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Thursday, December 29, 2011

Top 10 HR Landmines in 2012 and How to Avoid Them

By: Tommy Eden, Attorney

1. Not Being Prepared for a Union Campaign or Harassment Allegation. In December 2011 the National Labor Relations Board (NLRB) adopted the “quickie election” regulations. As a result you need to update your no solicitation policy, conduct effective union avoidance supervisor training and let your employees know how you feel about unions. Once your basic harassment policy and forms are in place, keep in mind that recent EEOC decisions have faulted employers for failure to conduct a prompt and proper harassment investigation, which failure may be may be fatal to your bottom line. All harassment and retaliation claims should be taken seriously, regardless of your personal views.

2. Americans with Disabilities Expanded Protections Not Heeded. Drafting or updating ADA-compliant Job Descriptions should be a top priority in 2012. These documents should serve as the foundation for all effective and defensible decisions involving hiring, performance evaluation, discipline, wage and hour status, promotions, return to duty, FMLA, reasonable accommodations and discharge. Not teaching your HR staff how to do the ADA Regulatory Dance is a real landmine mistake.

3. Making the Bad Hire.
Implement an Effective and Defensible Interview and Hiring Process with the correct training, forms and background checks. Dealing with the “bad hire” can be an expensive nightmare, and turnover is an expense you can control. Remember that past behavior is the best indication of future performance. A “gut feeling” is rarely defensible.

4. Social Networking by Employees without Safeguards. Employee Handbooks and Forms should be submitted for a compliance review every two years. Having the right policies and forms (employment application to policies on social networking, union avoidance, separation, drug testing, workplace disclosure of impairing affect medications, FMLA, texting, reduction in staff, etc) to deal with employee misconduct, and provide government-mandated notices, are critical to your overall risk reduction program. PDF technology has made it more cost effective to electronically update and distribute your handbook and forms.

5. Failure to Implement an Effective and Defensible Discipline and Termination Process.
Supervisory coaching on handling difficult employees is a good risk reduction investment. Not using an Alabama termination process checklist is similar to playing Russian roulette where a jury keeps the score. Also, recognize how and when to use staged payment severance agreements to cut off your liability when you smell trouble with a “sacred cow” employee. Documenting your discipline with an eye toward winning the unemployment compensation hearing should be your top priority to avoid this landmine.

6. FSLA Misclassification by the Uninformed. Failing to Audit Wage and Hour Classifications for Legal Compliance is a big mistake. With the new FLSA enforcement initiatives on independent contractors, and the multitude of misclassification lawsuits around the country, this is a wise risk reduction strategy.

7. Failing to Conduct Performance Evaluation Supervisory Training. Grade inflation is a risk that can come back to haunt you when an employee is terminated and the EEOC, or a jury, questions the decision in light of a 5 star evaluation. Train your supervisors how to effectively conduct these evaluations with a human touch.

8. Not Doing Training, Training, and More Training.
Effective supervisory training on hiring, discipline, harassment prevention, diversity, coaching employees, FMLA, litigation prevention, etc., is a must and your best risk reduction. Jury surveys continue to find that a company that fails to train is negligent.

9. EEOC, DOL, OSHA, OFCCP, etc Poorly Done Charge Responses often Leads to Even Greater Liability. Remove from your mind any notion that the government is here to help your business. The number of direct legal actions against employees by various agencies of the federal government over the past 2 years is staggering. Professional guidance when a Charge, or investigator, comes in the door is smart business.

10. Alabama Immigration Non-Compliance. The Alabama Immigration Act can permanently put your business out of business if you do not take timely compliance steps. The compliance webinars, articles and training links at will walk you through the process to keep your Alabama Business in Business.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. is a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-241-8030.