Employment Legal Checklist

Whether your company has 5 or over 500 employees, it is very important to ensure that your company’s employment, HR, and benefits policies and procedures are in compliance with regulatory laws to reduce the risk of potential liabilities and employee claims. The following checklist offers steps for evaluating your employee management practices to help with your company’s compliance with employment matters. There may be additional state and local specific laws and regulations that apply to your business, some of which may set forth additional obligations other than those described below.

Houston Business Attorneys

#7 - Failure to get the proper documentation on employees.

--- ENTREPRENEUR.COM - FEBRUARY 2017

9 Common Legal Mistakes Business Owners Make

HIRING

  • Job descriptions, advertisements, and interviews must be ADA compliant and meet federal and state requirements.

  • Employment applications must be in compliance with any applicable state laws regarding prohibited questions or statements.

  • All interview questions must be appropriate and related directly to the position and the applicant’s ability to perform the job’s essential function. Questions must not discriminate based on race, sex, religion, age, ethnic group, national origin, marital status, military service, disability or other protected status.

  • Written authorization must be obtained for background checks and Fair Credit Reporting Act requirements, along with any state requirements for conducting background checks.

  • Policies and procedures related to drug testing, use of arrest and conviction records, and other candidate-information requests must comply with applicable federal and state law.

  • Evaluate all recruitment and hiring strategies, policies, and procedures to ensure compliance with federal and state nondiscrimination laws.

  • Job offers should be reviewed by an HR specialist or a lawyer with employment law experience.

  • Form I-9s must be completed for all new employees.

  • All necessary tax forms (e.g., Form W-4 and any state forms) must be collected from new employees.

  • Orientation/onboarding programs for welcoming new employees to familiarize them with the company’s basic management practices, culture, and goals.

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EMPLOYEE PAY

  • Job descriptions, advertisements, and interviews must be ADA compliant and meet federal and state requirements.Employees must be properly classified as exempt or non-exempt based on their specific job duties and compensation (Note: Job titles are not sufficient to determine an employee’s exempt or non-exempt status).

  • Review all pay practices, including minimum wage and overtime compensation, for compliance with the Fair Labor Standards Act and any state laws.

  • Employee pay periods (weekly, bi-weekly, semi-monthly) must be scheduled to comply with state wage payment timing requirements.

  • Pay and incentive programs must treat employees equitably, and decisions regarding promotions and merit raises must be clear and based on objective criteria.

  • Independent contractor relationships must be carefully reviewed to prevent misclassifications as an employee.

BENEFITS

  • Employee benefit plans (medical, vision, dental, and retirement) must comply with all requirements under federal and state law, including the new Health Care Reform Act notices and other requirements for group health plans.

  • Employment applications must be in compliance with any applicable state laws regarding prohibited questions or statements.All benefit plan documents, including enrollment forms and employee communications, must be accurate, consistent and in compliance with applicable laws.

  • Summary plan descriptions and other benefit plan notices must be distributed to employees as required under federal and state law.

  • All reporting and filing requirements relating to medical and retirement benefits are complied with.

  • Employees are provided required notices regarding continuation of health coverage under COBRA or state laws.

  • Ensure legal compliance of company policies and procedures for paid vacation, holiday, flex-time, telecommuting, sick leave, and other such benefits.

  • Policies, procedures, and information regarding benefits are communicated and applied to employees fairly and consistently.

EMPLOYEE POLICIES AND PROCEDURES

  • All company policies and procedures must comply with federal and state labor laws related to employee leave and vacation, equal employment opportunity, sexual harassment, worker safety and other requirements.

  • Every employee must be provided with a handbook explaining the company’s policies and procedures related to standards of conduct, nondiscrimination, benefits and other terms and conditions of employment. Employees should also sign a receipt acknowledging that they’ve reviewed the handbook.

  • Labor law posters must be displayed appropriately under federal and state laws and posted where employees can easily see them.

  • Procedures must be in place for maintaining employee records and files as required by law to maintain confidentiality and compliance with data privacy laws. In addition, medical records and other confidential employee documents must be kept separate from employee personnel records.

  • Employees must receive the necessary skills and regulatory training, including safety and harassment.

  • Human resource policies and procedures must equally apply to all employees and must be applied fairly and consistently throughout the company.

PERFORMANCE REVIEWS

  • Performance reviews must be conducted for all employees on a regular basis.

  • Job expectations and responsibilities must be clearly communicated to employees, including the conduct and results required for the job and the performance standards by which they will be measured.

  • Systems for measuring performance must be in place (e.g., sales quotas), based on the specific job-related functions and criteria set in the employee’s job description.

  • Employee job descriptions should be reviewed and updated at least annually.

  • Documentation regarding employee performance should be kept for each employee and should be direct, factual, and detailed to support disciplinary and other employee-related decisions.

  • Employee performance reviews should be based on specific, job-related criteria and feedback must be honest, factual, complete and accurate.

  • Performance should be compared to the job description and goals with ongoing feedback.

  • Employee review process and systems for measuring performance should treat all employees equitably.

EMPLOYEE DISCIPLINE AND TERMINATION

  • All policies and procedures for handling employee disciplinary actions and investigations should be clearly defined, written and communicated to employees.

  • All matters involving employee discipline warnings, investigations, and terminations must be carefully and accurately documented.

  • Termination meetings should be conducted to inform the employee of the termination, for the return of company property, delivery of any final paycheck, and to facilitate the employee’s departure. A summary of the meeting and any related information should be prepared and placed in the employee’s personnel file.

  • Departing employees should be provided with a written summary of accrued benefits and notices regarding post-termination benefits in compliance with applicable federal and state requirements.

  • Policies should be in place for collecting keys and other company property from the terminated employee and to deactivate access to computer systems, email and/or voicemail systems.

  • Final paychecks should be delivered at the time of termination or as otherwise required by law.

  • Neutral references confirming a former employee’s position held and dates of employment should be available upon request in accordance with company policy.

  • All discipline, investigation, and termination policies should be in compliance with applicable federal and state laws and should be enforced fairly and consistently.

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