Spending a Little Can Save You a Lot
By Christi R. Adams
Not only is January the time to close the books on the prior year, but it also is a great time for a compliance audit. The purpose of a compliance audit is to take stock of whether your company’s policies and procedures are up to date and implemented appropriately. A little upfront work and cost can save the company a lot of time and legal fees in the end.
The compliance audit doesn’t have to be expensive. The Department of Labor (DOL) has tips to help get you started its Web site (http://tinyurl.com/6d83u6e). To protect your audit information, enlist the help of your attorney, who can protect the information as attorney-client privileged.
What to Review
There are a number of federal laws that employers must follow. Although there also may be specific regulations for your company’s industry, a brief description of a few of the basic policies you may need to review are listed below.
- No Harassment Policy/Non-Discrimination Policy: Federal laws prohibit discrimination in employment decisions based on race, color, religion, sex, age, ethnic/national origin, disability, or veteran status. Your state and local government may have additional protected categories such as sexual orientation and gender identity. Your company should have a policy in place to ensure the workplace is free of discrimination and that employees know how to report any policy violations.
- I-9 Compliance: Your company should have a policy to ensure that it properly verifies the employees’ employment eligibility and compliance with anti-discrimination responsibilities under immigration laws. The company should review employer records for compliance with these obligations (Form I-9) (http://www.uscis.gov/files/form/i-9.pdf). The DOL’s Handbook for Employers (http://www.uscis.gov/files/form/m-274.pdf) outlines the required procedures for employers to follow when they are verifying the employment eligibility of all workers.
- FMLA: Your company should ensure that its medical leave policy is compliant with the FMLA. The FMLA provides certain protections for employees who are out of work for a serious health condition of themselves or their parents or children (the FMLA describes the familial relationship required to provide protection under the Act), or for the birth or adoption of a child.
- ADA: The ADA protects employees who either have a disability or are perceived to have a disability by requiring that the employer provide certain accommodations to assist the employee in the performance of his or her duties. Your company should ensure that its policies are in compliance with the ADA.
- Vacation and Leave Policies: The policies should ensure uniform treatment of leave for all employees, whether the leave is voluntary or involuntary.
Wrongful Hiring
By Sharon K. Mollman Elliott
We’ve all seen claims for wrongful termination, but one recent case takes a different twist: wrongful hiring. An employee who was laid off eight months after moving his family across the country to take a new job was awarded $1.9 million in damages when he convinced a jury that his new employer knowingly induced him to accept a job that did not exist (http://tinyurl.com/6awwgoo). The employee claimed the company was trying to entice potential buyers by making it seem by his hire that the company was further along in its development of a project than it was. The jury found the employer misrepresented to the employee how far along it was in developing the project for which the employee was hired, and the job he was supposed to do never developed. In the meantime, as technology changed his field, the employee’s skills fell behind, so that when his new employer laid him off, he had trouble finding work in the field.
A Minnesota statute (https://www.revisor.mn.gov/statutes/?id=181.64) prohibits companies from knowingly inducing employees to come to the state through false pretences, and the jury decided that was exactly what the employer had done: misrepresented the job to induce the employee to come to Minnesota. However, even companies outside of Minnesota should take note of this decision, since a common-law claim for fraudulent or negligent misrepresentation could lead to a similar result. So when creating a new position, make sure that the need for the job exists before hire, or at least that recruiters and interviewers understand the tentative nature of the position so that they do not mislead candidates about the opportunities and duties of the position.