Legal Ease New Year Workplace Resolutions


By Richard D. Alaniz


what they will do to improve in the months ahead. Generally, it involves pledges to diet more, eat healthy, exercise more, make more quality time for family, and similar personal commitments. But what we will do to improve our workplace in the coming year?


I


Too often workplace policies are only considered in the context of some negative workplace action when it is actually occurs. Whether our current policies are adequate for dealing with issues in the most regulated area of our economy, today’s workplace, rarely is explored or even considered before- hand. This article is intended to serve as a reminder of some of the more sig- nificant workplace issues that should equally bear serious consideration for resolution as we enter a new year.


Handbook Policies


What should the conscientious em- ployer be reviewing and considering as we enter a new year? The first con- sideration should be whether the cur- rent employee handbook or


similar


document is adequate for addressing the issues that routinely arise in most workplaces. Do we have policies that would pass muster under the current regimen of both state and federal regu- lation? For example, are the company’s anti-harassment policy and procedures adequate to qualify for the affirmative defense against harassment that is avail- able under U.S. Supreme Court prece- dent? Currently, in order to avoid liabil- ity for unlawful workplace harassment, an employer must demonstrate that it acted reasonably in seeking to pre- vent and promptly address any claims of unlawful harassment. To do so, an


30 ❘ January 2018 ®


t is a common occurrence with the start of every New Year that people make personal


resolutions about


employer must have in place a compre- hensive “no harassment” policy and a reasonable procedure for employees to file a complaint regarding any improp- er conduct. Additionally, the employer must show that it acted promptly to ef- fectively address an alleged violation of the policy. How long has it been since you reviewed and updated your an- ti-harassment policy? Are you certain that all employees know of the policy and how to make a complaint? Have you included the option to take a com- plaint to any member of management? Sometimes the issue is with their super- visor. A female employee may want to speak to a member of management of her gender. In general, if you have not reviewed and updated your employee handbook and the specific policies set out there within the last three years, it probably contains policies that are out- dated or it is lacking policies that are needed in today’s workplace.


Off-The-Clock Work Most employee handbooks, unfortu- nately, rarely address one of the issues that many employers are dealing with today, pay liability for off-the-clock work.


federal Fair Labor Standards Act, such as California.


A proper policy should require that


no employee engage in overtime work without prior written authorization. Similarly, it should caution against any off-the-clock work, with a clear indica- tion that violation of the policy will re- sult in disciplinary action. Repeated vi- olations should warrant termination. An employer is required to pay for all work performed, even if done in violation of a company policy. Disciplinary action is the proper and only legal manner of addressing the issue.


a claim, few employees are even aware that it may be an issue.


Until they are confronted with Numerous


wage and hour lawsuits have been filed across the county, some as class ac- tions, alleging that employees routine- ly performed work-related tasks either before or after the regular work day, and were not compensated for such work.


In most cases, it is a claim for


overtime, which would entitle a suc- cessful claimant to liquidated damages (double damages) and attorney’s fees. Such claims are relatively easy to make and usually come from a terminated, or disgruntled employee. These cases are particularly prevalent in states that have wage and hour laws that go beyond the


Reviewing Local and State Laws Another step that all businesses should undertake before the New Year is to re- view state and local laws to determine whether any new laws will affect you. Frequently, state and local governments choose to have new laws take effect at the beginning of the year. In 2018, several states have minimum wage in- creases that will take effect on or by January 1 including Alaska, Arizona, California, Colorado, Florida, Hawaii, Maine, Michigan, Missouri, Montana, New York, Ohio, Oregon, South Da- kota, Vermont, and Washington. Sev- eral laws will take effect in California next year including a “ban the box” law (prohibiting employers from ask- ing about criminal history), a law ex- panding parental leave, and a law ex- panding sexual harassment training requirements. Without a review of the laws that may be changing, you may be caught off-guard and face unexpected penalties.


Employee Bonuses and Annual Reviews January is often a time for bonuses and annual reviews for some employees and a time when employees may reevalu-


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