December 20, 2010Client Alert

Five New Year’s Resolutions for Human Resources Professionals

With the advent of each New Year, many people make resolutions to improve their personal and/or professional lives. Some may fulfill those resolutions. Some may never get started. Some may try but fail. For those Human Resource Professionals brave enough to try, we suggest the following resolutions:

  1. Review And Update Your Employment Manual. Given the continuous changes in laws, court rulings, and, potentially, the circumstances of your company, it is a good practice to periodically review and update your company’s employment manual. Take a hard look at your manual. Is it comprehensive and understandable? Do you need to add policies required by the law? For example, does your company now employ 50 employees or more, such that you will need to include a Family and Medical Leave Act policy? Do you have a comprehensive anti-harassment policy? Does your disciplinary policy confirm (rather than undercut) the desired “at-will” employment relationship? Or, is there language that created issues for you in the past year because it was either unclear, or an employee discovered a “loophole” that violated the spirit of the policy? If so, modify the language accordingly, and distribute the changes to employees.

  1. Develop A Written Social Media Policy. Does your company have a written, distributed Social Media Policy? If not, you should seriously consider drafting one. Many legal issues have arisen recently over employees’ use of social media at work and in their off duty hours. Do you limit access to social media sites at work? Do you have guidelines or restrictions on how employees can appropriately use social media sites for business purposes? Do you have rules regarding employees’ use of social media sites in their off duty hours? Did you know that the National Labor Relations Board recently issued a highly publicized Unfair Labor Practice Complaint against an employer for firing an employee for comments she made on her Facebook page? The lesson: consider development of a social media policy sooner, rather than later.

  1. Conduct a Wage and Hour Audit. How comfortable are you that your company’s wage and hour practices are in compliance with the Fair Labor Standards Act (“FLSA”) and state wage and hour laws? Are there certain administrative employees that you feel may be misclassified as “salaried exempt,” and in actuality should be paid overtime? Are you aware of situations where your employees are working “off the clock” without compensation (i.e. at home, on blackberrys, before “punching in”, or over lunch breaks)? Have you recently had an employee question whether he/she is being paid lawfully? A confidential internal wage and hour audit conducted by an attorney can provide you with some assurances that you are in compliance, and/or identify compensation practices that need to be changed. Given the significant potential liability under the FLSA - two years of unpaid wages, double damages, and attorney’s fees - an ounce of prevention is certainly worth a pound of cure.

  2. Review and Revise Your Non-Competition and Confidentiality Agreements. Do you make certain employees (such as salespeople) execute non-competition and confidentiality agreements? If so, you should have legal counsel review your agreements to determine whether they are enforceable under the current state of the law. Courts continue to issue decisions that impact the enforceability of non-competition and confidentiality agreements. In fact, some recent decisions have been more favorable to employers than in the past. However, the precise language contained in these agreements is critical to their enforceability. Words matter. Make sure that your non-competition agreements contain clear, reasonable restrictions to give you the best chance to enforce your agreement against an employee that goes to a competitor. Reviewing and modifying any unclear or overbroad language in these agreements can be the difference between enforcement and suffering from an ex-employee’s actions.

  1. Document Everything. Lead by example. Make a pledge to document significant discussions with employees. As court decisions and jury verdicts demonstrate, documentation is often the key to successfully defending against employment claims. Therefore, document all discussions of key interactions with employees where the discussions and/or incidents may lead to litigation. For example, document all discussions with employees who may have disabilities and are requesting “reasonable accommodations.” Document discussions regarding reasons for absences, and granting of leaves. Document all disciplinary warnings issued to employees. Document the reasons for why one employee was selected for promotion, and another was not. Document an employee’s annual performance in a candid, detailed performance review. Although time consuming, such documentation is incredibly important for defending against employment claims.

The more of these resolutions that you can accomplish, the less legal headaches you will have with your employees and ex-employees. Here’s to your best HR year yet!

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