employer.
Discipline policies and procedures
Chances are, discipline issues are on your mind constantly. Naturally, this issue should be on your 2012 resolution list. Discipline is a critical tool for an employer to address employee performance issues and serves as a basis for important employment-related decisions. How discipline was administered also becomes the central focus for defending against challenges to employment-related decisions, whether through a grievance procedure, a complaint filed with a government agency or a lawsuit. You should have a discipline policy that outlines prohibited conduct and establishes a procedure for levying discipline. More important, however, is ensuring that managers levy discipline as consistently and fairly as possible. After reviewing your policy, arrange training for managers in the New Year to remind them of the importance of following the discipline policy, applying the policy equitably and seeking guidance from human resources for close cases.
Misclassification can lead to liability on many fronts, including liability for unpaid payroll taxes, wages and overtime, liability for failing to provide benefits and liability under employment discrimination laws. Though avenues exist to limit liability, an employer that misclassifies independent contractors could find itself facing lawsuits, audits by government agencies and fines and penalties.
Conduct an audit of your independent contractors to ensure that they are classified correctly. Take a look at your workforce, and if independent contractors sit side-by-side with employees, performing the same or similar jobs, seriously consider whether those individuals are properly classified as contractors. An independent contractor usually works without supervision, possesses some skill or specialized knowledge and determines his or her own processes and methods for achieving the result requested by the company. While there are many tests for determining whether an individual is classified properly, the touchstone is control. The more control your organization exercises over the individual, the less likely he or she is an independent contractor.
In addition to reviewing the classification of individuals as independent contractors, audit your files for independent contractors to ensure that all proper paperwork is filed and maintained, such as IRS Form 1099, invoices, business licenses and contracts. These files should be kept separate from your employee personnel files. Review your independent contracting agreement to ensure that it adequately explains the nature of the relationship.
Another hotbed of litigation revolves around the classification of employees as exempt or non-exempt under the Fair Labor Standards Act and similar state laws. If you have not done so recently, audit your classification decisions to ensure that employees are properly classified. An effective audit starts with a review of a position’s job description to determine whether it meets one of the FLSA’s various exemptions.
The audit should not stop there, however. With the job description in hand, you should discuss the position with the manager who supervises the employees holding that position. From a legal perspective, this conversation is critical. Ask the manager to describe the major job duties of the position as they actually are performed by the employees. Review the job description again to see whether it measures up to reality. If you determine that a particular position may be misclassified, talk to an attorney to review your findings.
Not surprisingly, compensation issues also are a hot area of litigation. To help avoid being the latest defendant, take a look at your compensation policies and, in particular, your payroll procedures. For non-exempt employees, ensure that they are recording their time correctly. If you use a time clock that automatically deducts for unpaid meal breaks, make sure that managers are correctly adjusting time for missed meal breaks. In addition, if your non-exempt employees have access to a company-issued BlackBerry or other smart phone during non-working hours, ensure that you are track any work they do while off-duty and that you compensate them for that time.
For exempt employees, ensure that no improper salary deductions occur. An exempt employee’s salary may be subject to deductions only in certain circumstances, such as one-day deductions for absence for personal reasons other than sickness or disability, or for sickness or disability in full-day increments, pursuant to a bona fide sickness or disability policy. Audit your payroll records so that you are aware of any issues that need to be addressed, and train managers appropriately when issues are noted.
Workplace violence policies
Workplace violence continues to be an area of concern for many employers. Workplace violence is a broad concept that encompasses not just physical violence (which is actually quite rare and has declined in recent years), but also more subtle forms of aggressive conduct such as intimidation, bullying, fighting and harassment. Lawmakers have begun to recognize the detrimental effects of workplace bullying. A number of states have considered or are considering legislation aimed at preventing bullying in the workplace.
While it is important for an employer to have a workplace violence policy that is communicated to all employees, perhaps more critical is for an employer to be sensitive to the pressures, stress and emotion that employees may be experiencing, particularly in a slow economy. You cannot always predict the incidence of workplace violence, but potential warning signs include unexplained increases in absenteeism, withdrawal from coworkers and unusual reactions or outbursts at work. Being more observant may be particularly important to prevent potential workplace violence.
More and more employers are allowing employees to work remotely as employees demand flexibility and as technology allows for increased connectivity. Employees must understand that their home office is an extension of their work office, and they should treat it accordingly. Your policy should clearly define the expectations for the telecommuting position, such as expected hours of work and availability. For employees who will need equipment to perform their jobs remotely, consider whether the company will provide that equipment.
Also remember that the policies that apply in the office also apply to the home office. For example, occupational safety requirements extend to a home office, so your policy should include ergonomic standards and criteria for establishing and maintaining the physical space of the employee’s home office. It also is a good idea to have employees sign a written agreement acknowledging receipt of the telecommuting policy and agreeing to abide by the policy.
Kelly T. Kindig, Associate at Ballard Spahr Philadelphia office, can be reached at 215.864.8652 or KINDIGK@BALLARDSPAHR.COM
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