I love this time of year. For some magical reason, everyone’s mood changes and smiles appear. Perhaps it’s their pending vacation or the chance to spend quality time with friends and family. So, in the spirit of the holidays, here is my gift to all our readers.   Drum rolls please . . . 

TEN WAYS TO AVOID GETTING SUED IN THE NEW YEAR 

  1. Start preparing for the new overtime rules.   The U.S. Department of Labor (DOL) recently proposed the biggest changes to federal overtime law in history. The proposed regulations would more than double the salary threshold for exempt employees. If you missed my partner Bob Turk’s webinar on the DOL’s proposed rules, it can be accessed hereDon’t forget to audit independent contractor classifications as well.
  2. Update your FMLA forms and policy.   In May 2015 the DOL issued new FMLA forms. The new forms contain an expiration date of May 31, 2018. {Check out my blog on the topic.} The following month, the United States Supreme Court issued a landmark decision making same-sex marriage lawful in all states nationwide. So, it’s time to update your FMLA policy definitions, if you haven’t already.
  3. Review the National Labor Relations Board’s latest guidance on handbook rules [NLRB General Counsel’s 30-page memorandum], and update your handbook. If you have a non-union workplace and are wondering why you should worry about the NLRB’s position, remember that a disgruntled employee can easily file an unfair labor practice challenging a handbook policy.
  4. Distribute your anti-harassment/anti-discrimination policy to all of your employees (including seasonal employees), obtain a signed acknowledgement and conduct training. Ensure that the policy includes multiple avenues for voicing complaints (and try to avoid having a “supervisor” as the person to whom employees should voice complaints, as that person is often the alleged harasser). Also, employers are required to take prompt remedial action in response to complaints, so don’t delay responding to complaints. Problems that are ignored often erupt into serious and costly litigation. Cross-reference this policy in your Internet, electronic communications, social media and computer use policies.
  5. Educate your supervisors regarding new protected classes. For example, Miami-Dade County added “status as a victim of domestic violence, dating violence, or stalking.”
  6. Review your consent/disclosure forms used for background checks, and ensure they comply with the Fair Credit Reporting Act.  For further details, check out my article from the Florida Employment Law Letter, on www.hrhero.com.
  7. Document. (It really will make life so much easier.) Employers should evaluate their employees’ performance regularly and candidly. Employees are much less likely to sue their employers when they are put on notice of deficiencies and given an opportunity to improve. Juries also are more likely to believe an employer when the performance issue is documented at the time the issue arose. DO NOT SUGAR COAT performance evaluations. Many employment discrimination lawsuits are lost or settled because an employee was terminated after receiving a glowing review.
  8. Create a formal policy on disability accommodation. Many lawsuits are brought under the Americans with Disabilities Act because the employer failed to recognize an employee’s request for some type of workplace change as a formal request for an accommodation or failed to engage in the “interactive process” with an employee seeking an accommodation. If you already have a policy, train your supervisors so that they understand the employer’s duty to accommodate employees with disabilities and what that duty entails.
  9. Treat your employees as you would want to be treated. Be consistent and fair in your treatment of employees. Maintain an open door policy; create a workplace that fosters communication with employees. Don’t underestimate the value of employee recognition.
  10. Keep your employment attorney’s number on speed dial. Don’t be penny wise, pound foolish, in seeking help for difficult employment issues. A consultation with an experienced, competent employment lawyer can save hundreds of hours in litigation costs.