Posts Tagged ‘2012 Employment and Labor Law Update’

Best Practices for Getting Your Workplace Investigation off to a Good Start

Thursday, May 31st, 2012

During CAI’s 2012 Employment and Labor Law Update, attorney Bob Sar from the Ogletree Deakins law firm recommended several best practices for conducting successful workplace investigations. To minimize retaliation risks from related investigations, Bob lists three actions that organizations can take to protect themselves:

  • Establish a strong anti-retaliation policy
  • Develop a standard interview process
  • Document employee performance regularly

Bob shared with conference participants the four ultimate goals of a workplace investigation:

  • To determine if a problem exists
  • To protect the company
  • To provide an opportunity to demonstrate fairness
  • To encourage internal dispute resolution and reporting of problems

Employers should investigate all employee complaints, even if the complaining employee doesn’t want an investigation started. Bob advises employers to also investigate off-the-record complaints and never promise employees absolute confidentiality during the course of an investigation.

Once you have cause to investigate a workplace complaint, follow these three steps to start an effective investigation:

1. Determine if it’s necessary to implement immediate action on parties currently involved or soon-to-be involved.

  • Examples include suspension, separating employees, sending a status report to company leaders.

2. Select the best candidate to be the investigator.

  • Consider the following factors when choosing an appropriate candidate: how is his or her demeanor? Is this person empathetic? Does gender matter in regard to the complaint? Can he or she be impartial?

3. Review all documentation related to the complaining employee, the accuser and the actual complaint.

  • Consistent documentation is key for an effective investigation. Collect information from several sources, including employee personnel files, company policies and handbooks, and past complaint files. Reviewing emails and electronic files are helpful to the investigation as well.

Once you’ve selected your investigator, alerted people who should know about the investigation and collected necessary documents, you can proceed with employee interviews with the victim, the accused and witnesses to determine the outcome of the complaint.

For additional information and tips for conducting workplace investigations, please contact a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: Nina Matthews Photography

4 Things Employers Should Know About the ADAAA

Tuesday, April 17th, 2012

Congress passed the Americans with Disabilities Act Amendments Act  (ADAAA) in 2008 with the intent to focus trials on whether discrimination occurred instead of whether an impairment is a disability under the Americans with Disabilities Act (ADA). With the burden of proof now shifted to the employer, it is important for HR departments to be aware of and up to date with the act’s revisions. Knowing the details of the ADAAA will help your organization stay compliant with the law and avoid a lawsuit and accompanying fees.

Here are four things you should know about this act—

1. The definition of a disability is broader.

The original ADA stated that a disability was anything that substantially limits a major life activity. Now that the list of “major life” activities has expanded, more employees are covered under the revised act and can potentially claim a disability.

2. Mitigating factors do not determine whether an employee has a disability.

Under the ADAAA, mitigating measures, which can reduce or eliminate a disability’s effect can’t be considered when an employer or a court is determining whether an employee has a protected disability. Eye glasses are the one exception to this rule.

3. The definition of “reasonable accommodation” is unchanged.

The act clarifies that only individuals who have an impairment that limits a major life activity and a record of the impairment are eligible to receive reasonable accommodation. It is important to note that employers have flexibility under this section of the act. They are not required to fulfill the employee’s exact request if suitable alternatives are available.

4. Documenting is your best protection.

As with most human resources situations, documenting all steps in your process is key to protecting yourself against an unfavorable lawsuit outcome. Before making any reasonable accommodations for your employees, you should request from them documentation by a medical professional affirming their disability. Document all the steps you take in ensuring that your company is doing its best to accommodate employees without undue hardship on its end.

With the ADAAA in full effect, employers should review their handbook policies regarding disabilities and requesting reasonable accommodation. Your company’s employee handbook should include the new definition of a disability. Training your managers with direct reports on how to adequately respond to disability mentions and accommodation requests will also help you stay out of the courthouse.

Labor and employment lawyers from Ogletree Deakins will discuss the ADAAA in more detail at CAI’s 2012 Employment and Labor Law Update on May 2 and May 3. In addition to a review of the ADAAA, conference presenters will give participants updates on the most recent news and changes in state and federal employment laws. Additional topics include: workers’ compensation, healthcare reform, FLSA exemptions and more. Register for the conference today: www.capital.org/lawupdate.

Photo Source: Leo Reynolds

Don’t Make These 4 Common Mistakes When Filling Out an I-9

Tuesday, March 27th, 2012

The I-9 form can be a tricky document for employers. The government has created specific rules that must be followed when completing the deceivingly simple document. Your organization may be penalized and fined if the regulating agency discovers incorrect information or mistakes in your employees’ I-9 forms. To stay compliant with state and federal regulations, avoid these common I-9 mistakes:

1.  Does Everyone Have an I-9 Form on File?

Your organization should have a correctly completed I-9 form for every employee. Making sure that you do is important to stay in compliance. If the U.S. Immigration and Customs Enforcement (ICE) agency conducts an audit or investigation and learns that you’re missing forms for any of your employees, you will most likely be fined.

2.  Missing and Misplaced Information

Missing and misplaced information are mistakes that can easily be avoided if you and your employees spend adequate time filling out the documents and reviewing for errors. Here are some examples of information that is frequently misplaced or left out: wrong date, no signatures and information in incorrect boxes.

3.  Not Following the Three-Day Rule

You are required to complete a new hire’s I-9 form within three days of his first day of paid work. After an applicant has been offered and has accepted the job, ensure the new employee is aware of the types of acceptable identifying documents they may choose to provide to accurately fill out their I-9 forms. Helping your employees prepare for their first day of work will help you steer clear of potential fines.

4.  Incorrect Corrections

If there is incorrect information on an I-9 form, do not use a marker to cross out the information. Using white out is another mistake that employers often make when trying to correct information. Failing to initial and date corrections will also make an employee’s I-9 form erroneous. If these mistakes are made and the document lacks clarity or is not easy to follow, filling out a new form is appropriate. Make sure the original document is attached to the new one. Never backdate changes.

For more information on staying compliant with state and federal regulations, please join us on May 2nd and 3rd at the McKimmon Center in Raleigh for the 2012 Employment and Labor Law Update. The conference will feature experienced lawyers from Ogletree Deakins who will update you on the most recent regulatory and legal changes affecting employers. Some of the topics they’ll discuss include the ADAAA, Workers’ Compensation and Healthcare Reform. You can register for the event and see the additional topics here: www.capital.org/lawupdate.

Photo Source: Victor1558