How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Hogge Law 500 E. Plume Street, Suite...

How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit

Raymond L. Hogge, Jr.

Hogge Law500 E. Plume Street, Suite 800

Norfolk, Virginia 23510(757) 961-5400

A law firm specializing in serving the needs of

Virginia public and private employers

IMPORTANT NOTICE:This presentation is intended to be used

solely for informational purposes, and is not offered as legal advice.

For assistance in conducting an employment law audit,

contact attorney Raymond L. Hogge, Jr. at

(757) 961-5400

Benefits of An Employment Law Audit

Benefits of An Employment Law Audit Minimize the risk of employment-related lawsuits

Benefits of An Employment Law Audit Reduce employment-related costs (recruiting,

training, unemployment comp, workers' comp, legal expenses)

Benefits of An Employment Law Audit Improve productivity, efficiency, morale, and

retention

Benefits of An Employment Law Audit Management can sleep at night

Goals of An Employment Law Audit

Goals of An Employment Law Audit Determine whether policies and practices

comply with applicable federal, state, and local laws

Title VII of Civil Rights Act of 1964

15 employee minimum

Race, color, sex (including pregnancy), religion, national origin

Americans with Disabilities Act

15 employee minimum

Pre-hire; conditional offer of employment; post-hire

Critical concepts: Disability, reasonable accommodation; undue hardship

Rehabilitation Act

Applies to certain employers with government contracts or grants

Similar to ADA

Age Discrimination in Employment Act

20 employee minimum

Age 40 or older

Family and Medical Leave Act

50 employee minimum

Covered employers, eligible employees; qualifying reasons for leave

Notification requirements

Certification requirements

Fair Labor Standards Act

Minimum wage

Overtime compensation

Child labor

Recent changes to exemption rules for minimum wage and overtime compensation

Davis-Bacon Act (certain government contractors)

Prevailing wage rate

Government Service Contract Act (certain government contractors)

Prevailing wage rate

Employee Retirement Income Security Act (ERISA)

Employee benefit plans

Consolidated Omnibus Budget Reconciliation Act (COBRA)

20 employee minimum

Health care continuation coverage

Internal Revenue Code

Payroll taxes

Employee benefit plans

Immigration and Naturalization Act

Form I-9

Constitutions(public employers)

