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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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit Minimize the risk of employment-related lawsuits
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit Reduce employment-related costs (recruiting,
training, unemployment comp, workers' comp, legal expenses)
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit Improve productivity, efficiency, morale, and
retention
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit Management can sleep at night
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Americans with Disabilities Act
15 employee minimum
Pre-hire; conditional offer of employment; post-hire
Critical concepts: Disability, reasonable accommodation; undue hardship
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Rehabilitation Act
Applies to certain employers with government contracts or grants
Similar to ADA
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Age Discrimination in Employment Act
20 employee minimum
Age 40 or older
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Family and Medical Leave Act
50 employee minimum
Covered employers, eligible employees; qualifying reasons for leave
Notification requirements
Certification requirements
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Fair Labor Standards Act
Minimum wage
Overtime compensation
Child labor
Recent changes to exemption rules for minimum wage and overtime compensation
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Davis-Bacon Act (certain government contractors)
Prevailing wage rate
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Government Service Contract Act (certain government contractors)
Prevailing wage rate
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Employee Retirement Income Security Act (ERISA)
Employee benefit plans
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Consolidated Omnibus Budget Reconciliation Act (COBRA)
20 employee minimum
Health care continuation coverage
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Internal Revenue Code
Payroll taxes
Employee benefit plans
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Immigration and Naturalization Act
Form I-9
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Constitutions(public employers)
Due Process
Equal Protection
Free Speech
Religious Freedom
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Virginia Workers' Compensation Act
Reporting injuries and accidents
Physician panel
Handling claims; assessing defenses
Actual Risk; not positional risk
Return to work strategies
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Virginia Unemployment Compensation Act
Resignation
Termination
Misconduct
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Virginia Payment of Wage Law
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Virginia Human Rights Act
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practices
comply with applicable federal, state, and local laws
Local Ordinances
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies and practice meet
requirements of contracts or grants
Prevailing wage rates
Affirmative action
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies meet the needs of
the organization
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether practices match policies
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit Determine whether policies are adequately
communicated to employees
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Framework for the Audit
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Framework for the Audit The Employee Handbook
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Framework for the Audit The Employee Handbook
The Employee Handbook should define the employment policies
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Framework for the Audit The Employee Handbook
The Employee Handbook should define the employment policies
The employment policies should define the employment practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Employee Handbook
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
Other
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Employee Handbook Should contain contract disclaimer
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Employee Handbook Should contain reservation of employer right to
modify policies
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Employee Handbook Should contain statement that employee
benefits are governed by applicable master plan documents and insurance policies
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Employee Handbook Should contain employment-at-will policy
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Employee Handbook Should be distributed to each employee before
he or she begins work
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Employee Handbook Publication method
Easy to track changes
More expensive than online
Online
Tracking changes requires diligence
Less expensive than print
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices Affirmative action policy and practices
If and only if applicable
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices Disability accommodation policy and practices
Pre-hire
Post-hire
Essential functions of job identified in job description?
Interactive process
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices Non-retaliation policy and practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices Incorporation of
Grievance procedure
Open door policy
Arbitration
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Job Descriptions
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Job Descriptions Are the job duties clearly stated?
Most important duties should be listed first
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Job Descriptions Are all essential functions of the job identified?
Reliable time and attendance
Physical demands
Interpersonal skills
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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.)?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Job Descriptions If the job is FLSA-exempt, does the job
description clearly demonstrate the exemption is applicable?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of recruiting methods
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of recruiting methods
Promotion v. posting v. advertisement
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of recruiting methods
Use of recruiters
Contract between employer and agency
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of recruiting methods
Use of staffing agencies
Contract between employer and agency
Legal duties of employer and agency
Allocation of risk between employer and agency
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of recruiting methods
Use of professional employer organizations
Contract between employer and PEO
Legal relationship between employer, PEO and worker
Allocation of risk between employer and PEO
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of recruiting methods
Contents of advertisements legal?
Statement discriminatory
"EEO" statement required?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of recruiting methods
Affirmative action required?
Have federal or state contract?
Receive federal or state funds?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of application forms
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of application forms
Should state how long application considered active
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of application forms
Should contain employment-at-will disclaimer
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of application forms
Should contain falsification or omission of information provision
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of application forms
Should contain authorizations necessary for information verification, reference checks, credit reports
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of application forms
Should contain authorizations necessary for
Information verification
Reference checks
Credit reports
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of application forms
Should contain arbitration agreement, if arbitration of employment disputes is desired
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of application forms
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of selection process
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of selection process
Interview procedures and questions should be determined in advance and consistently applied
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of selection process
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of selection process
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of selection process
Medical information
Should follow 3-stage process required by ADA
Pre-offer
Conditional offer of employment
Post-hire
Should ensure strict confidentiality
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of selection process
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.
