Being involved with your company’s human resource department can be overwhelming and frustrating at times regardless of your position within the department. As the law changes, the H.R. Manager is responsible for ensuring that your company complies with all federal and state laws while also minimizing the risk of litigation brought by current and former employees. Although this blog is not intended as an in depth discussion of everything H.R., it should provide key information on a few of the most relevant H.R. topics our law firm constantly sees.
Think of H.R. as somewhat of a “family tree,” where the top of the tree is Human Resource Management and is composed of the company’s organizational structure (on the left) and human capital (on the right).
The organizational structure side of the tree is further composed of:
- Policies and procedures
- Payroll deductions
- Job descriptions
- Classifying workers (i.e. employees versus independent contractors)
- Classifying employees (i.e. overtime versus overtime exempt; part-time versus full-time)
- Record retention
This list is by no means exhaustive, however, there are a few key issues that need to be addressed.
First, your company’s policies and procedures is paramount to any newly hired employee. These policies and procedures delineate exactly what is expected of the employee and can range from tasks and responsibilities applicable to solely that employee all the way to the proper way to request time off. Keep in mind, that the policies and procedure need to clear, legal and consistently applied across the board to avoid potential litigation down the road. It is also important to have your employee initial and sign each respective policy and/or procedure to not only ensure the employee understands what is expected of him/her, but also to safeguard your company from potential litigation should you, as the H.R. Manager, have to take some adverse action against that employee for violation of the company’s policies and procedures. Maintain copies all policies and procedures along with their respective signatures in each employee’s personnel folder. We recommend having legal counsel review each policy and procedure prior to adoption to ensure nothing, on its face, is in violation of state or federal law.
Just as importantly, draft very detailed and inclusive job descriptions for each and every job title within your company. At a minimum, a job description should have at least five (5) Bona Fide Occupational Qualifications (BFOQ) that are essential to the performance of the job. The reasoning behind this is twofold. First, using the dedicated job description during the interview process allows you to ensure that the prospective employee can satisfy each and every function of the job. If he/she cannot, you then have a legal basis to move forward with your search without the threat of potential litigation based on the alleged discrimination of a member from a protected class (i.e. gender, age, sexual orientation, religion, national origin, etc…). Second–and somewhat related–should the prospective employee require some sort of an accommodation to satisfy the BFOQs, you can determine early on if (1) an accommodation is possible and (2) the best way to implement that accommodation.
Lastly, the proper classification of employees within your company is essential and will allow your company to avoid some very serious consequences. An employee is either exempt or non-exempt. Exempt employees generally fit into one of the following categories: (1) executive employees; (2) administrative employees; (3) learned professional employees; (4) creative professional employees; (5) computer employees; or (6) outside sales employees. Without getting into detail about which employees are included with each category, exempt employees are not entitled to overtime compensation provided they fit into one of the above categories and earn more than $800 per week. Non-exempt employees, on the other hand, are entitled to overtime compensation for every hour worked over eight (8) in a single day. Failure to pay non-exempt employees properly can lead to significant amounts of back pay should that employee file a lawsuit. Interestingly, federal law will surpass that of California for the first time since inception in that beginning December 1, 2016, an exempt employee will have to earn, at a minimum, $913 per week, otherwise, the employer would be liable for back pay.
The greatest companies often employee the happiest employees. With that in mind, the right-side of the Human Resource Management tree is Human Capital, which is a fancy way of saying how retain those core employees (employees that have been employed for 2+ years). Included within the Human Capital branch is:
- Leadership training
- Sexual Harassment/Bullying/Diversity training and
- Employee relations.
While everyone could provide some type of explanation explaining what each of these subcategories entails,it is important to key-in on one of the leading issues in today’s employment world…sexual harassment. Importantly, any company with 10+ employees is required to undergo a sexual harassment training seminar once per year. As the H.R. Manager, it is your job to ensure this takes place. Where companies get into trouble is after a complaint is made (putting the company on notice) and nothing ends up being done.
Remember, you cannot be worried about being everyone’s friend. You have a responsibility to the company to protect it from potential litigation, meaning you must take action anytime a complaint is made about possible sexual harassment. Employees cannot speak to you “off the record” since doing so puts the company on notice of any complaint mentioned and ultimately opens the company up to significant liability. You may not be able to completely prevent the harassment, however, if you can show that the company actively took steps to help ameliorate the situation you will likely succeed in defending a potential lawsuit.
As you can see, there are so many issues that arise when dealing with H.R. Take the time to know and understand exactly what the company is responsible for and, likewise, what each individual employee is responsible for. Know the respective rights of the company and employee and the laws and regulations governing each and you will be right on your way to ensuring that those core employees stick with you and your company remains great.