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Employment Law Compliance: 6 Steps to Risk Management

1.Stay Informed via Reputable Experts

There is no acceptable plea of ignorance.  Laws are constantly changing and it is the employer’s responsibility to stay on top of it.  Government sites are improving, but state and federal governments often do not accept responsibility for creating clear communications via websites.  The courts look to reasonable care and actual workplace outcomes; however, complaints can be costly. Secure a source of compliance updates reasonably considered compliance “experts.”

2. Choose the Right Expert Source

Subrogate liability: find an expert willing to “take the fall” and back you. Compliance experts need not be legal counsel as long as they remain committed to advanced legal studies and ongoing compliance research.  HRS has proven it possible to attain 100% success in avoiding legal argument when compliance is deployed at the proactive stage. Reasonable care and due diligence are key. If you determine to use legal counsel as your “experts” and they have pulled you into the fire only to bill you going in and coming out, find new legal counsel or find an alternative remedy.  Insurance brokerages, payroll partners, TPAs and other HR related vendors offer valuable templates and perks for their customers.  Most, however, do not profess themselves as “experts” and non-compliant information potentially coming from them is on your plate, not theirs.  Several of these firms are proven to circulate bad information because it’s just not their problem. If you grab a tax advice flyer at the grocery store, you shall be challenged in holding the store accountable for bad information.  Several HR industry vendors hire HRS and other accredited experts to provide deeper quality risk management for clients. 

3. Reject Cookie Cutter Advice

Compliance is more about judgment than templates.  Non-profits can be a great source of templates and education; however, by the nature of being non-profits, they are ineligible to advocate for any individual client and can only serve the “membership as a whole.” Although we’ve caught one or two professing themselves in the “management consulting” field, please know this is categorically impossible. Take their information as one component of your research and adapt it to your company’s unique variables.  Call upon experts who can bring widespread case studies where you prefer assistance. There are some valuable non-profits, they can be highly beneficial; however, they cannot be a “one stop shop” for your compliance needs.  

4. Document Policies and Incidents

Do not let deniability work against you.   The courts look for evidence and reasonable care in forms of currently compliant employee handbooks, related documentation and proof of receipt.  For top risk management, an employer needs to prove the employee knew what was expected, received no confusing/contradictory messages, was capable of meeting expectations, knew the consequences of failure and chose to fail.  Consistency of enforcement without discrimination is critical.  Incident reports, valid job descriptions and clear compliant performance appraisals are each contributory toolsets.   Legal postings must be up to date and accessible to employees.  (Flat annual fee poster services can be a great partner here.) Maintenance and access to employee files must be controlled on a “need to know” basis according to HIPAA, EEOC, DOL, GINA and countless other emerging and ever-changing standards.  Consider a voluntary compliance review for risk management and to build “affirmative defense” through reasonable care.  Non-profits are ineligible by status to protect individual members/customers, so please do not deploy a non-profit organization in this capacity.

5. Train, Train, Train

Enforce a culture of lifelong learning and properly train employees not only in operations procedures but also in legal compliance to include anti-harassment, risk management, liability aversion, documentation and diversity.  While the employer is not ultimately expected to control each and every workplace action, the employer is held accountable to “reasonable care.”  Proper training averts risks, and the act of training builds “affirmative defense.”  Training by 3rd party experts brings additional reasonable care and promotes exceptional questions and learning. Remember most people are not classroom learners and bear learning threshold of 2.5 hours typicalmaximum.  Consider kinesthetic learning bullets. (Hint and shameless plug: contact HRS!)

6. Stay Current and Prepare for Change

The employer who has been non-compliant and has “never had a problem” is probably due.  Granted those employers are probably not taking the time to read this, invulnerability is a myth. Everyone is vulnerable.  Don’t waive it off. The government is fundraising.  Many people would rather fundraise than work.  Some lawyers are fundraising.  Insurance companies, like any businesses, will protect their interests.  It is your responsibility to protect your own interests as an employer.  Stay up to date with regular compliance reviews for practices and policies. The right 3rd party expert partnership is excellent “reasonable care.” Secure updates and review for compliance regularly. 

Please contact HRS for more information regarding answer desk, compliance review, handbook services, kinesthetic learning bullets to include anti-harassment, referrals to HR partners who rely upon actual experts and other risk management reasonable care programs.

Jessica Ollenburg - Thursday, December 16, 2010