As an employer, you strive to be above board and do the right thing by your employees, but alas, lawsuits may still become a reality if you’re not familiar with the pitfalls of the system. To avoid common legal traps in the workplace, remember to do all of the following:
- Capture all the time worked by any non-exempt employees you have. Any work that is performed by these employees in their “off time” must be recorded, even if it happens en route to work, such as having a work-related conversation on the phone while commuting. Only the most trivial interactions may be excluded from this.
- Try to avoid building too much of a “firewall” around the department or third-party administrator that processes FMLA leave requests, no matter how tempting it may seem to do so. These firewalls can cause poor communication between the FMLA administrator and Human Resources, which can lead to wrongful dismissals, and these are often a sure precursor to lawsuits. To be on the safe side, always verify with your FMLA administrator that an employee does not qualify for leave before terminating them based on
- Remember to engage in the “interactive process” under the Americans with Disabilities Act, even if it seems counterintuitive to use.
- Remember that concerted activity is protected by law. If any two (or more) employees complain about the same issue that pertains to workplace conditions (a certain boss, the temperature of the building, hours worked, etc.) it counts as concerted activity, even if that’s not what the employees were trying to achieve per se. Punishing employees for this kind of activity is strictly illegal, even if those employees are not protected by a union.
- Never retaliate after an employee makes a complaint that aggravates you. This may be tempting, if an employee makes frequent complaints or seems to be acting to get another fired simply because he or she does not like the individual (such as accusing them of sexual harassment wrongfully, or some other serious allegation), but if you write up the offending employee for these complaints or for being slightly late the following day, you may wind up in legal trouble for retaliation (unless you can prove the original complaint was made in bad faith, but this tends to be quite challenging to accomplish).
- Be aware that the employment-at-will doctrine is full of exceptions, so you cannot default on it to protect you from all unjust termination accusations. Also remember that you cannot require employees to be part of a union or pay union fees; it must remain optional.