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How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Hogge Law 500 E. Plume Street, Suite 800 Norfolk, Virginia 23510 (757) 961-5400 A law firm.

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Presentation on theme: "How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Hogge Law 500 E. Plume Street, Suite 800 Norfolk, Virginia 23510 (757) 961-5400 A law firm."— Presentation transcript:

1 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Hogge Law 500 E. Plume Street, Suite 800 Norfolk, Virginia (757) A law firm specializing in serving the needs of Virginia public and private employers

2 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. IMPORTANT NOTICE: This presentation is intended to be used solely for informational purposes, and is not offered as legal advice. For assistance in conducting an employment law audit, contact attorney Raymond L. Hogge, Jr. at (757)

3 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Benefits of An Employment Law Audit

4 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Benefits of An Employment Law Audit  Minimize the risk of employment-related lawsuits

5 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Benefits of An Employment Law Audit  Reduce employment-related costs (recruiting, training, unemployment comp, workers' comp, legal expenses)

6 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Benefits of An Employment Law Audit  Improve productivity, efficiency, morale, and retention

7 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Benefits of An Employment Law Audit  Management can sleep at night

8 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit

9 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws

10 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Title VII of Civil Rights Act of 1964  15 employee minimum  Race, color, sex (including pregnancy), religion, national origin

11 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Americans with Disabilities Act  15 employee minimum  Pre-hire; conditional offer of employment; post- hire  Critical concepts: Disability, reasonable accommodation; undue hardship

12 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Rehabilitation Act  Applies to certain employers with government contracts or grants  Similar to ADA

13 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Age Discrimination in Employment Act  20 employee minimum  Age 40 or older

14 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Family and Medical Leave Act  50 employee minimum  Covered employers, eligible employees; qualifying reasons for leave  Notification requirements  Certification requirements

15 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Fair Labor Standards Act  Minimum wage  Overtime compensation  Child labor  Recent changes to exemption rules for minimum wage and overtime compensation

16 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Davis-Bacon Act (certain government contractors)  Prevailing wage rate

17 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Government Service Contract Act (certain government contractors)  Prevailing wage rate

18 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Employee Retirement Income Security Act (ERISA)  Employee benefit plans

19 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Consolidated Omnibus Budget Reconciliation Act (COBRA)  20 employee minimum  Health care continuation coverage

20 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Internal Revenue Code  Payroll taxes  Employee benefit plans

21 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Immigration and Naturalization Act  Form I-9

22 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Constitutions (public employers)  Due Process  Equal Protection  Free Speech  Religious Freedom

23 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Virginia Workers' Compensation Act  Reporting injuries and accidents  Physician panel  Handling claims; assessing defenses  Actual Risk; not positional risk  Return to work strategies

24 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Virginia Unemployment Compensation Act  Resignation  Termination  Misconduct

25 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Virginia Payment of Wage Law

26 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Virginia Human Rights Act

27 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practices comply with applicable federal, state, and local laws  Local Ordinances

28 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies and practice meet requirements of contracts or grants  Prevailing wage rates  Affirmative action

29 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies meet the needs of the organization

30 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether practices match policies

31 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Goals of An Employment Law Audit  Determine whether policies are adequately communicated to employees

32 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Framework for the Audit

33 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Framework for the Audit  The Employee Handbook

34 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Framework for the Audit  The Employee Handbook  The Employee Handbook should define the employment policies

35 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Framework for the Audit  The Employee Handbook  The Employee Handbook should define the employment policies  The employment policies should define the employment practices

36 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Framework for the Audit  The Employee Handbook  The Employee Handbook should define the employment policies  The employment policies should define the employment practices  The employment practices should  Comply with applicable law  Promote the interests of the employer

37 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook

38 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook  Should reflect all policies and practices of the employer  Hiring and promotion  Performance and evaluation  Discipline and discharge  Dispute Resolution  Wages and benefits  Safety and health  Other

39 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook  Should contain contract disclaimer

40 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook  Should contain reservation of employer right to modify policies

41 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook  Should contain statement that employee benefits are governed by applicable master plan documents and insurance policies

42 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook  Should contain employment-at-will policy

43 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook  Should contain acknowledgment form to be signed by employee  Acknowledge receipt  Read before beginning work  Contract disclaimer; employer right to revise  At-will  Violation of policies results in discipline or discharge  If questions, will ask

