For Employers

Although employment litigation can not always be avoided, it is critical that employers hedge their risk of being faced with former employee lawsuits by implementing and consistently following good employment policies and practices that are aligned with federal and state laws.  Caldwell Everson has extensive legal experience in assisting employers in the assessment and implementation of proactive employment practices which prevent or alleviate the strain of potential employment litigation.  

Below you will find a snapshot of certain legal requirements and good practices that employers should be aware of when reviewing their current employment policies.  For other legal requirements or for specific questions concerning these topics, please contact Caldwell Everson to set up a legal consultation. 

1. Employers Should Have Written Employment Policies and Procedures. 

Having an employee handbook detailing the policies and procedures of a wide range of topics, including, but not limited to, disciplinary proceedings, discrimination, bonuses, sexual harassment, workers’ compensation, medical leave, and regular hours of work, is an employer’s first line of defense against any employment lawsuit.  Implementing, documenting, and following standardized policies will help in the prevention of invalid lawsuits being brought.  Moreover, even if an employment lawsuit is brought against an employer, having written policies and the ability to show that the standard policies were followed will greatly assist in the defense of the lawsuit.

In addition to having a handbook, it is essential that employers keep their handbooks up-to-date.  Federal and state laws frequently change.  As such, employers should annually review their handbook policies to ensure they continue to be in compliance with all applicable laws.

2. Employers Should Review Their Drug and Alcohol Testing Policy. 

Many employers implement drug and alcohol testing policies.  Generally, employers may require applicants or employees to undergo pre-employment, random, reasonable suspicion, or post-accident drug and alcohol testing.  However, there are many state laws that limit the circumstances in which testing may be performed and provide specific procedures for conducting employee drug testing.  Furthermore, federal law compels the testing of certain types of employees and provides its own procedures that employers must follow.  Employers should therefore confirm that they are following all applicable state and federal requirements.

In addition, employers who have not implemented a workplace drug and alcohol testing policy may want to consider doing so, especially if the employer is located in a state where discounts on unemployment insurance are offered to employers who have such policies.  However, employers that do implement workplace drug and alcohol testing policies should confirm that they are following all of the statutory requirements associated with these discounts.     

3. Employers Should Ensure That They Are Complying with the Family and Medical Leave Act (“FMLA”)

The FMLA requires employers with fifty (50) or more employees to provide eligible employees a total of twelve (12) workweeks of unpaid leave during any 12-month period: (1) for the birth and care of a newborn child; (2) for the placement of an adopted child or a foster child; (3) to take care of an immediate family member for a serious health condition; or (4) to take care of the employee’s own serious health condition.

There are many issues that an employer must consider when administering FMLA leave.  For instance, the employer must determine how to calculate the 12-month period.  The FMLA provides several options for this calculation.  Often times, however, employers will use a calendar period without considering these other options.  Although, this is acceptable under the FMLA, many times employers want to avoid using the calendar year as the 12-month period.  Otherwise, an employee could potentially take the last 12 weeks of the year off and the first 12 weeks of the year off and potentially be protected from termination under the FMLA.

It is also important that the employer know its obligations concerning notification to an employee about an employee’s rights and responsibilities under the FMLA.  When an employee takes time off for a FMLA-qualifying circumstance, an employee does not have to specifically state that he or she intends to use FMLA leave.  The employer must therefore be knowledgeable as to the circumstances in which leave qualifies as FMLA leave so that it can immediately notify the employee that his or her leave will count as FMLA leave; what is expected of the employee while on leave; and the employee’s return-to-work date.  Clear, prompt notice will not only help employees understand their obligations, but will also ease the administration of FMLA leave.

4. Employers Should Act Quickly When There is a Complaint regarding Discrimination

There are various forms of discrimination that can occur in the workplace—race, national origin, gender, age, disability, etc.  Discrimination in the workplace can be obvious, but at times it is much more subtle.  As an employer, it is critical for the wellbeing of your employees to ensure that if there is a complaint regarding discrimination, it is handled in an efficient and unbiased manner.  In order to protect yourself against a discrimination lawsuit, it is important that an employer: (1) quickly conduct an investigation; (2) ensure that the investigation is impartial by retaining  outside counsel to conduct and document the investigation; and (3) take immediate action once a conclusion from the investigation has been reached.

5. Employers Should Prepare for Unemployment Compensation Hearings

Unfortunately, at times, employers must discharge employees for misconduct.  When this happens it is imperative that employers document their reasons for discharge.  Employers often assume that because they have discharged the employee for misconduct, the employee will not receive unemployment compensation.  However, mistakes by employers can result in an employee receiving unemployment compensation despite the discharge for misconduct. 

When an employer receives a notice regarding an unemployment compensation hearing, it is imperative that the employer immediately pull together all of its evidence.  This includes not only gathering documents, but also preparing witnesses to testify at the unemployment compensation hearing.  A failure to present first-hand testimony or to show up for the hearing at all may result in an employee undeservingly receiving unemployment compensation benefits.  Hiring an attorney with experience in unemployment compensation hearings will greatly help in the preparation.