The 10 most common legal mistakes HR makes

Practical advice about current employment law
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Human Resources

The 10 most common legal mistakes HR makes

The human resources department has a host of responsibilities. Juggling them is often overwhelming, to say the least. One small misstep could cost the company hundreds, thousands and even millions of dollars. Knowing in which areas of HR's numerous responsibilities the most common pitfalls lurk goes a long way to ensuring that you don't fall into these traps.

#1: Advertisements, Interviews and Offer Letters

Mistake: improper language in job advertisements. Too many employers still use inappropriate terms — such as "girl," "boy" or "young" — in their job advertisements. This is particularly true when managers, rather than HR, write the ads.

Mistake: unlawful interview inquiries. Too many hiring managers ask about personal and/or protected characteristics during job interviews, which sets the employer up for a discrimination lawsuit if the applicant is not hired.

Mistake: inaccurate description of the job. Some hiring managers work so hard to get top-notch recruits in the door that they fail to be realistic with their description of the job. The unhappy employee will leave, and it will have been a shameful waste of the employer's time and money.

Mistake: inadvertent creation of contractual promises. Too many employers include language in their job offer letters that inadvertently creates an employment contract. For instance, mentioning a yearly salary implies a yearly contract.

It's bad enough you have a dozen fires to put out every day. You need to be your own lawyer, too? Sure do. The stakes are that high. Get one little thing wrong and you could be threatened with multimillion-dollar lawsuits. Of course, you can always throw in the towel and hire a lawyer, then grit your teeth as he or she turns on the clock. A good HR lawyer charges, what? $500 an hour? More?

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#2: Wage and Hour Issues

Mistake: misclassification of workers. Exempt vs. nonexempt status: Finding and correcting these mistakes are a Trump administration priority. While there are many factors to consider, you're basically basing your determination on the employee's level of responsibility and/or training and a salary test.

Mistake: mandating confidentiality of wage information. Prohibiting employees from discussing their wages is a violation of the National Labor Relations Act.

#3: Privacy Assumptions and Violations

Mistake: permitting an expectation of electronic privacy. Too many employers fail to advise employees to expect no privacy on their computers. If you asked employees, "Do you think the stuff you put into that computer is private?" you might get some interesting answers.

Mistake: improper electronic monitoring. Some states have statutes that require employers to give employees notice if they are being monitored electronically.

Mistake: inadvertently revealing private employee information. HR possesses a great deal of sensitive information about individual employees. It is your duty to keep that information confidential.

#4: Training and Performance

Mistake: failure to train supervisors. When supervisors are not trained, they're the ones who get you into trouble. They may say rude, racist or sexist things, or be unintentionally discriminatory; and because they are in a supervisory position, the entire company is on the hook.

Mistake: misleading performance evaluations. If you try to discipline an employee for a performance/behavior problem that was never noted on their evaluation, your hands may be tied.

#5: Rough Beginnings and Sharp Endings

Mistake: sloppy start. Among HR's common errors in this area are: failing to submit the state notice of a new hire, failing to tell the employee the key terms and conditions of employment, and providing the employee with a misleading description of working conditions.

Mistake: sloppy finish. Regardless of whether a termination is voluntary or involuntary, always allow the employee to leave with dignity.

#6: Investigations

Mistake: failure to oversee supervisory investigations. As an HR professional, you know that timeliness and thoroughness are important in an investigation. But what about when a supervisor is the one investigating, not HR? It's still HR's responsibility to provide oversight.

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#7: Record-Keeping/I-9 Issues

Mistake: failure to document past practices. Courts love to know not only whether the treatment of an employee was against the law or company policy, but also whether it was in line with past practices.

Mistake: failure to comply with Form I-9 requirements. Failure to complete the I-9 form properly and failure to keep the form in a separate file are common mistakes employers make.

#8: Breakdowns in Communication

Mistake: failure to keep employees in the loop. Forgetting to notify employees about policy/procedure changes, outcomes of investigations/discipline issues or unsatisfactory behavior or work quality can be a costly slip-up.

#9: Accommodations

Mistake: failure to explore accommodations. "Accommodation" can be defined as "a determination in favor of the employee." Employers should explore accommodation options when an employee: has a disability, is pregnant, is called to active military duty or has a family member called to active military duty, or wants to engage in a religious observance/practice.

#10: Noncompete Agreements

Mistake: unreasonable scope. Obviously, an agreement prohibiting an employee from working at any position in the same general industry forever and ever isn't going to hold water.

Mistake: lack of consideration. Legally, contracts are valid only if both sides give something. If the employee gives up his or her right to compete, the employer must also give something. Too often, the employer gives nothing, making the noncompete agreement invalid in a court of law.

With Employer's Practical Legal Guide, you'll avoid legal pitfalls using the self-audits and checklists that appear throughout — more than 80 of them. These simple questions tell you straightaway whether your actions may be pointing you toward legal trouble.

Same with model policies. Adapt them for your organization with a mere tweak or two. Why in the world would you wish to reinvent the wheel? 

Employer's Practical Legal Guide approaches every HR legal question from the point of view of you, the employer.... Get your copy today!
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