Write it Down - 5 Things Employers Should Put in Writing Today!
October 4, 2016
Even small employers are subject to many legal requirements when it comes to their employees. All employers should consider what policies or other documentation must or should be put in writing. Below are 5 important items that employers should put in writing and distribute to their employees.
1. Notice of Pay Rate – New York Labor Law requires that all private-sector employers provide written notice to all employees upon hire of their rate(s) of pay, designated pay day, the employer’s intent to claim allowances as part of the minimum wage (like tip or meal allowances), and the basis of wage payment (whether paying by hour, shift, day, week, piece, etc.). Employers can be assessed damages by the New York Department of Labor of $50.00 per day per worker if proper notice is not given, and a worker who sues individually for damages can recover up to $5,000. Even for employees outside of New York, providing written notice of the employee’s pay rates is recommended to avoid any potential conflict concerning this information. Written notice should also be provided upon any changes.
2. At-Will Employment – Employment is presumed to be at-will (meaning that it can be terminated by the employer or employee at any time, for any reason), but an ill-worded policy or statement made by a manager may land you in court debating whether a contract for continued employment was created. That is one reason why an at-will clause is a standard provision in employee handbooks. Companies can protect themselves with written statements to the effect of: “No implied, oral, or written statements or agreements contrary to the express language of this at-will provision are valid unless they are in writing and signed by the President of the Company.” Including this language in a handbook and obtaining the employee’s signed acknowledgment of receipt can be critical to defending against a breach of employment contract claim.
3. Vacation and Other Leave Policies - New York Labor Law requires that every employer notify employees in writing concerning the employer's policy on sick leave, vacation, personal leave, holidays and hours. A violation of this requirement can lead to civil penalties. Failure to have such policies in writing can also lead to other unintended consequences. For instance, if an employer in New York does not have a written vacation policy that explicitly states that accrued but unused vacation is not paid out upon termination, the employer will be required to pay out such vacation time. Other leave laws, such as the Family and Medical Leave Act and state and city paid sick leave laws, also require written notification to employees.
4.Harassment Policy – While there is no legal requirement (in most states) for a company to have a written harassment policy, employers do have a general obligation to attempt to prevent harassment in the work-place before it occurs. Having a well-drafted and communicated harassment policy is critical with respect to this obligation, and can be used to support an affirmative defense to federal harassment claims concerning the actions of a supervisor. A harassment policy should set forth the company’s expectations, warn employees of the consequences of inappropriate behavior, explain the reporting process, and prohibit retaliation against employees who come forward with complaints. Training on the company’s harassment policy is also highly recommended (See my post on "Why You Should Provide Harassment and Discrimination Training").
5. Policy on Disability and Pregnancy Accommodations – Complaints of disability discrimination are on the rise and the burdens on employers to accommodate employees with disabilities appear to be ever-increasing. Pregnancy-related conditions must be treated and accommodated just like any other medical condition. It is recommended that employers put forth their accommodation policy in writing, which should inform employees of their obligation to come forward with the need for an accommodation and to actively engage in the interactive process with the employer, including providing medical documentation as requested. [In New York City, employers are required to post or distribute a written notice developed by the City on the rights of pregnant workers to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions.]
Well-written job descriptions setting forth the essential requirements of a job (including any physical demands) that an employee must be able to perform with or without a reasonable accommodation, are also recommended. Such job descriptions can be relied upon by applicants in determining whether they are qualified for a position, by managers in evaluating whether and how to accommodate a disability, and by the courts and administrative agencies in determining the essential functions of a role.
This article addresses just a few of the employment policies that should be in writing. There are many other federal, state and local laws that require notice to employees. And even where written notice is not required by law, it may still be useful to set expectations for employees, avoid conflicts concerning an employee’s entitlement to certain benefits or job “rights”, and/or as evidence in defending against an employee complaint.
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