Tips and Reminders for Employers06/04/2014 | Summer 2014 Newsletter
As the number of employment-related lawsuits continues to increase each year, employers must constantly review their policies. Here are five issues that most commonly generate lawsuits, with tips and reminders to help avoid problems.
Avoid Improperly Treating Workers as Independent Contractors.
Employers often get into trouble by treating workers as independent contractors, when they should be treated as employees. The courts look at many factors to decide whether a worker should be treated as an independent contractor versus an employee. Two of the most important factors are usually whether the worker sets his or her own schedule and brings his or her own equipment or supplies. When in doubt, it is best to err on the side of treating a worker as an employee, because penalties for improper classification can be significant.
Keep Time Records and Pay Overtime.
Employers create big problems for themselves if they fail to keep track of workers’ time, because they leave themselves open to exaggerated claims regarding hours actually worked. Also, employers must remember that, when determining whether an hourly non-exempt employee is entitled to overtime in one week, employers cannot carry forward hours from one week to the next week. In addition, if the employer does not want to pay overtime, an employer should not let workers stay at work more than 40 hours each week.
Treat Employees Respectfully.
One of the biggest reasons terminated employees decide to seek legal counsel is that they feel they were humiliated and not treated with respect in the termination process. Employers should conduct the termination process in a manner that does not humiliate the employee. Also, to the extent practical, policies should be applied equally and uniformly to all employees.
Have Written Procedures for Dealing with Co-Worker Harassment.
Employers should have written procedures in their employee handbooks for employees to report co-worker discriminatory behavior. Where appropriate and necessary, employers should consider giving all managers and employees formal sensitivity training regarding discrimination issues.
Keep Proper Work Records.
When a new employee starts, employers should obtain proper documentation, including obtaining a completed I-9 form confirming work authorization. Also, when a new employee starts, and each year in January, New York employers must provide a written notice to each employee, confirming their pay rate, and obtain written acknowledgment from each employee.
About the author: David T. Azrin is a partner at Gallet Dreyer & Berkey LLP. Mr. Azrin represents a range of business clients and individuals on employment, trademark, and franchise law matters. Mr. Azrin is the sponsor of the International Franchise Association’s franchise business network educational program in the New York City area. Mr. Azrin has been repeatedly named one of the top 125 franchise attorneys (“Legal Eagle”) by the editorial board of Franchise Times magazine. Mr. Azrin can be reached at firstname.lastname@example.org.