Employment law can be a thorny subject for employers. With the laws and regulations surrounding employment law changing frequently, it can be difficult to keep up.
My employment law practice involves helping business owners with issues that they may have with their employees. This involves establishing good policies for a respectful workplace, counseling employers if performance improvement issues need to be addressed with an employee, and conducting an investigation if there are allegations that someone has been the victim of harassment or discrimination.
Here are some of the most common issues employers face:
- Classifying your employees: Employee or independent contractor?
Typically, the first time a business owner reaches out to me is when they’re hiring their very first employee. Many business owners opt for hiring independent contractors because they don’t want to deal with payroll taxes. However, if you mistakenly categorize a worker as an independent contractor when they should be an employee, it could be costly. Employers face penalties, fines and potential lawsuits. The Department of Labor, the IRS, and the Minnesota Dept of Revenue could be knocking on your door if payroll taxes were supposed to be taken out and they weren’t.
- Setting the tone: Job and workplace expectations
Once a business reaches the five- to ten-employee level, we begin to encounter potential issues between how the employees, managers and supervisors interact. Performance issues or even misconduct can result from not clarifying the expectations and the culture of your company upfront. Having protocols, policies and job descriptions for your employees could save your company from lawsuits down the line.
- Hiring employees: Taboo subjects to avoid during job interviews
It’s simple: don’t ask an applicant anything you wouldn’t ask a complete stranger, especially if the applicant is from a protected class. For example, if the applicant has an accent, don’t ask what country they’re from. If the applicant is a woman and is wearing a wedding ring, don’t ask if she intends to have children. There’s an asterisk here: If the applicant offers the information, you don’t have to pretend he or she didn’t say it. You simply cannot make a hiring decision based on it.
- Documenting evidence: Keep it neutral and contemporaneous
Allegations of discrimination or having to fire someone for performance issues or misconduct can be complicated. The first step is to create clear expectations and job descriptions for every employee. For example, if your employees are constantly late to work, giving them a warning and letting them know that if it continues, it will result in their termination is a good business practice.
Sometimes employers will play favorites. For example, Sally gets put on a performance improvement plan because she’s been late five times, but Derek doesn’t, even though he’s been late a bunch of times too. That’s going to raise an inference that there’s a discriminatory reason for Sally’s treatment. The employer has every right to discipline one employee for being late. But if you’re not treating people equally, there is always a possibility that someone can raise the inference that your decision was discriminatory.
If all you have is somebody’s word about what happened, it becomes difficult to defend against that type of claim. That’s why it’s so important to have job descriptions and expectations, and to document instances of employees not following them at the time of the incident.
- At-will employment: What does this really mean?
Minnesota is an “at will” employment state. Simply put, this means that an employee can quit for any reason or no reason, and an employer can fire for any reason or no reason. However, it really isn’t that simple.
An employer can fire someone for any legal reason or no reason. You cannot fire someone based on their race, familial status, religion, national origin, sexual orientation, color, disability, among others. And if you’re firing people for no reason, I would question your business practices. Most likely, you won’t have a great workplace environment.
- Overtime and minimum wage complexities: State and city laws
In Minnesota, any time an employee works more than 40 hours in a work week, they are entitled to overtime pay. Even if the company is headquartered outside of Minnesota, the employer must adhere to Minnesota law. Despite how well-meaning the employer is, not paying overtime according to Minnesota law can result in lawsuits and penalties.
Currently, Minneapolis and St. Paul are seeking to impose their own minimum wages on employers. It’s changing fast, which can be tricky for employers. Checking in with your employment lawyer from time to time will ensure that you are being proactive and compliant with any local, state, or federal laws.
For more information, check out my video below:
Have questions about employment matters at your company? Contact us today.