In my last post, I discussed some of the most common mistakes employers make during the hiring process. But your work isn’t done after you pick the right candidate—the work of properly managing employees is an ongoing task. In this article, I’ll walk you through some of the issues that can arise when you’re preparing employment policies, managing employees, and handling employee misconduct.

Failure to Establish, Document and Follow Proper Policies

Proper written employment policies provide the basis for an employer’s protection from many employee claims.  While an employer should not solely rely on written policies for protection, the employer should be sure that it has policies in place to cover most employment-related issues.  Below, I list the main employment issues employers should cover in a written employment policies. For more information on some of the federal employment laws listed below, I recommend you read this article.

  • Fair Labor Standards Act (FLSA): In the event that the FLSA applies to an employer, the employer should be aware of its requirements and have written policies ensuring such compliance.  Amendments to the Fair Labor Standards Act sometimes change the requirements for pay of overtime to employees and other significant labor standards.  Employers should regularly update their overtime policies to ensure compliance with Federal and state laws.  In most industries, the FLSA applies to employers with two or more employees engaged in commerce that have $500,000 or more in sales each year.
  • Harassment Policies: Harassment policies should clearly state that harassment of any kind will not be tolerated.  Generally, they list examples of harassment and outline how an employee can get help when that employee feels like he or she is being harassed.  These policies will often outline discipline procedures or penalties as well.
  • Discipline Procedures: Some employers will outline possible discipline procedures in a written policy.  If an employer has such a policy, an employer should always follow it consistently and be sure that no such policy will prevent the employer from terminating the employment of an employee when needed.
  • Family Medical Leave Act (FMLA): If the FMLA applies to an employer, that employer should post written employment policies regarding how to take FMLA leave.  The FMLA applies to employers with 50 or more employees at a worksite within 75 miles of the employee seeking leave.
  • Americans with Disabilities Act (ADA) Compliance: If the ADA applies to an employer, that employer should outline the procedures for an employee to request a reasonable accommodation for a disability.  The employer should also document all steps taken to accommodate employees with disabilities as they occur.  The ADA applies to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year.
  • Benefits: Employers should document all policies for providing employee benefits and ensure that the benefits are applied consistently.
  • Other Issues That May or May Not be Addressed by Written Policies
    • Cell Phone Use
    • Use of Computers, E-mail, and the Internet at Work
    • Concealed Weapons
    • Social Media
    • Pregnancy Discrimination
    • Polygraph Tests
    • Drug Testing
    • Employees Dating
    • Outside Activities
    • Employee Privacy and Monitoring
    • Compensation and Unionization Issues

Written policies addressing any of the issues above should clearly state that they may be modified and describe the method for such modifications. The Venn Law Group has extensive experience drafting and modifying employment policies for companies of all sizes in a variety of industries.

Failure to Follow Established Policies

Sometimes employers that have excellently drafted employee handbooks with excellently prepared policies can still be held liable for damages related to harassment and discrimination claims.  These claims can be successful when employers and their managers do not follow the policies outlined in their handbooks.  An employer may spend a great deal of money preparing the perfect policy, but such a policy must be updated, enforced, and followed consistently to protect the employer from claims related to the policy.  Employers must take the time to train their managers and supervisors to follow such carefully prepared policies.

Failure to Document Issues and Actions

Employers must consistently document issues related to employees and employment policies and have the employee acknowledge or agree to such documents, if possible.  Such documentation provides invaluable support for an employer facing a claim for wrongful termination or other matters from a terminated employee.  Further, such documentation makes it clear that the employee was informed of any problems and given an opportunity to correct behavior.

Employers must also ensure that performance appraisals are completed accurately.  Managers and supervisors must be trained to complete appraisals honestly and accurately instead of ignoring or downplaying employee problems.

If a company has a policy of giving oral warnings, such oral warnings given by managers or supervisors should be documented by the supervisor or manager as soon as possible after the fact.

Failure to Address Cultural Differences

Employers hiring employees from different cultures may face additional issues related to the cultural norms of those employees.  For example, many cultures have a different view of punctuality, shaking hands, eye contact, and communication methods that can cause serious misunderstandings.  Managers and Supervisors should be reasonably sensitive to such cultural differences to avoid misunderstandings and unnecessary problems.  They should explain all expectations in detail to these employees and make sure they understand the issue.  Some examples of such cultural differences are:

  • Certain Muslims and observant Jews may not shake hands with people of the opposite sex;
  • Certain cultures have a different view of personal space that may make Americans uncomfortable when having discussions; and
  • Certain Asian cultures encourage employees not to speak up in meetings when speaking up might embarrass the manager or boss.


Let’s recap what we just read:

  • Employers should have a comprehensive employment policy. These policies (a) should usually address a core set of issues, (b) may include additional issues if the employer thinks they’re relevant, and (c) should always state that they’re open to modification at a later date.
  • Consistency is key. Employers should require managers and supervisors to follow the employment policies to the letter in all cases and invest in training managers and supervisors on how the policy works and how to implement it.
  • Every action taken by employers relating to the employment policy, from firings down to oral warnings, should be documented in the personnel files of the company. This is essential to protecting the company from liability in the event of a wrongful firing or discrimination lawsuit.
  • Address cultural differences. Employers everywhere – from bustling metropolis like Charlotte to sleepy hamlets like Four Oaks or Hamlet – should understand the cultural differences of their employees and how to explain the company’s expectations with respect to these differences.

We covered a lot of ground in this article. If you want to know more, or if you think your company could use some help with any of the steps laid out above, contact us. Our attorneys can help you draft an appropriate policy and come up with a workable plan for implementing it consistently and fairly across your business.

By Edward Woodall