Due Process

Equal Protection

Free Speech

Religious Freedom

Virginia Workers' Compensation Act

Reporting injuries and accidents

Physician panel

Handling claims; assessing defenses

Actual Risk; not positional risk

Return to work strategies

Virginia Unemployment Compensation Act

Resignation

Termination

Misconduct

Virginia Payment of Wage Law

Virginia Human Rights Act

Local Ordinances

Goals of An Employment Law Audit Determine whether policies and practice meet

requirements of contracts or grants

Prevailing wage rates

Affirmative action

Goals of An Employment Law Audit Determine whether policies meet the needs of

the organization

Goals of An Employment Law Audit Determine whether practices match policies

Goals of An Employment Law Audit Determine whether policies are adequately

communicated to employees

Framework for the Audit

Framework for the Audit The Employee Handbook

The Employee Handbook should define the employment policies

The employment policies should define the employment practices

The employment practices should

Comply with applicable law

Promote the interests of the employer

Audit Employee Handbook

Audit Employee Handbook Should reflect all policies and practices of the

employer

Hiring and promotion

Performance and evaluation

Discipline and discharge

Dispute Resolution

Wages and benefits

Safety and health

Audit Employee Handbook Should contain contract disclaimer

Audit Employee Handbook Should contain reservation of employer right to

modify policies

Audit Employee Handbook Should contain statement that employee

benefits are governed by applicable master plan documents and insurance policies

Audit Employee Handbook Should contain employment-at-will policy

Audit Employee Handbook Should contain acknowledgment form to be

signed by employee

Acknowledge receipt

Read before beginning work

Contract disclaimer; employer right to revise

At-will

Violation of policies results in discipline or discharge

If questions, will ask

Audit Employee Handbook Should be distributed to each employee before

he or she begins work

Audit Employee Handbook Publication method

Easy to track changes

More expensive than online

Online

Tracking changes requires diligence

Less expensive than print

Audit Employee Handbook Should give the best possible impression of the

employer

By example, shows employees the level of quality the employer expects

Should be suitable for use as recruiting tool

Audit EEO Policies and Practices

Audit EEO Policies and Practices General EEO policy and practices

Title VII

Age Discrimination in Employment Act

Equal Pay Act

State statutes

Local ordinances

Contractual requirements

Audit EEO Policies and Practices Sexual (and other) harassment policy and

practices

Reporting system

Investigation procedures

Temporary measures

Confidentiality

Rights of accused v accuser

Use of dispute resolution procedures

Audit EEO Policies and Practices Affirmative action policy and practices

If and only if applicable

Audit EEO Policies and Practices Disability accommodation policy and practices

Pre-hire

Post-hire

Essential functions of job identified in job description?

Interactive process

Audit EEO Policies and Practices Non-retaliation policy and practices

Audit EEO Policies and Practices Incorporation of

Grievance procedure

Open door policy

Arbitration

Audit Job Descriptions

Audit Job Descriptions Are the job duties clearly stated?

Most important duties should be listed first

Audit Job Descriptions Are all essential functions of the job identified?

Reliable time and attendance

Physical demands

Interpersonal skills

Audit Job Descriptions Do the requirement of the job as stated in the

job description have the effect of discriminating against applicants on the basis of any protected status (race, sex, disability, etc.)?

Audit Job Descriptions If the job is FLSA-exempt, does the job

description clearly demonstrate the exemption is applicable?

Audit Hiring Practices

Audit Hiring Practices Assessment of recruiting methods

Promotion v. posting v. advertisement

Use of recruiters

Contract between employer and agency

Use of staffing agencies

Contract between employer and agency

Legal duties of employer and agency

Allocation of risk between employer and agency

Use of professional employer organizations

Contract between employer and PEO

Legal relationship between employer, PEO and worker

Allocation of risk between employer and PEO

Contents of advertisements legal?

Statement discriminatory

"EEO" statement required?

Affirmative action required?

Have federal or state contract?

Receive federal or state funds?

Audit Hiring Practices Assessment of application forms

Should state how long application considered active

Should contain employment-at-will disclaimer

Should contain falsification or omission of information provision

Should contain authorizations necessary for information verification, reference checks, credit reports

Should contain authorizations necessary for

Information verification

Reference checks

Credit reports

Should contain arbitration agreement, if arbitration of employment disputes is desired

Should not contain potentially discriminatory questions, e.g.:

Workers' compensation history (ADA)

Medical conditions (ADA)

Arrest records (Title VII)

Marital status (Va. Human Rights Act

Audit Hiring Practices Assessment of selection process

Interview procedures and questions should be determined in advance and consistently applied

Interview questions should be job-related

Interview questions should reflect job requirements set forth in written job description

Consider using written job description during interview

Interviewers should make written record of all relevant information

Interviewers should not record information which could be interpreted as discriminatory or otherwise unlawful or inappropriate

Medical information

Should follow 3-stage process required by ADA

Pre-offer

Conditional offer of employment

Post-hire

Should ensure strict confidentiality

All tests given to applicants should reflect job duties stated on written job description

Tests should be assessed to identify potential issues under ADA, Title VII, etc.

