Business Start-Up Tips from a Labor Lawyer

Advice to keep you in compliance

There are so many things you need to get right to build a profitable business with long term success. Avoiding legal problems in your HR department is something a Sacramento labor law attorney can help you with.

Start Out in Compliance

1. Commit to create/maintain a fair, honest, consistent and transparent workplace. Communicate with employees — the failure of communication is a major contributor to employee unhappiness and therefore employee complaints — which can easily morph into legal complaints of discrimination, and lawsuits. “Respect and compliance” (two easily remembered watchwords) in the workplace comes from the top down, so be a good role model and exemplar of fairness and probity.

2. You may not have a legal team, but you need to understand and abide by employment laws. Learn a little about the basic federal, state and local anti-discrimination and other laws affecting the workplace. Know at least what the many “protected categories” are, and, generally, what Title VII, the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”) prohibit; what “harassment” means and consists of; what you can and cannot ask in an interview; what constitutes “retaliation” and an “adverse action”; and what to do if an employee complains of discrimination or harassment. Know the difference between “employees” and “independent contractors,” as well as a little about the wage and hour elements of the Fair Labor Standards Act (“FLSA”), the Family Medical Leave Act (“FMLA”), and what OSHA does (know what OSHA stands for?).

3. Know who you hire. Don’t run afoul of the anti-discrimination laws noted above, or GINA (look it up!), or laws relating to, for example, credit and criminal record privacy, and health record confidentiality, but ask the right questions and check references and do some due diligence before you hire someone.

4. Keep adequate records. You’ll need to comply with local, state, and federal laws concerning vacation, paid leave, breaks, and overtime for your employees. Without a proper monitoring system, it can be difficult to determine if your employees are receiving proper pay when they’re not working or working additional hours. Create and enforce a system that ensures that all breaks and overtime is documented in writing. Avoid having employees hang around while not actively working. You can solve this problem by providing an employee break room or by requiring employees to leave the property during breaks.

5. A diverse workplace is ideal and generally a more satisfied and productive workplace. Consider this; one of your employees makes a complaint of sexual harassment against their manager. Or you get accused of discrimination on the basis of race, gender, disability status, or some other category. If you’re thinking this will never happen to you, think again. The U.S. Equal Opportunity Employment Commission received 91.503 charges  of workplace discrimination in 2016. And just a few months ago, ride-sharing startup Uber held an investigation into 215 harassment claims that resulted in 20 employees being fired. 

6. Always an important tip: Maintain a “zero-tolerance” anti-discrimination and anti-harassment policy in your company, and enforce it fairly and consistently. Make sure that this includes a procedure for reporting complaints of discrimination and harassment, and that the process to be followed if there is a complaint. Inform all employees as to where and to whom to go to register a complaint – provide the name of a person designated as an EEO officer to whom such complaints can be made. Treat all employee complaints seriously and confidentially (if requested to), and investigate all claims promptly and evenhandedly.

7. Keep your employee handbook up to date. An outdated employee handbook may make it difficult for employees to comply with HR expectations and processes. The employee handbook is your all-exclusive guide to your business’s policies, procedures, and legal obligations. Not only does an employee handbook outline all employee rights, it also states employer expectations in regards to everything from time off allotments to dress codes. Employee handbooks must comply with state and federal laws, which vary depending on the number of employees and type of organization. Your employee handbook should also include other essential information that could help back you up when it comes to termination, discrimination lawsuits, and employee performance. In addition to simply having an employee handbook, it’s important to have each employee sign an acknowledgement form stating that he or she has read and fully understands the documents. By maintaining a current and accessible handbook, your employees can focus on their work, rather than internal compliance.

8. Maintain good and complete records and document everything relevant in the workplace, such as employee performance and evaluations, problems and complaints, and any other matters that may be necessary down the road to support and justify disciplinary measures, termination, or reductions in force. This is important — if a complaint arises in the future this may provide you with a good defense – perhaps your only defense.

9. Make sure to conduct periodic and professionally-led training programs for all employees, as well as managers, in anti-discrimination, anti-harassment and anti-retaliation policies and practices. There are, indeed, many such professionals out there who do this – or ask an employment law expert.

10. Firing Without Due Process. In the world of reality TV, it might be OK just to point a finger at someone and say, “You’re fired.” But in the real world, that approach can get you in a whole lot of trouble.In many countries, employment legislation protects workers from unfair dismissal, and they can sue you if they feel they were treated unfairly. So it’s important to follow a clear, fair process if someone is not performing adequately in their job. That means giving several warnings over time, giving the employee a chance to improve, and documenting the process carefully from beginning to end.

11. If you can afford to (you will, eventually!), hire an experienced HR person or persons. As I have written before — they are worth their weight in gold — your gold! They know what you likely don’t, which may be all of the above.

12. Finally, if you cannot afford or justify hiring an in-house HR person just yet, make sure that you have a trained professional to whom you can turn who can identify an employment issue before it blows up. This person can be an attorney, or even an outside vendor who works with employers and knows the workplace and its peculiar issues.

List Created by Sacramento Top 10