The U.S. Department of Labor administers and enforces more than 180 federal employment laws. State and local governments heap their own regulations in addition to these. With all those rules, laws, mandates and reporting requirements to keep track of, it’s easy to violate an employee’s rights without even knowing it.
I asked Jonathan Yarbrough, a North Carolina-based partner with Constangy Brooks & Smith—a nationwide firm that concentrates solely on employment law—for some of the inadvertent violations he’s seen. Here are the situations that he encounters most often.
1. Whiny employees. Want to fire that employee who has been complaining about her job, your customers and you? Doing so may be deemed an unfair labor practice under the National Labor Relations Act (NLRA) even if the employee does not have a union.
2. Mandatory drug testing. An employee fails to complete a mandatory drug test because they have a shy bladder and simply could not urinate with someone nearby. Can you fire them? The Equal Employment Opportunity Commission (EEOC) has recently opined that someone with a shy bladder could have a disability under the Americans with Disabilities Act (ADA). As a result of numerous amendments to the ADA, more impairments are considered disabilities than ever before.
3. Bad health habits. With the increased focus on the cost of wellness, you might be inclined to refuse to hire or even terminate those with bad health habits, but doing so may violate their rights. Some states, such as North Carolina, have statutes protecting the off duty use of lawful products. So, if your employee wants to smoke a pack of unfiltered Camels, pound some cupcakes and drink a fifth of Jack on his or her own time, you have no right to stop them unless they show up intoxicated or otherwise violate company policies.
4. Smelling pretty. "Oooh that smell. Can't you smell that smell?" Lynryd Skynryd probably wasn’t referring to an ADA violation in those lyrics but whether you smell it or not, doesn’t matter. An employee’s complaint about a co-worker’s lavish application of musk oil may be deemed a chemical sensitivity and considered an ADA disability.
5. Work-hour restrictions. Can you fire an employee who said they could work all shifts when they applied for the job but now says they can’t work after sundown Friday? No. You must first determine if you can reasonably accommodate the employee under Title VII of the Civil Rights Act of 1964.
6. Meal breaks. Does your time keeping system automatically deduct meal breaks? What if an employee doesn’t take one? Under the Fair Labor Standards Act (FLSA), if an employee tells their supervisor they did not get the meal break because they were working, the time must be paid. In general, the practice of automatically deducting break time is an invitation to a lawsuit.
7. Working during off-hours. Is a nonexempt employee who answers e-mail at night or on a weekend entitled to pay for that time? If it’s more than trivial time and the employer knew or should have known the employee was working—as evidenced, for example by an e-mail—FLSA says they have to be paid. The fact is, an employer has to pay nonexempt employees for all time worked.
8. Raising a red flag. Employers need to be especially careful about disciplining or terminating an employee who has complained to government agencies (or even internally) about such things as wages and hours, unsafe working conditions, financial wrongdoings, harassment or other problems. There are dozens of whistleblower laws that protect employees from being penalized for raising a red flag.
9. Medical history. Asking an employee about family medical history can be a violation of Genetic Information Non-Discrimination Act (GINA). While there are certain exceptions for casual "water cooler" discussions, it’s best to let all your employees know they simply cannot ask co-workers or subordinates about their medical history, or for that matter, details about their marital status, sexual preference or family.
10. Medical leave. Your employee has exhausted the Family and Medical Leave Act allowance and is not back after 12 weeks. Can you fire them? Not necessarily. Additional leave can be a reasonable accommodation under the ADA although it cannot be open-ended—one essential function of every job is attendance.
How to avoid breaking the law
Short of hiring a full-time compliance person, how can you protect yourself from what you don’t know? Yarbrough offers some advice.
- Make sure you have legal counsel with experience in employment law on call—real estate lawyers acting as employment lawyers won't cut it.
- If you can’t afford an experienced HR professional, at the very least designate someone in your organization to handle HR issues and help them keep up-to-date by attending seminars and participating in HR organizations such as the Society for Human Resources Management (SHRM) to gain a body of knowledge.
- Don't reuse employment documents from the Internet—but if you do, have counsel review what you’ve pilfered. Your free find may cost you a bundle in the long run.
- Make sure you have a harassment policy and provide training for all employees. They should know what you expect from them and what they can expect from you. Be sure managers, supervisors and your information technology staff know how to respond to harassment claims.
- Document, document, document. Or, more to the point, document properly. Juries, judges, the employment security commission and anyone in the legal food chain expects a paper trail. He said, she said infuriates a jury.
- Hire a professional to audit your employment practices, policies, postings, etc.
- Treat employees with respect and dignity, even when you have to discipline or terminate them.
In employment, as in most fields, ignorance is not a valid defense. Employee lawsuits cost employers billions. Much of that cost could be avoided with an ounce of prevention. (Read more on legal issues.)