By Charles L. Appleby, IV
In honor of Small Business Week, Collins & Lacy attorneys teamed up with the Greater Columbia Chamber of Commerce to talk to small business owners in the community. I chose to speak about Employment Law, Social Media & Tips for Avoiding Lawsuits. My presentation covered the risks related to social media and governing law of which small businesses need to be aware of in the day-to-day work environment. Here is my top 10 checklist of common employment law and HR mistakes and how to avoid them:
No Job Description
This is really the very first step in a proper hiring process and the Americans with Disabilities Act has made it nearly mandatory to have an appropriately written one. By thinking through exactly what you need the new employee to do on a day to day basis will also help ensure you do not waste time with applicants not capable of performing the job with or without reasonable accommodations.
No Employee Handbook
An employee handbook helps maintain a consistent work environment which reduces allegations of unfair treatment. It also protect your company from legal liability by demonstrating the company’s compliance with a variety of labor laws, including state and federal laws. One of the most vital components of the employee handbook is the employee acknowledgment page. Under South Carolina law, this page needs to include certain information to ensure the handbook is not considered a contract.
Not Protecting Information
Reasonable non-compete and/or non-solicitation agreements prevent employees from taking clients they met and built relationships with while working for you. Taking extra steps to guard other types of information you’ve worked hard to obtain (i.e. only allowing certain employees access, password protecting, etc. ) will help you argue the information is protected by the South Carolina Trade Secrets Act and cannot be used by a former employee.
Wrong Interview Questions
Asking the wrong interview questions (i.e. how old are you, have you ever been arrested, etc.) is one of the fastest ways to find yourself in a discrimination lawsuit.
Failing to Train
Train all managers on employees’ rights under the ADA, Title VII, ADEA, FLSA, etc. at least annually, if not more frequently. Providing general training to employees when they are hired and on an ongoing basis will help build morale and productivity.
Not Showing the Money
Failure to properly pay minimum wage, overtime, and benefits can land your company in a lawsuit for violation of the Fair Labor Standards Act. Failure to properly pay wages and benefits after terminating an employee is one of the many ways to violate the South Carolina Wage Payment Act.
No Performance Evaluations
Honest, regular performance evaluations that are given based on a set method of evaluation are your best defense in a discrimination lawsuit.
No Documentation or Follow Through
Document both good and bad performance. Without sufficient documentation, the employee’s personnel file does not reflect his/her poor performance, thus giving you little or no justification to discharge the employee.
Not Applying Rules
If you or your supervisors only apply policies occasionally or have a tendency to overlook certain ones, your actions may easily be perceived as discriminatory, especially in regards to major employment decisions like promotions, disciplines and terminations.
Terminating on Emotion
You should take as much time to fire as you do to hire. Unless the employee is absolutely driving you crazy and you feel like you must fire the person immediately, make sure you have a properly documented file before pulling the trigger. While you should take your time, do not be afraid to terminate employees who are liabilities, either legally or to your business’ productivity.
Ultimately, many lawsuits are not about discrimination or failure to properly pay. They are in response to perceived unfair, demeaning, or unprofessional treatment which you can help prevent by avoiding these top ten employer mistakes. If you have any questions about the information above or want help in reviewing your policies and procedures to ensure you have everything in order, let us know and someone from the Collins and Lacy employment team will be happy to talk with you.
About the author:
Charles Appleby is based in the Collins & Lacy Columbia, S.C. office and practices in employment law and retail/hospitality/entertainment liability. In his employment practice, Charles represents employers from all types of industries in litigation and alternative dispute resolution. Charles has represented clients in Circuit Court, United States Federal Court, and has appeared regularly before the South Carolina Employment Securities Commission and Appeals. He was recently honored by South Carolina Super Lawyers as a 2013 Rising Star. Charles can be reached at 803.255.0409 or at firstname.lastname@example.org.