Today's workplace has become more complicated in recent years with the enactment or amendment of numerous federal laws such as the ADA Amendments Act, the Family and Medical Leave Act, the Dodd-Frank Act, the Fair Labor Standards Act, the Ledbetter Fair Pay Act, and the Genetic Information Nondiscrimination Act, just to name a few. At the same time, state governments have enacted their own employment laws, and they are often quite different than their federal counterparts.
Just as the number of laws governing businesses has significantly increased in recent years, so has the volume of employment class action litigation, particularly with respect to wage and hour litigation. In fact, the activity level has never been greater, as many employees now consult with an employment attorney as a first response to termination. Furthermore, employment litigation has also grown to encompass a wide range of whistleblower and retaliation claims.
Technological advances, such as social media and text messaging, have also changed the face of today's workplace. Challenges that simply did not exist a few years ago, such as cyber liability, the proliferation of social networking and mobile devices, and employee privacy and generational issues, can create expensive legal problems if they are not addressed proactively and effectively.
In response to these new legal issues, LeClairRyan's Labor and Employment practice offers a full range of auditing services designed to diagnose, treat and eliminate potential sources of liability before litigation occurs. Our attorneys are skilled at understanding business complexities and performing legal audits that are customized to meet company-specific needs.
As part of our client-centric process, LeClairRyan is dedicated to creating alternative fee engagements that are tailored to your company's unique goals and business considerations. Many of the auditing services available are billed at a flat fee based on the size of the employer -- with the client selecting the services to be included in the audit. In addition, LeClairRyan offers clients a depth of industry teams -- comprised of attorneys who are knowledgeable of the employment and regulatory matters unique to many specific industries. An overview of some of these audit services is attached below.
We encourage you to take preventive measures now. Employee manuals and policies are a company's first-line of defense against employment litigation. Please feel free to contact your LeClairRyan attorney or members of the team at the numbers listed at the right to discuss how we can revise your employee manual and policies to ensure they are responsive to workplace complexities and effectively protect your company's reputation and bottom line.
Labor & Employment Checklist
The following areas should be audited to ensure compliance with all state and federal laws:
- Review copies of the schedule of officers, directors, employees, independent contractors and consultants, and their respective titles, length of service, current compensation and benefits, compensation history since employment or engagement, and contractual severance obligations. Review copies of any employment agreements or independent contactor agreements. Review copies of any confidentiality, non-solicitation or non-competition agreements to which key employees and consultants may be a party currently or from prior employment or engagements. Many of these agreements contain clauses that are out of date. Many contain non-compete provisions that are not enforceable. This review includes revising and redrafting all contracts, as needed.
- Review copies of any communications to or from any governmental or regulatory agency with respect to any labor and employment issues in the past 5 years. Review required postings: Federal Posting Requirements--Based on the number of employees, many state and federal laws require employers to post various notices throughout the workplace and some of the laws require employers to publish these policies in handbooks if the employer maintains such handbooks. (Review of required supervisory or employee training if applicable.)
- Review (or, where none exists, draft) policy and personnel manuals, including, but not limited to, policies and procedures with respect to joint employer issues, NLRA issues (union), wage and hour law, conduct and discipline, vacation and sick time, discrimination, harassment, and retaliation and equal opportunity. An FMLA policy may be necessary if the target has 50 or more employees. NOTE: If there is an employee handbook, the FMLA policy must be in the handbook.
- Review social networking policies and policies designed to cover electric communications, and use of computers and electronic equipment and mobile devices.
- Review performance evaluation issues--Is there a performance evaluation process in place? Is it formal or informal? Is there a progressive discipline policy in place (oral warning, written warning, and final warning)?
- Review wage and hour issues--do salaried employees meet the requirements under the Fair Labor Standards Act to be exempt from overtime payments? Are the hourly employees being properly paid for all work?
- Review job descriptions for compliance with the Americans with Disabilities Act.
- Review drug and alcohol-free workplace policies.
- Review of safety and health policies.
- Review I-9s and Federal and State documentation.
- Review OFCCP filings and affirmative action plans.
- Review and draft appropriate policies covering employees seeking to communicate unlawful activities and implement hotline procedures for "whistleblower" communications.
- Review the recruitment and selection policies and procedures--Do the people hiring staff know the right questions to ask in an interview? Are the background checks appropriate under the Fair Credit Reporting Act?
- Review verbal warning, written warning and termination procedures and documents. Do supervisors know how to properly document performance problems?