44 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook  Should be distributed to each employee before he or she begins work

45 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook  Publication method  Print  Easy to track changes  More expensive than online  Online  Tracking changes requires diligence  Less expensive than print

46 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Employee Handbook  Should give the best possible impression of the employer  By example, shows employees the level of quality the employer expects  Should be suitable for use as recruiting tool

47 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit EEO Policies and Practices

48 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit EEO Policies and Practices  General EEO policy and practices  Title VII  Age Discrimination in Employment Act  Equal Pay Act  State statutes  Local ordinances  Contractual requirements

49 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit EEO Policies and Practices  Sexual (and other) harassment policy and practices  Reporting system  Investigation procedures  Temporary measures  Confidentiality  Rights of accused v accuser  Use of dispute resolution procedures

50 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit EEO Policies and Practices  Affirmative action policy and practices  If and only if applicable

51 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit EEO Policies and Practices  Disability accommodation policy and practices  Pre-hire  Post-hire  Essential functions of job identified in job description?  Interactive process

52 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit EEO Policies and Practices  Non-retaliation policy and practices

53 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit EEO Policies and Practices  Incorporation of  Grievance procedure  Open door policy  Arbitration

54 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Job Descriptions

55 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Job Descriptions  Are the job duties clearly stated?  Most important duties should be listed first

56 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Job Descriptions  Are all essential functions of the job identified?  Reliable time and attendance  Physical demands  Interpersonal skills

57 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Job Descriptions  Do the requirement of the job as stated in the job description have the effect of discriminating against applicants on the basis of any protected status (race, sex, disability, etc.)?

58 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Job Descriptions  If the job is FLSA-exempt, does the job description clearly demonstrate the exemption is applicable?

59 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices

60 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of recruiting methods

61 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of recruiting methods  Promotion v. posting v. advertisement

62 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of recruiting methods  Use of recruiters  Contract between employer and agency

63 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of recruiting methods  Use of staffing agencies  Contract between employer and agency  Legal duties of employer and agency  Allocation of risk between employer and agency

64 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of recruiting methods  Use of professional employer organizations  Contract between employer and PEO  Legal relationship between employer, PEO and worker  Allocation of risk between employer and PEO

65 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of recruiting methods  Contents of advertisements legal?  Statement discriminatory  "EEO" statement required?

66 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of recruiting methods  Affirmative action required?  Have federal or state contract?  Receive federal or state funds?

67 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of application forms

68 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of application forms  Should state how long application considered active

69 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of application forms  Should contain employment-at-will disclaimer

70 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of application forms  Should contain falsification or omission of information provision

71 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of application forms  Should contain authorizations necessary for information verification, reference checks, credit reports

72 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of application forms  Should contain authorizations necessary for  Information verification  Reference checks  Credit reports

73 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of application forms  Should contain arbitration agreement, if arbitration of employment disputes is desired

74 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of application forms  Should not contain potentially discriminatory questions, e.g.:  Workers' compensation history (ADA)  Medical conditions (ADA)  Arrest records (Title VII)  Marital status (Va. Human Rights Act

75 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of selection process

76 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of selection process  Interview procedures and questions should be determined in advance and consistently applied

77 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of selection process  Interview questions should be job-related  Interview questions should reflect job requirements set forth in written job description  Consider using written job description during interview

78 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of selection process  Interviewers should make written record of all relevant information  Interviewers should not record information which could be interpreted as discriminatory or otherwise unlawful or inappropriate

79 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of selection process  Medical information  Should follow 3-stage process required by ADA  Pre-offer  Conditional offer of employment  Post-hire  Should ensure strict confidentiality

80 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of selection process  All tests given to applicants should reflect job duties stated on written job description  Tests should be assessed to identify potential issues under ADA, Title VII, etc.