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of selection process
All reference should be checked
Written record should be made of all information received
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of selection process
Credit checks should be performed only in strict compliance with applicable law
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of selection process
Selection should be based upon job-related criteria stated in the written job description
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of employment documents
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of employment documents
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of employment documents
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of employment documents
Non-disclosure agreements
Protect confidential information and trade secrets
Consider for executives, sales, and technology personnel
Do not make overbroad
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of employment documents
Arbitration agreements
Consider using arbitration agreements to reduce litigation costs
Specify arbitration protocol
Specify disputes subject to agreement
Specify disputes not subject to agreement
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of employment documents
Consent to drug / alcohol testing
Specify types of testing (random, post-accident, etc.)
Meet requirements for regulated industries (e.g., trucking)
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of employment documents
Proof of citizenship
Form I-9
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Hiring Practices Assessment of employment documents
Personnel file
Maintain separate medical file
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Evaluation Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Evaluation Practices Evaluations should follow schedule stated in
employee handbook
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Evaluation Practices Evaluations should be based upon job duties
stated in written job description
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Evaluation Practices Evaluations should be in writing, using
established forms and rating systems
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Evaluation Practices Evaluations which call for improvement should
be followed by a written corrective action plan
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Evaluation Practices Employees should be able to use grievance
procedure to challenge evaluations with which they disagree
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Evaluation Practices Evaluations should be confidential, and shared
only with managers and supervisors who have a need to know
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices Employee discipline should be based upon
standards of conduct stated in employee handbook
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices In most circumstances, progressive discipline
should be used
Egregious offenses may support immediate termination
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices Discipline should be applied consistently
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices Employees should be able to use grievance
procedure to challenge disciplinary actions with which they disagree
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Termination Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Termination Practices Dismissal should be supported by adequate
documentation of the reasons for dismissal
Prior documentation in personnel file
Written notice of termination
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Termination Practices Employees should be able to use grievance
procedure to challenge termination actions with which they disagree
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Termination Practices Dismissal should be conducted in person when
possible
Two members of management
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Termination Practices A written record should be made of the
employee's response to dismissal or reason for resignation
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Termination Practices Exit interviews should be conducted when
possible
Written exit interview form
Two members of management
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Termination Practices Safeguard employer property
Keys
Documents
Equipment
Computer passwords
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Termination Practices Employee's personal items
Supervise removal
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Termination Practices Payment of wages
Virginia Payment of Wage Law
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices Grievance procedure
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices Grievance procedure
Grievance forms - clear and understandable?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices Grievance procedure
Offender by-pass included?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices Grievance procedure
Public employers - grievance procedure should reflect applicable statutory and due process requirements
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices Open-door policy
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices Open-door policy
Relationship to grievance procedure explained?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices Arbitration (if employer uses arbitration)
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices Arbitration (if employer uses arbitration)
Arbitration agreement enforceable?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices Arbitration (if employer uses arbitration)
Arbitration agreement signed by all employees before beginning work?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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)
Virginia Payment of Wage Law
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices Fair Labor Standards Act
Regulations govern:
Minimum Wage
Overtime Pay
Child Labor
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices Fair Labor Standards Act
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices Fair Labor Standards Act
Assess whether leave practices violate FLSA
"Comp time"
Available to public employers
Not available to private employers
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices Fair Labor Standards Act
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices Fair Labor Standards Act
Assess whether employer practices threaten FLSA-exempt status of employees
Deductions for hours off
Pay docking
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices Fair Labor Standards Act
Assess whether required time and attendance records are being maintained
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Leave Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Leave Practices Identify other considerations
Contracts
Collective bargaining agreements
Workplace safety
Recruiting
Retention
Productivity
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Leave Practices Assess leave alternatives
Vacation
Sick leave
FMLA leave
Disability leave
Paid Time Off
Work Comp leave
Military (USERRA) leave
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Leave Practices Assess practices for granting leave mandated by
statute
Pregnancy Discrimination Act (Title VII)
Americans with Disabilities Act
Family and Medical Leave
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Safety and Health Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Safety and Health Practices Workplace compliant with all OSHA standards?
Fall protection standard
Confined space standard
Bloodborne pathogens standard
Other standards
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices Employer's First Report of Injury or Accident
consistently and timely filed with Virginia Workers' Compensation Commission?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices Panel of 3 physicians consistently provided to
injured employee?
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices Assess process for returning injured employee to
work
Should be returned to work as soon as possible
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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?"
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices Assess coordination with Americans with
Disabilities Act and Family and Medical Leave Act
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices Assess "interactive process" to determine ADA
"reasonable accommodation"
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices Assess process for determining "undue hardship"
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices Assess process for determining "direct threat"
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices Assess process for obtaining medical
certifications
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices Assess coordination with FMLA and workers'
compensation
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Other Important Employment Practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Other Important Employment Practices Assess electronic data communications practices
Computers
Internet
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Other Important Employment Practices Assess workplace security practices
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
Audit Other Important Employment Practices Assess protection of confidential information and
trade secrets
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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
How to Conduct an Employment Law How to Conduct an Employment Law AuditAudit
Raymond L. Hogge, Jr.
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