Employers should consider these eight steps when reviewing your employment law practices. These should be your cornerstones when developing practices within your organizations for legal compliance related issues.
- Develop a Culture of Compliance: The fabric of your organizational thinking must be woven from the threads of uncompromised obedience to the law. This mindset is developed from the top of the organizational structure. If understanding legal obligations are clearly important to the leadership, the front-line managers and employees will expect compliance to be the standard.
- Communicate Effectively: Another way to think about this is the idea of “Speaking with One Voice.” Your entire organization must earn language of compliance. Employees at all levels in the organization need to speak the language. A critical component of effective communication is teaching supervisors good active listening skills. This s key because many of the compliance-related problems of business are understood by lower-level employees. Managers that listen and actively respond to employee comments on compliance-related issues avoid compounding the issues and can usually resolve them quickly.
- Educate and Train: Most of the employment laws discuss training employees about not only their responsibilities, but their rights in the workplace. Many laws require that certain “education and training” must be provided at least annually. Effectively teaching legal compliance will be improved if the worker understands the why they are required to conduct the organization’s business in compliance with the law.
- Establish Written Policies: Make sure that all written policies are drafted in compliance with all state and federal laws. The law is changing rapidly. It is important to develop a method of staying up to date on both the changes in the law and pending legislation. Written policies should be reviewed at least annually and amended as the changes to the law dictate.
- Develop Standard Operating Procedures: Duties related to anything that can be tied to a compliance issue should be written in a step-by-step format and the managers and employees must be trained. A critical step to assist in demonstrating solid compliance practices in court will be to clearly and consistently document your training. An auditing governmental agency loves to subpoena Standard Operating Procedures, so when you adopt standard procedures make sure they are consistently utilized and enforced.
- Internally Audit: Audits are an excellent business practice and demonstrate a willingness to be accountable to legal obligations. However, be careful when deciding how to conduct a compliance audit. Audits are not always about the math in your payroll department. Annual internal audits of all sorts of practices and documents are a must. Internal corrections must accompany these audits when errors are found. It is very difficult to defend a mistake when an audit that has been subpoenaed demonstrates management was aware of the issue and ignored it. Additionally, consider having the audit conducted by outside legal counsel. This may provide some protection in litigation due to attorney-client privilege.
- Establish Reasonable Basis: When addressing how your organization operates within the confines of legal compliance, be able to answer the question: “What made you think you could do it that way?” If an operational practice does not comply fully comply with the law, it is usually ineffective to argue that you have adopted the illegal practice because of your past experience or because it appeared to be permissible based upon an internet search.
- Legal obligation verification: Verify all information three times using three credible sources. It is usually best to review information and guidance available on the website of the governmental agency charged with enforcing the various employment laws. Additionally, many HR consultants and law firms have developed some fairly sophisticated websites to provide compliance-related information to clients and the business community.
In summary, if you are a business with employees, you must know the law! The courts have consistently ruled that employers who do not follow written policy and procedure, provide training, and consult sources which are credible enough to be quoted in court will stand a much greater chance of losing a legal challenge. I encourage employers to get educated about the way they administer employment law practices and policies in today’s evolving litigious society. Telling an auditor or a judge “This is the way we’ve always done it” or “I didn’t mean it that way” is no an effective defense. Unfortunately, this is often the only response employers who do not plan for legal compliance can rely on.