The past few years have been unprecedented for everyone, but employers have faced particular challenges in trying to keep their employees healthy and able to continue working while simultaneously navigating a significant amount of new – and often confusing – legislation, mandates, and executive orders. Due to these challenges, the focus on best practices for day-to-day management of employees has fallen by the wayside for many employers. However, as we approach the two-year mark since the beginning of the COVID-19 pandemic and are beginning to see some light at the end of the pandemic tunnel, now is a great time for employers to revisit these best practices that will enable them to better manage their workforces and reduce the risk of employment-related litigation.
Education through Training
Educating employees through a well-developed training program is one of the best investments that employers can make in their workplaces, particularly in light of the current enforcement environment. The Department of Labor (DOL), the National Labor Relations Board (NLRB) and the U.S. Equal Employment Opportunity Commission (EEOC) are making concerted efforts to share information and work together, which requires employers to be very proactive in managing potential employee issues. The most effective way to do so is by providing training for all employees. Although the federal equal employment opportunity laws do not require employers to conduct anti-harassment/anti-discrimination training, several states and municipalities require and/or encourage training. Training is a great way to reinforce a company’s culture, establish clear expectations, and to educate all employees about acceptable conduct, work rules, and consequences for non-compliance with those rules. Training is also beneficial from a legal perspective to establish an affirmative defense in defending harassment lawsuits. Employers must take reasonable care to prevent harassment from occurring in their workplaces. This requires employers to have policies in place designed to prevent harassment, and courts also look at whether employers conduct anti-harassment training and the frequency and effectiveness of that training.
Training and education must start at the top of an organization. There has to be buy-in from the senior executives in an organization in order for training to be effective. Training of senior level executives is critical as the company’s compliance with employment laws rests in their hands. They must be educated on the specific requirements of employment laws and their individual roles and responsibilities in ensuring the company’s compliance with those laws. Employers should spend time educating managers, supervisors, and team leaders on employment laws and general best practices that they need to know in order to interact with, and manage, other employees such as diversity and inclusion, FMLA/ADA issues, and performance management. Training of non-management and non-supervisory employees will look different from training provided to supervisory employees, but is equally important. At a minimum, employers should train non-management and non-supervisory employees on the various equal employment opportunity laws, examples of acceptable and unacceptable conduct, and the employer’s anti-harassment and anti-discrimination policies and complaint reporting procedures.
In-person training is by far the most effective method of training when practicable. Virtual live training can also be effective if a workforce is spread out across various locations. Recorded trainings are acceptable as a last resort, but not as likely to be effective. When choosing who to conduct training, an outside third party can be an effective resource to provide a different perspective to employees during training. If employers choose to use outside counsel to conduct training, employment litigators that actually see how the courts scrutinize employer policies and training during harassment and discrimination lawsuits can provide an interesting and valuable perspective to employees during training. The trainings should be interactive and provide several examples so that employees leave the trainings feeling equipped to identify and handle various situations that may arise during their employment. All new employees should be trained immediately upon hire regarding harassment and discrimination. Ideally, employers should provide refresher trainings annually and even more frequently when possible.
Auditing Pay Practices
The DOL and NLRB entered into a new Memorandum of Understanding a few months ago pledging to share information regarding unlawful denial of minimum wages or overtime pay, as well as misclassification of workers, among other information. (Memorandum of Understanding Between The U.S. Department of Labor, Wage and Hour Division and The National Labor Relations Board; https://www.dol.gov/sites/dolgov/files/WHD/MOU/MOU_NLRB.pdf). If you are an employer involved in a proceeding in front of one of these agencies, you could face a dual threat of an enforcement action in front of the other agency under certain circumstances. The federal government’s focus on pay practices this year reinforces the need for employers to make it a priority to focus on auditing and updating their pay practices to ensure compliance with all applicable laws.
Pay equity and transparency have become increasingly significant legislative priorities, as an increasing number of states have passed laws prohibiting employers from inquiring about job applicants’ previous salaries and/or requiring inclusion of salary ranges in job postings. In 2021, some states went so far as to require employers to affirmatively state the applicable wage rate on any job posting. This is something to continue to watch in all states where employers conduct business as this is a likely a trend that will continue. If employers have any concerns about current pay practices, they may want to consider conducting a pay equity audit. While this may sound daunting to do for an entire company, an audit can be conducted by department, location, certain job titles, etc. Once the scope of the audit is determined, employers should look at how their prior and current payroll practices are being implemented, and which employees are actually in similarly situated positions. After the similarly situated employees are identified, then employers can evaluate if there are any disparities based on age, gender, race, or any other protected categories, and take corrective action to remedy those disparities. We recommend involving legal counsel in a pay equity audit from the very beginning in order to keep the audit privileged. These kinds of pay equity audits may be used to establish an affirmative defense in states with pay equity legislation.
Updating Employee Policies and Job Descriptions
While not always a fun undertaking, it is, nonetheless, essential that employers review and update their employee handbooks each year to comply with all applicable laws. Although federal EEO laws have not undergone any significant recent changes, states and municipalities have been extremely active in enacting their own EEO laws and requirements. As such, multi-state employers must stay on top of ever-changing state and local law requirements. Many states and localities have passed various employment laws over the past year, including laws related to paid family and medical leave, vacation pay rules, sick leave, safe leave, and anti-harassment, and these laws have specific requirements such as policy requirements, complaint processes, certain training requirements, notice requirements, and publication requirements. Updating employee handbooks each year, whether internally or through outside counsel, not only helps ensure that employer policies are up-to-date, but also ensures that employers are staying abreast of any legislative changes from the past year that will impact the workplace. Again, while perhaps a tedious task, it is also an invaluable one to go through each year.
Now is also a great time to reevaluate if contractors and exempt employees are still correctly classified under all applicable wage and hour laws given the shift in salaries and job duties that may have occurred over the past two years. While it sounds simple, it is critical to ensure that all exempt employees are still meeting the salary and duties requirements of their positions under the FLSA and any applicable state laws. Accurate and up-to-date job descriptions are critical to this analysis. Job descriptions are key documents in FLSA litigation, but there are other practical reasons to have accurate job descriptions. Both employers and employees need to understand what is truly required for a particular position. Employers can tailor their hiring processes toward the specific needs of the role. Accurate job descriptions combined with effective annual performance feedback results in better performance management. Job descriptions also play a significant role in evaluating accommodation requests under the ADA and determining the essential job functions of each position.
Understandably, many of the best practices discussed in this article have not been top-of-mind for employers over the past two years, but it is important to revisit these practices in 2022 as they are essential for ensuring compliance with all applicable laws and effectively managing employees.
This article was originally published in HR Professionals Magazine (March 2022). For more information related to these topics, access the recording of our recent webinar, Returning to Familiar Waters: Best Practices for Proactively Managing Workplace Issues and Minimizing the Risk of Employment-Related Litigation.