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HR's 10 Most Common Legal Mistakes

April 15th, 2019

compliance law rules

As employment laws become more complex (not to mention more numerous), it's easier than ever for costly mistakes to occur. Penalties can run into the thousands of dollars for simple mistakes (mishandled I-9s can be as high as $1,100 for each violation). More serious violations could bankrupt a small business.

Business Management Daily has compiled a list of 10 most common mistakes managers and HR make. Not each will directly get you into trouble with the law -- at least not directly. But each can land you into legal hot water.

We've listed them here with a brief explanation. The post provides more detail about each:

  1. Advertisements, Interviews and Offer Letters -- Is the language in your job posting discriminatory? Do all the hiring managers know to avoid asking about personal and/or protected characteristics?
  2. Wage and Hour Issues -- More than ever, the Labor Department is cracking down on worker misclassification. Be sure your exempt employees meet all the elements of the test and not just the pay level, which is expected to change later this year.
  3. Privacy Assumptions and Violations -- Your handbook should make clear they should not expect anything on their company computer, cellphone or other device to be private. The flip side of that is that the company has the legal obligation to keep employee records confidential.
  4. Training and Performance -- Managers must be trained on all the legal requirements and, in many parts of the country, that training needs to be refreshed regularly. The importance of documenting performance must be impressed on them.
  5. Onboardings and offboarding -- "Among HR's common errors in this area are: failing to submit the state notice of a new hire, failing to tell the employee the key terms and conditions of employment, and providing the employee with a misleading description of working conditions."
  6. Investigations -- Employee complaints need to be promptly investigated. No matter who conducts them, it's HR's responsibility to oversee the investigation.
  7. Recordkeeping -- Be sure to document all practices to avoid claims of discriminatory enforcement of the rules. And ensure you have, retain and know where to find all documents as required by law.
  8. Communication -- "Forgetting to notify employees about policy/procedure changes, outcomes of investigations or discipline issues or unsatisfactory behavior or work quality can be a costly slip-up."
  9. Accommodations -- The Americans With Disabilities Act requires employers to make reasonable accommodation in work assignments and the physical workplace for covered employees. You also need to make an accommodation for other workers including those in the military who are called to duty and for religious observation.
  10. Noncompete Agreements -- You may want to prevent a valued employee from going to work for a direct competitor, but be careful. California, for example, doesn't recognize competes and all courts take a dim view of any agreement prohibiting an employee from working at any position in the same general industry forever.

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