1. Not posting the correct federal posters –
Every employer in the country is required to post five federal posters (EPPA, USERRA, FLSA, EEOC, OSHA), in addition to state-specific posting requirements. Additionally, private employers with 50 or more employees must post the FMLA poster.
2. Storing medical information in employee personnel files –
Personnel files contain a lot of confidential, sensitive information about employees. A lot of employers don’t realize that they are required by law to keep any paperwork pertaining to medical information in a separate file.
3. Failing to report newly hired employees –
Employers are required to report all new hires to certain agencies in the state.
4. Not establishing an at-will-employment relationship –
One of the best ways an employer can protect itself from potential liability is as easy as stating on employment applications, contracts, and handbooks that the company has an “at-will employment” policy (meaning, either the employer or the employee can terminate the employment relationship at any time for any lawful reason).
5. Drafting improperly worded job advertisements, possibly leading to discrimination claims –
Only job-related functions should be listed on a job advertisement. Even seemingly innocent phrases like “young and energetic” can be grounds for a discrimination suit. Employers should avoid phrases that imply characteristics of age, gender, national origin, race, etc. Also, ads should state that the employer is an “equal opportunity employer.”
6. Asking discriminatory or inappropriate interview questions –
There are – approximately – a bazillion things you should not ask in an interview. Small businesses don’t always have the advantage of a trained HR department to carry out the hiring process and a “relaxed interview” could get out of hand if the interviewer is not prepared. Make a list of appropriate questions and stick to it.
7. Misusing employee handbooks –
The most important part of having an employee handbook is enforcing it. A handbook offers no protection to an employer who enforces sporadically. Other simple pitfalls of the handbook include: not having employees sign an acknowledgment of receipt, not having a FMLA policy (which, if you have a handbook, is required by law), getting too specific and not retaining the right to make decisions outside of a list of prohibited activities.
8. Hiring/retaining harmful employees (negligent hiring/retention) –
Small businesses might not know that they can be liable for the actions of an employee whom they reasonably should have known had the potential to harm others.
9. Improperly classifying employees as independent contractors –
Many companies misclassify employees as independent contractors/interns and, as such, do not comply properly with FLSA requirements.
10. Not paying employees for “time worked” –
Each state has specific requirements for meal and rest periods for employees. An employee who is required to answer telephones is not considered relieved of duties during the meal period if he or she continues to be responsible for telephone calls. Even an employee who elects to eat lunch at their desk, and voluntarily answers the phones while “off duty,” may be considered to have engaged in compensable time worked.
General Tips to Avoid Potential Legal Trouble – Keep e-mail professional, treat all employees/candidates equally, and don’t forget to DOCUMENT.