During a general session at the HR in Hospitality Conference, a panel of experts break through the clutter by offering their insight and expertise.
SAN FRANCISCO—How many legal tips can a panel of HR practitioners share during a single general session? The answer, as demonstrated during the 6th Annual HR in Hospitality Conference & Expo, is 50—in as many minutes.
This first of two articles on the subject will highlight tips Nos. 1 through 26, which focus on the areas of hiring; classifications; privacy; leave; the Americans with Disabilities Act; wage and hour law; and harassment.
Tomorrow’s roundup will feature tips Nos. 27 through 50, which focus on the areas of class actions, agencies, traditional labor and terminations.
1. Background checks are routine now, but one size does not fit all, explained Paul Wagner, shareholder of Ithaca, New York-based Stoke Roberts & Wagner. Know the different rules for each jurisdiction.
2. Beware of process and policy around background checks, where decisions might create discrimination issues related to U.S. Title VIII, or the Fair Housing Act, said David Sherwyn, professor of law at Cornell University's School of Hotel Administration.
3. Ensure new hires don’t have restrictive covenants from prior employers, said Gregg Gilman, partner with New York-based law firm Davis & Gilbert LLP. Be sure to tell new hires explicitly, “We don’t’ want your former employers’ trade secrets.”
“We’re seeing more and more of this kind of litigation,” Gilman said, adding it’s very expensive and disruptive to defend.
4. The U.S. Department of Labor’s definition of an independent contractor is not the only factor used in determining who is an employee. The courts use a more expansive test when determining who can file Title VII claims, which prohibits employment discrimination based on race, color, religion, sex and national origin, Sherwyn said.
“The issue here is that people sometimes relax a little bit with contractors,” he said. Even if someone is not directly employed by your organization (i.e. a contractor) that person can still bring litigation against you.
5. In light of increased enforcement by the DOL, companies should have protocols in place before classifying independent contractors, Gilman said. Have a written agreement stating the independent contractor is just that. And avoid the “perma-lancer,” or those permanent freelancers, who are more likely to be classified as regular employees, he said.
6. Self audit often, said Ilene Berman, a partner with Atlanta-based Taylor English Duma LLP. Annually review any exempt employee with “assistant” in the name as well as sous chefs and sales managers. Those are the positions most frequently targeted by plaintiff attorneys.
7. Check local and state laws because exempt in other states does not mean exempt in California, said Nancy Yaffe, partner with Los Angeles-based Fox Rothschild LLP. California is a different beast, she added. You have to analyze employee classifications on a continuous basis.
8. Have a strong social-media policy and apply it consistently, Yaffe said. Any policy should include 1) no expectation of privacy of any information, 2) company equipment is company property 3) non-disclosure of confidential and proprietary information, and 4) anti-harassment policies.
9. The U.S. National Labor Relations Board is trolling for social-media policies that infringe upon Section 7 rights, which protects the ability to organize, protest or take part in grievances, Wagner said. Don’t discipline for social-media criticisms of the employer without legal review.
10. Be careful of regulating off-duty conduct, as it might violate certain state laws, Berman explained. Thirty-two states regulate some type of off-duty conduct, she said.
11. Watch out for retaliation under the U.S. Family and Medical Leave Act. It’s a fast-growing claim for which plaintiffs’ lawyers are setting the trap, Berman said. Courts are usually sympathetic to this type of retaliation claim.
12. Carefully manage the interrelationship between the ADA, FMLA and Worker’s Compensation laws, Yaffe said. Don’t assume compliance with one law will preempt compliance issues with others.
13. If you want to use the key employee exception, which allows employers to deny reinstatement if it will cause the organization severe financial pain, you must make that designation before the employee’s leave, Berman said.
But given that leave is usually shorter than the time required to recruit, screen, hire and a replacement onboard, using the key exception is not something she recommends.
14. New regulations expanded the definition of a disability, Sherwyn said. Err on the side of coverage.
15. Have a process for reasonable accommodations, Berman said. But if you know an employee might need an accommodation, his or her failure to use the process does not absolve you of having to make the accommodation. Engage your employees in this process, she added. Courts frown upon organizations that sit back and wait for employees to come to them.
16. Always maintain an active dialogue and detailed records of all reasonable accommodation requests and related ADA discussions and decisions, Yaffe said. Show how you are accommodating different people in different circumstances. This allows you to show a court you’ve treated employees fairly across different situations.
17. The U.S. Equal Employment Opportunity Commission is focusing on inflexible leave policies, so now is the time to review and revise yours, Gilman said.
18. Don’t be too quick to fire an employee on extended leave of absence, Gilman explained. You risk running afoul of ADA requirements if you do so. Document the entire process to ensure more protection.
Wage and hour
19. Gratuity means tips that go to servers. Do not use the term when you mean administrative or service charges, Yaffe explained. “A tip is a tip, and a service charge is a service charge,” she said. Tips do not go into the regular rate for overtime, but service charges do.
20. Service charges might have to go to servers, but case law continues to make it more difficult for the “house” to keep the service charge, Wagner said. The best practice is to have the service charge go completely to the servers involved in the service. If you’re likely to keep a house charge, call it an “administrative fee.”
21. The only way to effectively avoid a wage and hour suit is to audit regularly and fix potential problems, Wagner said.
22. Watch out for legislation that requires employers to notify employees of exempt/nonexempt status, Yaffe said. There are many areas within that paperwork that could be a trap. For example, use the official business name of the employer as opposed to, say, the name of just the hotel.
23. Be aware of local and state laws that have a lower threshold to establish claims for hostile work environments and individual liability, Gilman said. The trend is highlighted by a recent case in New York in which the court found state law to be more expansive than federal law.
24. Strong reporting and investigation policies still provide the best defense for harassment, but they have to be implemented fairly and consistently, Berman explained. “Have a central depository for all complaints, and train your supervisors to report any claims of harassment, retaliation, discrimination to human resources.”
25. The best defense for discrimination charges is a strong investigative and review protocol, Sherwyn said. Courts look kindly on employers who can demonstrate appropriate actions.
The Cornell professor highlighted a recent study that examined 31 cases where an employee complained. The employers won in 26 instances because they responded to the initial complaint so well.
26. Although not required under federal law and only in some states, mandatory training is rapidly becoming part of the expectation for a successful employer’s defense of “reasonable care” in ensuring a harassment-free environment, Wagner said.
On Thursday HotelNewsNow.com will highlight tips Nos. 27 through 50, which focus on the areas of class actions, agencies, traditional labor and terminations.