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INSIGHT

Employment Law Update: The New Year’s Resolutions Edition

By Mike O’Brien  bio

A lawyer and doctor were talking together at a New Year’s party when the doctor complained about how people always asked her for free medical advice. She said to the lawyer, “People probably always ask you for free legal advice…as a fellow professional, how do you deal with it?” The lawyer thought about it, and then said, “I always answer their questions and then send them a bill.” The doctor responded, “Great suggestion, thanks!” The next day at work, the doctor got her mail, opened one envelope, and in it was a bill from the lawyer. We can’t give legal advice by email, or even at a New Year’s party, but here below are five HR law New Year resolutions you can adopt and follow in 2019…and they are free!

#1: Resolve to document better

We are frequently asked to defend clients in lawsuits for employment terminations when the client has not documented at all, or has documented quite poorly, the reasons for the discharge. If you are sued, and it is very common for a lawsuit to follow a discharge these days, this lack of documentation leaves you incredibly vulnerable to all sorts of accusations of impropriety. Employers need to find a way to consistently and accurately document the circumstances of termination. Generally, we recommend that in any termination, an employer should be able to show–by written record–that it has given an employee reasonable notice of job duties and of when they’ve not been done adequately. Your written record should also show how you gave someone coaching and a chance to fix the problems. And finally, your records should show how discharge occurred because the problems were not fixed, or because new ones arose, and should explain how those performance or behavior problems negatively impacted the workplace. In 2019, you should resolve to document better.

#2: Resolve to deal with immigration law

Here is an update from Jones Waldo immigration lawyer Lesley Manley: “Earlier this month, the Department of Homeland Security proposed a new pre-registration rule for H-1B Cap petitions. The rule would create an online registration system for new H-1Bs.  Under the current system, all applicants file their completed applications during the first week of April each year. The agency then randomly selects applications until the annual cap is reached (20,000 for advanced degrees and 65,000 for bachelor’s degree). Any applications not selected for review are then mailed back. Under the new registration system, companies seeking to hire H-1B employees would first create an online registration account and only those selected for review would be invited to submit an application. The proposed rule would also reverse the order by which USCIS selects H-1B applications under the H-1B cap and the advanced degree exemption. The comment period is open until January 2, 2019. It is currently expected that some form of the new registration rule will be in effect by next April, when the 2019 H-1B Cap season starts. Regardless of whether the registration rule is implemented, if you are thinking about hiring, or continuing to employ, foreign nationals who will need an H-1B next year, now is the time to start gathering data and materials to begin work on their applications starting in January 2019. Here’s the proposed rule. In 2019, you should resolve to deal with immigration law.

#3: Resolve to get your basic employment records in order

Certain documents/records are essential for and fundamental to an effective employment relationship. For instance, you need some sort of basic description telling an employee the requirements and goals and functions of his/her job. You need handbooks and/or policies that establish the operating rules of the workplace. You need some sort of system to evaluate how well employees do their work. Employers regularly take these basic nuts and bolts of a work relationship for granted. It is common to see employers who rarely update their job descriptions, or who never evaluate, or then ineffectively assess, a worker’s performance. Employers also promulgate rules or policies that do not reflect current employment laws. In 2019, you should resolve to get your basic employment relationship records house in order.

#4: Resolve to put more humanity in HR

Our good friend (and recovering Utah employment lawyer) Jathan Janove, now an executive coach and management consultant living in Portland, writes a weekly column for the national Society for Human Resource Management (SHRM). His column discusses how HR and legal professionals sometimes miss the point about human resources, which after all actually has the word “human” in it. For example, Jathan points out that we should do sexual harassment training not because the government tells us to do it, but because we want to improve our company culture. He also notes that we should give ADA accommodations and FMLA leave not because the law forces us to, but because we are trying to help our employees in a time of sickness or family need. I think Jathan sometimes is a bit hard in his critique of us HR and legal folks, but his basic point is a fair one. We should comply with the HR laws not because we have to but because more often than not, compliance really is about treating people better…e.g. not discriminating due to race, giving fair wages, not allowing abuse by co-workers. In 2019, you should resolve to find more ways to put humanity back into HR.

#5: Resolve to be educated and to reeducate

The HR law landscape changes regularly. For example, in 2018, courts decided important cases that significantly impact how you can and should accommodate employees with disabilities or what benefits you must give workers. In 2018, regulatory agencies or legislative bodies changed or updated rules on how employers must pay workers, or must deal with various kinds of employee conduct. In 2018, the news media reported on all sorts of workplace issues, putting a spotlight on many different kinds of best and worst practices. How will you find out about such things and make sure your managers, supervisors, and workers know what they need to know about the complex American employment laws? One way, of course, is to keep reading these updates, but you also must get the professional advice you need when you need it…not just over cocktails or cheese dip at a New Year’s bash. In 2019, resolve to invest in the necessary employment law education for you and your workforce.

HAPPY NEW YEAR! All of us at Jones Waldo are grateful to call you clients, colleagues, and friends.


Editor’s picks:

Can your employee handbook help you safely terminate an employee?


How to implement a leave-sharing program


How to investigate an employment-related complaint from a staffer



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