Resolved: Your 2016 employment compliance goals

It’s the New Year and…like last year…you’ve resolved to get your employment law house in order (and, of course, exercise more). The “experts” say that the best way to keep your resolutions is to write them down. So, to help you achieve your 2016 employment law compliance goals, we’ve written down six key action items for you.

1. Review your employment application

Let’s ease into these resolutions with something that’s not too taxing. Reviewing your employment application is more important than many employers realize for the following reasons:

• A well-drafted employment application protects the company by establishing the at-will employment relationship, limiting the time period to file a lawsuit (yes, it’s permissible in many states!), and confirming that information provided is truthful.
• On the other hand, too many employers are still using applications that create risk by seeking impermissible information, such as dates of graduation or medical details.
• On top of that, employers need to pay attention to changes in the laws that can affect employment applications. For example, a number of states and localities now prohibit criminal history questions on applications.

The bottom-line is that if you haven’t reviewed and updated your employment application in the last few years, it’s time to do so.

2. Audit I-9 Forms

Your first resolution was a breeze, so now you’re ready for something a little more challenging. While completing an I-9 form may seem straightforward, I-9 forms are frequently completed incorrectly. Most errors result from simply leaving a required question blank. A good resource for an I-9 audit is the USCIS Handbook for Employers.

You’ve got so much to do, why prioritize an I-9 audit? Penalties for I-9 form violations can be significant ranging from $375 - $3,200 per worker for a first offense, to $4,300 - $16,000 per worker for a third offense. Further, a pattern or practice of hiring, recruiting or referring unauthorized aliens for a fee is a criminal violation. Enough said on that!

3. Review your payroll practices for FLSA compliance

You’re on a roll and ready to tackle something really challenging…so spend some time reviewing your payroll practices to ensure Fair Labor Standards Act compliance.

The FLSA rules can be daunting and even the most diligent employer may have embedded pay practices that are, well, wrong. Here are a few examples of payroll practices that often trip up employers:

• Pay for travel and training time
• Break time practices
• On-call time
• Deductions for uniforms
• Rounding practices

4. Check federal and state postings

Let’s lighten it up a bit. Many federal and state employment laws and regulations require employers to display posters informing employees of certain rights. These posting requirements vary based on an employer’s size, the type of work performed, and whether the employer is a federal government contractor.

A change in the law – such as an increase in the minimum wage – typically means a new poster is necessary. The federal Poster Advisor is a good place to start your review, and then move on to this list of state employment poster requirements.

5. Update handbook policies

If you’ve resolved to do a thorough job, then let’s face it, you have to review your employee handbook. A well-written and up-to-date employee handbook communicates policies, establishes expectations and, significantly, helps protect an employer from legal risk. A poorly drafted handbook does the opposite.

With various federal agencies taking aggressive positions on employment policies and including handbook reviews in routine audit, why not update your handbook to ensure that your policies will pass scrutiny. Some considerations to keep in mind:

• Do equal employment policies address reasonable disability accommodations, pregnancy discrimination, and retaliation?
• Do confidentiality or other policies unduly limit employees’ ability to discuss wages and other terms of employment?
• Do timekeeping policies clearly address working time issues in the age of electronic communications?

6. Evaluate data security

Let’s bring these resolutions home with an issue that’s on everyone’s mind: data security. Is this an employment law compliance issue? Of course, it is! In fact, a recent survey found that employee error is the most common reason for data breaches.

What can you do to enhance your company’s data security? An effective data security plan requires up-to-date and effective policies and procedures to address employee-related risk. Start by really reading the company’s confidentiality policies and agreements. Do they cover the type of data your company keeps in 2016? Next, look at which employees are subject to these policies and agreements, and determine if that’s sufficient to protect your company.

And, here’s a suggestion directly from the Department of Homeland Security: “conduct a regular review of employee access and terminate any account that individuals do not need to perform their daily job responsibilities.”

If you keep up your resolve and make it through these resolutions, you’ll be ready to run a marathon…okay, you won’t, but you will have a less (employment) risky 2016. Happy New Year!