Courts, following the lead of the U.S. Supreme Court in holding employers liable for their supervisors' actions unless the complaining employee(s) fail to follow the employer's complaint procedures. In light of the courts' consistent position on this topic, creation and implementation of policies and procedures for dealing with reported sexual harassment is critical. Once an effective policy is in place, all supervisors must be thoroughly trained on the policies and procedures.
-Do your policies past muster?-Are your supervisors adequately trained and understand the procedures?
-Does your staff understand and use the procedures?
2. Failing to pay overtime to nonexempt employees!
Many employers simply pay their employees a fixed salary regardless of the number of hours worked and whether they are subject to wage and hour laws. Unless the employee meets a specific administrative, executive or professional exemption from wage and hour law, every hour worked in excess of 40 hours in a week must be paid at time and a half their regular hourly pay.
-Have you properly classified all your employees to determine if they meet the exception?
-Are all of your decisions regarding exemptions properly documented to withstand judicial review?
-Has your staff developed accurate job descriptions that will support an exception classification?
3. Failing to take and document disciplinary actions!
Often, supervisors, wishing to not appear to be the bad guy, hate to write up employees. Then, when the company can no longer tolerate unsatisfactory performances, the files will not justify the grounds for discipline or discharge. If the employer's records cannot clearly establish justification for its action, the employer is wide open to lawsuits.
-Are all disciplinary actions documented?
-Are the disciplinary actions applied consistently to employees for the same behavior?
-Are the disciplinary actions maintained in the employees' official personnel file?
4. Failing to quickly discharge poor performers!
Traditionally, employers are advised to use progressively discipline employees and give "one more" warning, instead of given one to few. Unfortunately, a failure to act is as dangerous as overreacting. Retaining long term employees despite poor attendance records, multiple infractions and even more than one "final" warning in their file can cause you tremendous trouble. These long term employees most often sue when they are finally terminated.
-Does the employer have a consistent policy for when and how terminations should be handled?
-Are supervisors regularly trained in the termination policies?
-Are employee records and files considered every time termination of employees is being considered?
5. When conducting a layoff of a group of employees, failing properly evaluate any possible disparate impact on a protected group based on age, sex, race, national origin, religion or disability!
By failing to verify that the group being laid off does not contain a disproportionately high percentage of members of a protected class, employers are subject to being sued in a class action for discrimination.
-Are decisions regarding who will be laid off based solely on objective criteria?
-Do all the records and files support the use of appropriately objective selection criteria?
