There are a variety of questions to ask and practical tips that you might want to implement to safeguard your business from potentially costly litigation and the heartburn associated with it. Of course, the size and nature of the business and a variety of other factors dictate the issues and particular laws that apply, but there are certain matters that may have general applicability to most employers. Consider the following:
Review the recruiting process
How do you hire your employees? Is it newspaper ads, employment agencies, union hiring halls, word of mouth? Do these sources provide a cross section of the community? Do you have an EEO statement?
Employment applications
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Does your employment application reference employment at will and include a statement that all information must be true and accurate at risk of denial of hire or termination after hire? Does it improperly solicit information that would likely violate anti-discrimination law such as the applicant's age, marital status, number of children, disabilities, religion or religious beliefs, citizenship and national origin?
Train your interviewers
Under Alaska common law, wrong representations by interviewers to employees can transform the employment relationship from "at will" to one that requires just cause for termination.
Clean up personnel files
Whether the claim is before a discrimination agency or in court, one of the first requests for production is for the claimant's personnel file. Does it contain any material that it should not such as health records or affirmative action statistical information?
Review the employee handbook
The debate goes on over whether it is a good idea to have an employee handbook. For a variety of reasons, I believe that employee handbooks are a good tool for most employers. They provide one "go-to" resource for all employees, supervisors, managers and business owners alike to consult with respect to policy. They are pro-active and provide a place where you can incorporate policies that are useful defenses to claims. However, if they are not written properly, they can and will be used against you. If you have a handbook or adopt one this year, consider including the following:
An EEO policy;
A sexual harassment policy;
A good Internet and e-mail policy;
A non-competition agreement;
A confidentiality policy or agreement;
An alternative dispute resolution policy; and
A drug-free workplace policy.
Conduct a wage and hour audit
One of the places employers can be quite vulnerable is where employees are misclassified under wage and hour law. Typically this occurs when an employee is thought to be exempt from the right to collect premium pay for overtime work. With liquidated damages and penalties and the burden favoring the employee, these can be costly mistakes. One way to minimize risks of such claims is to periodically review all the job positions to determine whether they truly are exempt.
Provide sexual harassment training
There are a variety of resources for training in this area, including consultants and various law firms that provide this training. This training provides a strong defense to a claim and, better yet, may prevent a claim in the first place.
Review the discipline and termination process
Do you have a pre-termination checklist? Have you adopted progressive discipline and if so, is it consistent with the employment at will policy?
Put up the poster
Employers are required by state and local law to post notices with respect to employee rights. The Department of Labor has made this easy by preparing a multiple use poster which can be put on the company bulletin board.
While many of these questions and answers may apply to most employers, each situation is unique. They are by no means meant to be an all-inclusive list. Employers should consult their legal advisor to assure they make the correct choices for them. The old saying applies: an ounce of prevention is worth a pound of cure.
Paul S. Wilcox chairs the employment law practice group at the law firm of Hughes Thorsness Powell Huddleston & Bauman LLC in Anchorage. He can be reached at 907-274-7522.
