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How long do I need to keep job applications for people I don’t hire?
At least one year. Resumes and job applications, even for individuals you don’t hire, should be held for a minimum of one year.
What advice do you have for a supervisor who may have to fire an employee?
If you decide you need to terminate an employee, I first suggest you bring a witness, such as another manager, to the meeting. You want to keep the meeting as brief as possible. This is not a time for discussion. The decision has been made, and there’s no going back. Also, you want to treat the departing employee with compassion. Being let go is upsetting, and a poorly handled termination can make matters worse.
What are the laws around drug testing applicants?
Federal law prohibits asking about job candidates’ health before a job offer is made, so you can only conduct a drug screening after a potential employee has received a conditional job offer. State in your offer letter that employment is conditional on passing a drug and alcohol test. State and local laws about pre-employment drug and alcohol screening vary widely, but most require it to be done by a state-certified laboratory. Companies also must put their drug and alcohol testing policies in writing and obtain consent from job applicants before conducting these tests. Along with your job offer letter, include a separate written notice and consent form for the candidate to sign that includes the details of the drug testing procedure, explains what you are testing for, and releases your business from any legal liability if you decide not to hire the candidate as a result of the test outcome. And remember: If you conduct pre-employment drug screening for one job candidate, you must require it for all candidates or you could be accused of discrimination.
Do I need to send Form I-9s into the government?
No. You don’t have to submit Form I-9 to the government, but you do need to keep it on file. I recommend keeping all your employees’ I-9 forms in a separate file — and not in individual personnel folders — in case your business is audited by the government.
Is harassment training legally required for employers?
Only in a few states, such as California. But if even if it’s not mandatory, you should do it. Training builds awareness of what can be considered harassing behaviors. Many employees don’t know that harassment can come in many forms. And, if your company is ever in a lawsuit, having conducted training for your employees will help your defense.
What do I do if my employee won’t sign the termination notice?
If the employee refuses to sign, have the witness do it instead, indicating that paperwork was presented to the employee but he/she refused to sign.
I am currently using a ComplyRight product (Employee Record Organizer) with individual files inside. Does that satisfy the “individual folder” recommendation you made?
Yes, this product does satisfy the individual folder process I mentioned in the webinar. And to go back to what I discussed in the webinar, there are three essential employee records you should maintain, as most employers do. They are the personnel records, payroll records and medical records. Each set of records has legal regulations behind them which require you to keep certain information in each of them. I went over this in the webinar earlier as well. We did receive another question about the payroll records being separated, and the answer is yes.
And the reason you want to keep these records separate is because they contain different types of information that you should only allow individuals access to on an as-needed basis. Especially when it comes to employees’ medical records, these are highly confidential records that are protected by ADA, HIPAA, etc..
How do you address performance issues — continuing to make mistakes or not meeting deadlines?
During the webinar, I discussed progressive discipline, and these types of performance issues would be prime examples of a good instance to use progressive discipline. The first time you see a mistake or an employee missing a deadline, give a verbal warning; the second time you can provide a written warning, and the third could be grounds for dismissal. Now you also want to keep that manager’s journal I mentioned during the webinar to keep track of the times the employee makes mistakes or doesn’t meet deadlines, so you have concrete examples to cite to the employee as you discuss the issue with him/her.
Now if these mistakes or deadlines that are not met are a HUGE concern and cause major issues for the company, such as loss of revenue or customers, it could even be grounds for dismissal right away, but you need to evaluate the effect these issues are having on the company. And don’t forget the morale of your other employees. If they know these issues are occurring as well, and you are just letting them slip by the wayside, then that can affect your employee morale, so you want to make sure to take care of the issue.
What are the possible fines for federal compliance issues?
As I mentioned in the webinar earlier, the fines can vary from federal, state and even local posting requirements. The government can impose fines of up to $33,000+ per location for posting violations. And these violations can be for missing posters or outdated posters. On the state level, fines are typically between $100 and $1,000 per violation, and the city and county fines are typically in the same range as the state poster fines. However, each posting law has its own fines attached to it, so honestly there is no definitive answer as they are really all over the place.
What’s the best website to find posting requirements?
As I mentioned in the webinar earlier, there is no one-stop government shop that provides all the posting requirements or updates. So there is no best one website. You really need to look at each department’s website, for instance, DOL, EEOC, etc. But even just looking at these websites is not easy because you need to know what you are looking for. The best and safest way to go is to use a poster company that will keep you in compliance and provide a 100% compliance guarantee. Unless, of course, you have a legal researcher in your company who is willing to do the work.
Do you really have to hang up physical posters?
For physical worksites, the law still requires employers to display the postings on the walls, and the postings must adhere to all applicable size/font/color requirements. There are very few exceptions on a federal level (the FMLA and USERRA postings — two out of the six mandatory federal postings)) where electronic postings may be used as a substitute for physical wall postings, but only if the employer communicates all of its employment policies electronically and ensures that each employee has regular access to the electronic postings. Because these exceptions are so narrow, and because employers still are required to post all of the other postings (four remaining federal postings, up to 15 state postings, and additional postings for city/local compliance and government contractors), most employers elect to continue posting all of the posters in physical format for consistency and to ensure full compliance.
Is it a requirement to have job descriptions for positions?
There is no mandatory legal requirement to have written job descriptions, but the real question is why would you not want to have a written job description? Accurate job descriptions are invaluable to have when you are looking to fill the position and when you are trying to make classification determinations on whether the employee qualifies for exempt status under the FLSA. When you are advertising for the position, you want to detail all the requirements and qualifications so, hopefully, you can quickly sort through applicants that don’t qualify. And also, when you are considering applicants you want to make sure you are hiring the right person for the job. Without a job description, you may be hiring a great person, but someone who could still not be the right fit for the actual position. As for using the job description to help classify the worker under the FLSA as either exempt or non-exempt, you need to know what the actual job duties are to make that determination. To qualify for an exemption, the employee must meet but the salary requirements and the job duties test. You need the ACCURATE job description to compare the job duties with the job duties test to make sure it meets the requirements.