Employer Mistakes Plaintiff’s Lawyers Love to See

There are certain mistakes that a plaintiff’s lawyer love to discover. Below is a short list of common errors made by employers that are avoidable.

Pre-Employment Mistakes
Failure to conduct an adequate background check. Whether it’s a pre-employment physical, criminal, credit or reference check many of these should be done when hiring new employees, especially when it’s related to the specific job.

Inconsistent recruiting and hiring practices. All candidates should be thoroughly screened, while using the same non-discriminatory and non-illegal questions for each candidate.

Inappropriate interview questions. Avoid casual questions that could lead to discriminatory intent. Avoid questions such that are related to arrests, date of birth, ethnicity, race, religious, marital, pregnancy, etc.

Mistakes During Employment
Failure to pay and appropriately identify exempt vs. non-exempt employees. Employers often misclassify exempt vs. non-exempt employees for purposes of overtime. Employers far too often classify someone as salary exempt when in fact they may not meet the qualifications for exemption on a state or federal level. Internal audits by legal counsel should be performed at a minimum once a year to verify correct employee classifications.

Failure to implement, disseminate, and follow personnel policies. Many employers don’t have a personnel and/or employee manual which describes rules and regulations of the workplace as well as defines employer obligations under certain federal and state laws. In addition, once personnel or employee manuals are complete, employers fail to implement procedures, get sign off by employees of receipt of the manual, and educate and train managers and supervisors on the contents of the personnel/manual and how to implement the personnel/manual in a non-discriminatory fashion. Don’t make rules up as you go along and avoid the do it yourself attitude. Never have separate rules for different people/classes. Drafting of personnel/manuals should be left to the experts, especially with the assistance and review of legal counsel.

Failure to train employees. Employees should be trained on employment laws that may affect your workplace, such as harassment and discrimination policies. New hires should be trained at hire and all employees should go through training at least on a bi-annual or annual basis.

Failure to provide job descriptions. How is an employee supposed to know what they are responsible for if you don’t tell them? Written job descriptions are also a good tool for performance reviews as well as assessments related to exempt vs. non-exempt wage and hour classifications.

Failure to document promptly and accurately. Document all disciplinary actions, however minor, which directly affects employees. Be objective and provide specific reasons and dates of any employee disciplinary infractions, including violations of the company personnel/employee manual, especially terminations. Just like money has no memory, neither do verbal conversations. Don’t blindside employees later on when you’re mad at them and bring up something they did months ago. When the problem happens meet it head on.

Failure to provide employee performance reviews. Provide employees a performance review at least once per year, and within 90 days of a new hire,. All performance reviews should be documented and any documents used should be consistent throughout the company. Make sure your employees review consists of any problems, and don’t avoid talking about problem issues if the need warrants it.

Failure to provide employees notice under federal or state laws when the law requires. There is an alphabet soup of federal and state employment laws that may directly apply to your business. Not knowing the law is never a defense to any action. Employers must be up to speed and up to date as to their obligations under certain laws, such as the Federal Medical Leave Act and COBRA to mention a few.

Failure to conduct investigations into employee complaints and, when necessary, take prompt remedial action.

Failure by employers to curtail inappropriate use of company email, computers and internet.

-¢ Failure to curtail employee favoritism or inconsistent treatment of employees.

Post-termination Mistakes

Allowing former employees to make copies of their personnel file. Although under Michigan law an employee has a right to their personnel file, many items may be exempt from being required to be in the file. Purge employee files when the state or federal laws statutes allow it. It’s always wise to have legal counsel review the content to determine what should and must be provided and what can be separate from the file.

Conducting an exit interview. Employers should have a standardized exit interview form which allows employees to rate their supervisor and company. In addition, the form should include areas for the employee to fill out asking for any general input about your businesses’ strengths and weaknesses.

Inappropriate internal and external comments. Internal and external comments about ex-employees should be limited to a need-to-know basis. Any negative comments should be avoided and references should be limited to start, end date and title (unless required by specific law such as in the health care industry).

Required Notices. Where applicable, employers must provide notice of COBRA continuation of certain benefits within a certain time period after employees have been terminated. Notices may also be required for other areas as well.

Seth T. Seidell is President and General Counsel for Human Capital, one of Metro Detroit’s 101 Best and Brightest Companies to Work For. He can be reached at [email protected].