81 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of selection process  All reference should be checked  Written record should be made of all information received

82 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of selection process  Credit checks should be performed only in strict compliance with applicable law

83 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of selection process  Selection should be based upon job-related criteria stated in the written job description

84 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of employment documents

85 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of employment documents  Hiring should be confirmed in writing (letter / form)  State job title  State date of hire  State rate of pay  State FLSA exempt / non-exempt status  Refer to employee handbook  Refer to arbitration, if used

86 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of employment documents  Use written employment contracts for executive and highly compensated employees  Contract will supersede all prior agreements  Specify how employment may be terminated  Consider non-compete and non-disclosure  Consider buy / sell if ownership interest  Have contracts reviewed by attorney first

87 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of employment documents  Non-compete agreements  Restrictions must be no greater than necessary to protect employer interests  Restrictions must not unduly interfere with employee ability to earn a living  Restrictions must not be against public policy  No "blue pencil" in Virginia

88 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of employment documents  Non-disclosure agreements  Protect confidential information and trade secrets  Consider for executives, sales, and technology personnel  Do not make overbroad

89 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of employment documents  Arbitration agreements  Consider using arbitration agreements to reduce litigation costs  Specify arbitration protocol  Specify disputes subject to agreement  Specify disputes not subject to agreement

90 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of employment documents  Consent to drug / alcohol testing  Specify types of testing (random, post-accident, etc.)  Meet requirements for regulated industries (e.g., trucking)

91 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of employment documents  Proof of citizenship  Form I-9

92 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Hiring Practices  Assessment of employment documents  Personnel file  Maintain separate medical file

93 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Evaluation Practices

94 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Evaluation Practices  Evaluations should follow schedule stated in employee handbook

95 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Evaluation Practices  Evaluations should be based upon job duties stated in written job description

96 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Evaluation Practices  Evaluations should be in writing, using established forms and rating systems

97 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Evaluation Practices  Evaluations which call for improvement should be followed by a written corrective action plan

98 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Evaluation Practices  Employees should be able to use grievance procedure to challenge evaluations with which they disagree

99 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Evaluation Practices  Evaluations should be confidential, and shared only with managers and supervisors who have a need to know

100 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disciplinary Practices

101 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disciplinary Practices  Employee discipline should be based upon standards of conduct stated in employee handbook

102 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disciplinary Practices  In most circumstances, progressive discipline should be used  Egregious offenses may support immediate termination

103 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disciplinary Practices  Discipline should be applied consistently

104 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disciplinary Practices  Employees should be able to use grievance procedure to challenge disciplinary actions with which they disagree

105 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Termination Practices

106 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Termination Practices  Dismissal should be supported by adequate documentation of the reasons for dismissal  Prior documentation in personnel file  Written notice of termination

107 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Termination Practices  Employees should be able to use grievance procedure to challenge termination actions with which they disagree

108 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Termination Practices  Dismissal should be conducted in person when possible  Two members of management

109 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Termination Practices  A written record should be made of the employee's response to dismissal or reason for resignation

110 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Termination Practices  Exit interviews should be conducted when possible  Written exit interview form  Two members of management

111 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Termination Practices  Safeguard employer property  Keys  Documents  Equipment  Computer passwords

112 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Termination Practices  Employee's personal items  Supervise removal

113 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Termination Practices  Payment of wages  Virginia Payment of Wage Law

114 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices

115 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices  Grievance procedure

116 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices  Grievance procedure  Grievance forms - clear and understandable?

117 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices  Grievance procedure  Offender by-pass included?

118 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices  Grievance procedure  Public employers - grievance procedure should reflect applicable statutory and due process requirements

119 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices  Open-door policy

120 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices  Open-door policy  Relationship to grievance procedure explained?

121 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices  Arbitration (if employer uses arbitration)

122 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices  Arbitration (if employer uses arbitration)  Arbitration agreement enforceable?

123 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Dispute Resolution Practices  Arbitration (if employer uses arbitration)  Arbitration agreement signed by all employees before beginning work?

124 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Wage and Hour Practices

125 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Wage and Hour Practices  Applicable Laws  Fair Labor Standards Act  Portal to Portal Act  Equal Pay Act  Federal statutes applying to federal contractors and recipients of federal funds (e.g., Davis-Bacon Act)  Virginia Payment of Wage Law

126 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Wage and Hour Practices  Fair Labor Standards Act  Regulations govern:  Minimum Wage  Overtime Pay  Child Labor

127 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Wage and Hour Practices  Fair Labor Standards Act  Assess whether hours worked are calculated correctly.  Calculated on workweek basis  De minimus (20 minute) breaks = working time  Training time  Travel time  Other specific situations

128 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Wage and Hour Practices  Fair Labor Standards Act  Assess whether leave practices violate FLSA  "Comp time"  Available to public employers  Not available to private employers