All reference should be checked

Written record should be made of all information received

Credit checks should be performed only in strict compliance with applicable law

Selection should be based upon job-related criteria stated in the written job description

Audit Hiring Practices Assessment of employment documents

Hiring should be confirmed in writing (letter / form)

State job title

State date of hire

State rate of pay

State FLSA exempt / non-exempt status

Refer to employee handbook

Refer to arbitration, if used

Use written employment contracts for executive and highly compensated employees

Contract will supersede all prior agreements

Specify how employment may be terminated

Consider non-compete and non-disclosure

Consider buy / sell if ownership interest

Have contracts reviewed by attorney first

Non-compete agreements

Restrictions must be no greater than necessary to protect employer interests

Restrictions must not unduly interfere with employee ability to earn a living

Restrictions must not be against public policy

No "blue pencil" in Virginia

Non-disclosure agreements

Protect confidential information and trade secrets

Consider for executives, sales, and technology personnel

Do not make overbroad

Arbitration agreements

Consider using arbitration agreements to reduce litigation costs

Specify arbitration protocol

Specify disputes subject to agreement

Specify disputes not subject to agreement

Consent to drug / alcohol testing

Specify types of testing (random, post-accident, etc.)

Meet requirements for regulated industries (e.g., trucking)

Proof of citizenship

Form I-9

Personnel file

Maintain separate medical file

Audit Evaluation Practices

Audit Evaluation Practices Evaluations should follow schedule stated in

employee handbook

Audit Evaluation Practices Evaluations should be based upon job duties

stated in written job description

Audit Evaluation Practices Evaluations should be in writing, using

established forms and rating systems

Audit Evaluation Practices Evaluations which call for improvement should

be followed by a written corrective action plan

Audit Evaluation Practices Employees should be able to use grievance

procedure to challenge evaluations with which they disagree

Audit Evaluation Practices Evaluations should be confidential, and shared

only with managers and supervisors who have a need to know

Audit Disciplinary Practices

Audit Disciplinary Practices Employee discipline should be based upon

standards of conduct stated in employee handbook

Audit Disciplinary Practices In most circumstances, progressive discipline

should be used

Egregious offenses may support immediate termination

Audit Disciplinary Practices Discipline should be applied consistently

Audit Disciplinary Practices Employees should be able to use grievance

procedure to challenge disciplinary actions with which they disagree

Audit Termination Practices

Audit Termination Practices Dismissal should be supported by adequate

documentation of the reasons for dismissal

Prior documentation in personnel file

Written notice of termination

Audit Termination Practices Employees should be able to use grievance

procedure to challenge termination actions with which they disagree

Audit Termination Practices Dismissal should be conducted in person when

possible

Two members of management

Audit Termination Practices A written record should be made of the

employee's response to dismissal or reason for resignation

Audit Termination Practices Exit interviews should be conducted when

possible

Written exit interview form

Two members of management

Audit Termination Practices Safeguard employer property

Documents

Equipment

Computer passwords

Audit Termination Practices Employee's personal items

Supervise removal

Audit Termination Practices Payment of wages

Audit Dispute Resolution Practices

Audit Dispute Resolution Practices Grievance procedure

Grievance forms - clear and understandable?

Offender by-pass included?

Public employers - grievance procedure should reflect applicable statutory and due process requirements

Audit Dispute Resolution Practices Open-door policy

Relationship to grievance procedure explained?

Audit Dispute Resolution Practices Arbitration (if employer uses arbitration)

Arbitration agreement enforceable?

Arbitration agreement signed by all employees before beginning work?

Audit Wage and Hour Practices

Audit Wage and Hour Practices Applicable Laws

Fair Labor Standards Act

Portal to Portal Act

Equal Pay Act

Federal statutes applying to federal contractors and recipients of federal funds (e.g., Davis-Bacon Act)

Audit Wage and Hour Practices Fair Labor Standards Act

Regulations govern:

Minimum Wage

Overtime Pay

Child Labor

Assess whether hours worked are calculated correctly.

