Litigation Prevention Tool:
Self Auditing Your Employment Practices
With employment lawsuits on the rise, employers are wise to invest in internal reviews of their employment practices. Self audits allow employers to detect and correct potential legal issues before they develop into expensive litigation or create adverse publicity. The costs associated with an internal review will be minimal in comparison to potential litigation costs or penalties that might arise out of a government audit revealing noncompliance with federal or state laws.
What should the employer review? Here is a beginning checklist:
- Handbooks, Policies And Procedures
- Hiring Procedures
- Job Descriptions
- Management Trainings
- Employee Evaluations
- Internal Investigations
- Harassment Policies
- Wage And Hour Procedures
- Personnel Files
- Required Postings
- Record Retention
- Federal And State Leave Laws
- Disciplinary Actions
- Termination Procedures
An annual review of the employee handbook is important to be sure it is in compliance with new laws as well as changes within the company. Having all employees read the handbook once a year is a good idea. This is especially true for managers whose job it is to enforce the policies. New policies should indicate their effective date.
Employers should review their applications to confirm that only job related questions are asked and that questions are tailored to each particular job. Interviewers should be trained to know which questions are legal, how to document the interview, and how long to retain interview notes. Using the same written questions for all applicants provides uniformity in the interview process.
Applications, job advertisements, job descriptions, and interview questions should be reviewed for compliance with the Americans with Disabilities Act and other discrimination laws. Private nonunion employers will want to include a statement affirming the “at will” employment relationship in applications, job offer letters and handbooks.
Applications should include a certification verifying that all information provided in the application is true and accurate and that failure to provide accurate information, either through omission or misrepresentation, will be grounds for termination. Applications should include information about pre-employment drug testing, documentation necessary for background checks, and an authorization allowing verification of information provided by the applicant.
Job descriptions should exist for all positions and be updated annually. Reviewing job descriptions with employees at their annual review allows the employer to be sure the job description accurately reflects the employee’s current job duties. All essential job functions should be included so the employer is prepared if the employee seeks reasonable accommodations for a disability.
Trainings are an essential tool to protect employers from potential liability. Some recommended trainings include: workplace harassment (what is harassment, what is the company’s policy, when and how it should be reported, how are complaints investigated, the importance of conducting an immediate investigation); documentation (what, when and how to document; the purpose of documentation); disciplinary action procedures (when and how to document problems in the workplace, understanding “at will” employment, avoiding discrimination and retaliation claims); interview and investigation procedures; complying with leave and disability laws (how and when to designate leave as FMLA/OFLA; what to do when leave runs out; engaging in and documenting the interactive process; evaluating requests for accommodations); and recordkeeping (how long and where to keep records; what belongs in the personnel file; separate and secure locations for medical records). Participants should sign in at trainings; the sign in sheets should be retained with the training materials.
Evaluations and Disciplinary Actions
A self audit should include a review of evaluation and disciplinary procedures. Employers should verify that annual reviews are being conducted and that employees are given objective measures for improving performance. Managers should be trained how to write a corrective action, including examples of inappropriate conduct, identifying and attaching policies that were violated, stating the employer’s expectations, and explaining the consequences if performance does not improve. A termination checklist is a valuable tool. Before the termination decision is communicated to the employee, the personnel file should be reviewed to verify it contains all the documentation leading up to the termination. Consideration should be given to whether the employee falls within any protected class and if so, whether the legitimate nondiscriminatory and non-retaliatory reason for the termination is documented.
Employers should insure required postings are in fact posted. An updated list of required postings is on the Oregon Bureau of Labor website. An annual internal review of human resources procedures is a valuable risk management tool that may save the company significant litigation costs. It is a wise investment of company time and resources. | LISA BROWN, BULLARD LAW
LISA BROWN • LBrown@bullardlaw.com