129 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Wage and Hour Practices  Fair Labor Standards Act  Assess whether employees are correctly classified as FLSA-exempt  Executive; administrative; professional; others  Must meet specific requirements under Department of Labor regulations  New "Fair Pay" regulations recently adopted  Job duties, not job description, controls

130 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Wage and Hour Practices  Fair Labor Standards Act  Assess whether employer practices threaten FLSA- exempt status of employees  Deductions for hours off  Pay docking

131 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Wage and Hour Practices  Fair Labor Standards Act  Assess whether required time and attendance records are being maintained

132 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Wage and Hour Practices  Virginia Payment of Wage Law  Frequency of wage payment  Deductions from wage payments  Must be voluntarily authorized in writing  Interpretations by Virginia Department of Labor and Industry

133 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Leave Practices

134 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Leave Practices  Identify relevant laws  Virginia Workers' Compensation Act  Title VII (including Pregnancy Discrimination Act) and Virginia Human Rights Act.  Americans with Disabilities Act and Virginians with Disabilities Act  Family and Medical Leave Act  Industry requirements

135 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Leave Practices  Identify other considerations  Contracts  Collective bargaining agreements  Workplace safety  Recruiting  Retention  Productivity

136 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Leave Practices  Assess leave alternatives  Vacation  Sick leave  FMLA leave  Disability leave  Paid Time Off  Work Comp leave  Military (USERRA) leave

137 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Leave Practices  Assess practices for granting leave mandated by statute  Pregnancy Discrimination Act (Title VII)  Americans with Disabilities Act  Family and Medical Leave

138 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Leave Practices  Assess leave documentation  Leave requests  Should specify type of leave requested  Medical certifications  Use standard form  Notification of leave rights and obligations

139 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Safety and Health Practices

140 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Safety and Health Practices  Workplace compliant with all OSHA standards?  Fall protection standard  Confined space standard  Bloodborne pathogens standard  Other standards

141 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Safety and Health Practices  Safety policies adopted?  Adequately communicated to employees?  Explained in employee handbook or safety manual?  Employees receive regular training?  Safety policies enforced by supervisors?

142 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Safety and Health Practices  Workplace violence policies adopted?  Explained in employee handbook?  Supervisors understand how to respond to threats of workplace violence?  Employees understand how to respond to threats of workplace violence?

143 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Workers' Compensation Practices

144 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Workers' Compensation Practices  Employer's First Report of Injury or Accident consistently and timely filed with Virginia Workers' Compensation Commission?

145 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Workers' Compensation Practices  Panel of 3 physicians consistently provided to injured employee?

146 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Workers' Compensation Practices  Assess process for returning injured employee to work  Should be returned to work as soon as possible

147 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Workers' Compensation Practices  Compensability of injury sufficiently assessed?  Was there an "accident?"  Did it "arise out of" employment?"  Remember - Virginia is an "actual risk" state, not a "positional risk" state  Did it arise "in the course of" employment?  Did it result from employee "misconduct?"

148 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Workers' Compensation Practices  Assess coordination with Americans with Disabilities Act and Family and Medical Leave Act

149 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disability Accommodation Practices

150 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disability Accommodation Practices  Assess "interactive process" to determine ADA "reasonable accommodation"

151 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disability Accommodation Practices  Assess process for determining "undue hardship"

152 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disability Accommodation Practices  Assess process for determining "direct threat"

153 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disability Accommodation Practices  Assess process for obtaining medical certifications

154 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Disability Accommodation Practices  Assess coordination with FMLA and workers' compensation

155 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Other Important Employment Practices

156 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Other Important Employment Practices  Assess electronic data communications practices  Computers   Internet

157 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Other Important Employment Practices  Assess workplace security practices

158 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. Audit Other Important Employment Practices  Assess protection of confidential information and trade secrets

159 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. The final step in the employment law audit  Written Employment Law Audit Report, including factual findings and recommendations for changes in employment policies and practices, is prepared and submitted to management  Management carefully considers the findings and recommendations in the Employment Law Audit Report, and implements appropriate changes, if any, to employer policies and practices

160 How to Conduct an Employment Law Audit Raymond L. Hogge, Jr. For assistance in conducting your employment law audit, contact attorney Raymond L. Hogge, Jr. at (757) This presentation may be downloaded at no charge on VirginiaLaborLaw.com


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