News

March 28, 2018 by Lincoln Derr

If you’re a baseball fan, you know that pitchers and catchers have long since reported to either Florida or Arizona, exhibition games are already underway, and Opening Day is right around the corner. Every year since the late 1800’s, baseball teams have migrated south for that magical pre-season ritual known as Spring Training. Spring Training is just that – a series of practices and exhibition games that take place just before the start of the regular season. It’s a time for players and managers to physically prepare for the new season, but also to try out for roster spots, get to know teammates, learn new plays and MLB rules, and set the tone and expectations for the season.

Major League Baseball doesn’t have a monopoly on spring training. In fact, all North Carolina employers should take time early on each year to get their teams ready for the new “season.” Here are Three Simple Tips to get your company in shape for Opening Day:

1. Review Your Game Plan

Spring is a great time to make sure your internal policies are up to date and, more importantly, policies you actually follow. Having a written policy that isn’t consistently enforced can be worse than having no written policy at all. If you don’t have an employee handbook, now’s the time to create one. In North Carolina, employers are not legally required to have an employee handbook, but if you do have one, depending on your company’s size, there are certain policies you must have in it.

Employee handbooks aren’t one size fits all nor are they implement-and-forget-kind-of-documents. Employment law is one of the most rapidly changing areas of law, so pull out that employee handbook and make sure that your policies comply with the most current federal, state, and local laws. Specifically review those policies addressing harassment, discrimination, paid and unpaid leave, drugs and alcohol, ADA accommodations, and background checks.

In addition to compliance with current laws, it’s also important for employers to keep an eye out for Hot Button topics receiving public attention and likely to bring big workplace changes. Several Hot Button workplace issues in heavy rotation at nearly every media outlet include:

• Sexual Harassment in the #MeToo Era
• Gun/Workplace Violence
• Sexual Orientation/Gender Identity as a Protected Class
• Social Media
• First Amendment Rights

Employee handbooks are very inexpensive insurance for when employee issues arise. North Carolina employers who take time to spell out work policies and expectations in advance are more likely to avoid game day surprises.

2. Evaluate Your Roster

Do you know what your employees do each day? Do they know what you expect them to do while on the clock? If not, you might need to draft or revise your job descriptions. A good job description which accurately identifies the essential functions of the job and reflects the duties the employee is actually performing can help you in any number of situations:

• Managing a request for a reasonable accommodation for a disability
• Assisting healthcare providers completing a medical certification in FMLA requests
• Defending against claims of discrimination or unlawful pay disparity
• Providing metrics under which you can objectively evaluate employee job performance

It can also help establish the exempt or non-exempt status or independent contractor of the employee. Why is that important? In the previous 5 years, the U.S.Department of Labor has recovered $1.2 billion in back wages for employees – $270 million in 2017 alone. While the number of wage and hour lawsuits filed in federal court is down for the second year in a row, the number of wage and hour investigations continues to rise with many states looking to join the wage and hour “big leagues” too.

Last summer, North Carolina Governor Roy Cooper signed into law the Employee Fair Classification Act (“EFCA”), which went into effect December 31, 2017.  Under the EFCA, employers employing one or more employees must post information detailing the difference between an employee and independent contractor and how and where an employee may report misclassification claims. Once a claim is received, the Employee Classification Section, the state agency tasked with enforcement of the EFCA, will share the complaint with the U.S. Department of Labor as well as the N.C. Department of Labor, the Industrial Commission, the N.C. Industrial Commission, and the N.C. Division of Employment Security. This high-level sharing of information will undoubtedly increase the exposure and oversight of employers who misclassify employees.

Additionally, those employers requiring state occupational licensing will be required to disclose ECFA investigations on their licensure application documents, which ultimately could lead to a denial of licenses and permits. This is one area in which an employer can’t afford to drop the ball.

3. Invest In Actual Training

Many managers have no idea what constitutes unlawful retaliation, when overtime pay is required, or how an employee’s firmly-held religious beliefs can require a reasonable accommodation just like those offered to employees with disabilities. Annual training for managers and employees as part of an overall compliance program is one of the least expensive and most important preventive measures an employer can take to reduce the risk of government investigations and litigation.

The most common type of training is anti-harassment and non-discrimination training. It is also a necessary component in defending against claims by an employee or former employee. Under the Faragher-Ellerth line of cases, if an employer can show it exercised reasonable care to prevent and promptly correct sexual harassment and the employee unreasonably failed to take advantage of its preventative or corrective policies or program, it establishes an affirmative defense to liability and damages stemming from the employee’s claims.

Regular training on a variety of topics shows an employer is investing in its employees. If an employer trains its employees on the rules of the game and fairly applies those rules, employees are likely to be more productive, require less oversight and supervision, and be better prepared to implement a company’s strategic vision.

Perhaps most importantly, well-trained employees are loyal which makes their “team” more successful.

While you might never play in or even snag a ticket to the World Series, Lincoln Derr can help you keep your “club” at the top of the standings.

It is our place as experienced Labor &Employment attorneys to lead you through the process, protecting your interests every step along the way.