5 Common Mistakes That Come with High HR Legal Risks 3 Feb 2018
You’ve got a job to do, but there’s trouble at every turn. One wrong move and you’ll trigger an alarm. Trip up and the local authorities will be there in no time flat. Really mess up and the Feds could get called in. Stumble and you could set off a landmine. All these threats aren’t for the weak, and you know you must stay on top of your game to survive in this profession.
a) an army colonel
b) a professional robber
c) an HR professional
While it might be nice to dream of being George Clooney in “The Peacemaker” or the “Ocean’s Eleven” series, you call yourself an HR pro by day. It might not be as glamorous as being a Hollywood star, but it certainly isn’t without its excitement. In fact, some people call HR a legal minefield — one wrong move and you have a mess of nightmarish proportions, from embarrassing news stories to massive settlements that can reach into the millions of dollars.
There are many ways to trip up in the human resource profession, but some mishaps are more easily made than others. Here are five common mistakes that come with massive HR legal risks.
The hiring process is complex, so it comes as no surprise that even the most savvy HR pros make mistakes from time to time. While some mishaps are simply poor practice, others have real legal consequences. One of the easiest places to make mistakes is discrimination, even if unintended. Make sure all job ads are free of suggestive terms, such as those regarding a person’s age or ethnicity. During an interview, never ask about personal characteristics. For example, “Are you married?” should not be a topic of discussion you bring up. While HR professionals may be educated in non-discriminatory interview tactics to reduce hiring risks, managers may not be. Be sure to educate all members on your hiring team through training and reference materials.
Running an employment background check is standard practice for many companies and for good reason: You verify the person’s credentials and ensure they don’t have a concerning criminal history before they are hired, or you use a third-party company like Trusted Employees to conduct the background check. The problem is, you must follow specific guidelines set by the Fair Credit Reporting Act (FCRA). This includes how you get permission to conduct a background check from a candidate and even how and when to alert them that something negative was found that is taking them out of consideration for the job. Trip up here and you could end up at the receiving end of a lawsuit. To make matters more complex, some states have specific laws regarding background checks and other aspects of the hiring process, so you must know all regulations.
To avoid hiring risks, you must always properly fill out Form I-9. This is used to verify the identity and employment authorization of people hired for employment in the United States. Keep in mind, some forms of identification are acceptable and others are not. All employers must ensure proper completion ofForm I-9 for each individual they hire within three days of their start date. Penalties are high for companies that aren’t I-9 compliant, and given President Trump’s focus on immigration, I-9s should be top of mind for HR professionals. Remember, I-9 forms must be kept for at least three years after the employee’s hire date or one year after termination, whichever is later.
If you’re in HR, you know the importance of payroll. Employees want to get paid and you better believe you’ll hear about it if they don’t. Pay-related lawsuits are increasing in the United States. One of the reasons is due to technology. Hourly employees may clock time while onsite but also while at home because they now have the ability to work wherever they choose, depending on the profession. They may embellish hours, or claim they were not paid properly for work done at home or elsewhere. The key to negate this problem is to set clear company policy and guidelines all employees must follow. Keep in mind, if employees are classified as being eligible for overtime pay and they work overtime, you have to pay them. If it’s not approved, you can discipline them in an alternative way and make sure they know that in the future, they are not allowed to do so or it may cost them their job.
Sometimes the hardest part of an HR professional’s job is when an employee’s time at the company must come to an end. Termination is difficult no matter what the circumstances. However, there are many missteps that can occur when letting an employee go, and some come with steep legal consequences. Messy firings can cost far more than the employee’s salary, so it’s smart to conduct the process with dignity and follow the law closely. Avoid surprises. For example, if you’re letting en employee go for subpar work, make sure they’ve been warned many times prior to the meeting. If they have been hearing great feedback but then are let go for not doing well, there’s a disconnect. During the actual meeting, bring more than one person so there is a witness, but not so many to make the meeting uncomfortable. Afterwards, consider writing a memo summarizing what was discussed on both sides, including next steps if necessary.
Robyn Kunz is the Chief Compliance Officer at Trusted Employees. She has worked in the background screening industry for over 15 years and holds Advanced Certification in the Fair Credit Reporting Act from the National Association of Professional Background.
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