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Ten New Year’s Resolutions for Human Resource Professionals

Posted by Attorney David McClurg in Employer-Employee Relationship, Human Resources, Business Management, Labor Relations / Comments

1)         I will focus on improved documentation to support employment decisions.


2)         I will routinely engage employees with physical or mental impairment in an interactive process to evaluate potential accommodations.


3)         I will ask job applicants about potential accommodations (but never about the existence or nature of any disability) ONLY if:

a) I reasonably believe the candidate has a need for accommodation because of an obvious disability;

b) I reasonably believe the candidate may need accommodation based on a disability the candidate has voluntarily disclosed to me; or

c) the candidate asks for accommodation. I will ask candidates to demonstrate or explain how they would perform the essential functions of the position only if I ask this of all candidates for the position;


4)         I will be prepared to post the new “Employee Rights under the National Labor Relations Act” poster on or before April 30, 2012 (the most recently announced implementation date after a second delay by the NLRB based on a request from the Federal Court hearing a legal challenge to the NLRB Rule requiring this posting.)

5)         I will carefully evaluate potential misclassification of employees as independent contractors under the varying tests applied for purposes of payroll tax withholding, payment of minimum wage and overtime, and worker’s compensation and unemployment insurance coverage.

6)         I will eliminate “off the clock” work and “comp time” practices that can lead to wage and hour claims.


7)         I will help my company’s managers avoid retaliatory decisions based on an employee’s exercise of protected rights, including both union and non-union employees’ right to engage in concerted protected activity”.

8)         I will inform only those managers with a “need to know” about an employee’s complaints, requests for leave or participation in other protected activities in order to avoid claims that decisions by others outside this group were made in retaliation for the protected conduct.

9)         I will avoid online reference checks that may provide decision makers with information regarding applicant’s protected status which could subsequently support discrimination claims by rejected candidates.

10)       I will comply with “compensable time” rules, including:

a)         Time clock rounding - policy must be balanced and not result in routine underpayment of wages;

b)         Time for training and seminars must be paid unless:


  • Attendance is outside regular work hours;
  • Attendance is voluntary:
  • The substance of training is not directly related to the employee’s job; and
  • The employee does not perform productive work during participation in the program.

c)         Meal breaks of 30 minutes or more can be uncompensated only if the employee is completely relieved from duty. Note: if the employees take three 10 minute breaks instead of one 30 minute break, the break time must be compensated.

d)         “On call” time is compensable unless the employee can use the time effectively for his or her own purposes; and

e)         Unauthorized overtime in violation of company rules may subject the employee to disciplinary action, but does not allow the employer to withhold payments for the hours worked.

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