Calculated on workweek basis

De minimus (20 minute) breaks = working time

Training time

Travel time

Other specific situations

Assess whether leave practices violate FLSA

"Comp time"

Available to public employers

Not available to private employers

Assess whether employees are correctly classified as FLSA-exempt

Executive; administrative; professional; others

Must meet specific requirements under Department of Labor regulations

New "Fair Pay" regulations recently adopted

Job duties, not job description, controls

Assess whether employer practices threaten FLSA-exempt status of employees

Deductions for hours off

Pay docking

Assess whether required time and attendance records are being maintained

Audit Wage and Hour Practices Virginia Payment of Wage Law

Frequency of wage payment

Deductions from wage payments

Must be voluntarily authorized in writing

Interpretations by Virginia Department of Labor and Industry

Audit Leave Practices

Audit Leave Practices Identify relevant laws

Virginia Workers' Compensation Act

Title VII (including Pregnancy Discrimination Act) and Virginia Human Rights Act.

Americans with Disabilities Act and Virginians with Disabilities Act

Family and Medical Leave Act

Industry requirements

Audit Leave Practices Identify other considerations

Contracts

Collective bargaining agreements

Workplace safety

Recruiting

Retention

Productivity

Audit Leave Practices Assess leave alternatives

Vacation

Sick leave

FMLA leave

Disability leave

Paid Time Off

Work Comp leave

Military (USERRA) leave

Audit Leave Practices Assess practices for granting leave mandated by

statute

Pregnancy Discrimination Act (Title VII)

Americans with Disabilities Act

Family and Medical Leave

Audit Leave Practices Assess leave documentation

Leave requests

Should specify type of leave requested

Medical certifications

Use standard form

Notification of leave rights and obligations

Audit Safety and Health Practices

Audit Safety and Health Practices Workplace compliant with all OSHA standards?

Fall protection standard

Confined space standard

Bloodborne pathogens standard

Other standards

Audit Safety and Health Practices Safety policies adopted?

Adequately communicated to employees?

Explained in employee handbook or safety manual?

Employees receive regular training?

Safety policies enforced by supervisors?

Audit Safety and Health Practices Workplace violence policies adopted?

Explained in employee handbook?

Supervisors understand how to respond to threats of workplace violence?

Employees understand how to respond to threats of workplace violence?

Audit Workers' Compensation Practices

Audit Workers' Compensation Practices Employer's First Report of Injury or Accident

consistently and timely filed with Virginia Workers' Compensation Commission?

Audit Workers' Compensation Practices Panel of 3 physicians consistently provided to

injured employee?

Audit Workers' Compensation Practices Assess process for returning injured employee to

Should be returned to work as soon as possible

Audit Workers' Compensation Practices Compensability of injury sufficiently assessed?

Was there an "accident?"

Did it "arise out of" employment?"

Remember - Virginia is an "actual risk" state, not a "positional risk" state

Did it arise "in the course of" employment?

Did it result from employee "misconduct?"

Audit Workers' Compensation Practices Assess coordination with Americans with

Disabilities Act and Family and Medical Leave Act

Audit Disability Accommodation Practices

Audit Disability Accommodation Practices Assess "interactive process" to determine ADA

"reasonable accommodation"

Audit Disability Accommodation Practices Assess process for determining "undue hardship"

Audit Disability Accommodation Practices Assess process for determining "direct threat"

Audit Disability Accommodation Practices Assess process for obtaining medical

certifications

Audit Disability Accommodation Practices Assess coordination with FMLA and workers'

compensation

Audit Other Important Employment Practices

Audit Other Important Employment Practices Assess electronic data communications practices

Computers

E-mail

Internet

Audit Other Important Employment Practices Assess workplace security practices

Audit Other Important Employment Practices Assess protection of confidential information and

trade secrets

The final step in the employment law audit Written Employment Law Audit Report, including

factual findings and recommendations for changes in employment policies and practices, is prepared and submitted to management

Management carefully considers the findings and recommendations in the Employment Law Audit Report, and implements appropriate changes, if any, to employer policies and practices

For assistance in conducting your employment law audit, contact attorney

Raymond L. Hogge, Jr. at (757) 961-5400

This presentation may be downloaded at no charge on

VirginiaLaborLaw.com

How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Hogge Law 500 E. Plume Street, Suite...

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