• Zombies, Ghouls, and Unpaid Wage Claims: The Top 5 HR Horrors This Season
  • November 7, 2013
  • Law Firm: Ogletree Deakins Nash Smoak Stewart P.C. - Greenville Office
  • As the group that shepherds employees from the application stage through the end of the employment relationship, human resources (HR) departments administer programs and policies that could greatly impact a company if a misstep results in litigation. HR regularly has to deal with some of the creepiest, crawliest issues for any employer-hiring, firing, leave, discipline, handbooks, payroll, benefits, and employee classifications. Here are the top five trendiest, most bloodcurdling issues your HR department might be dealing with on this, the spookiest (or sexiest) day of the year.

    (1) Workplace Violence

    An employer’s legal responsibilities to its workforce make violence prevention and intervention a top priority. In 2011, the U.S. Department of Justice released statistics related to workplace violence indicating that certain types of workplace incidents have declined in number. An incident of workplace violence can nevertheless spell ruin for employers on the liability and public relations fronts.

    A well-prepared employer should assess the risks to the workplace (including the types of employee behaviors that are cause for concern), take steps to prevent violence, make a plan of action to have on hand once an incident is over, and review the workplace violence directive issued by the Occupational Health and Safety Administration (OSHA). For these and other tips on handling violence at work, see “Workplace Violence: Assessing the Risk and Dealing with the Consequences.”

    (2) Unpaid Interns

    Does your company have an internship program? If so, you should be aware of the U.S. Department of Labor’s (DOL) strict rules on whether interns at for-profit private sector employers should be paid. The great threat for employers is that a mistake in determining whether an individual truly qualifies as an unpaid intern could result in a violation of the federal (and, sometimes, state) minimum wage and overtime laws-and leave employers on the hook for a large sum of unpaid wages. A number of class actions have recently been filed by interns who were not paid but who are now seeking back wages, leading at least one high-profile company to end its internship program for good.

    There are more reasons to be careful. First, employers that have violated -or have been accused of violating-the rules on internships have recently been the center of media coverage. Second, the determination about whether your interns are actually employees is important because employees are protected by laws that don’t necessarily apply to interns. Case in point: a federal court in New York recently ruled that interns were not protected by state and city harassment laws.

    Employers with internship programs should take this opportunity to audit their programs to ensure compliance with the DOL’s six-factor test.

    (3) Technology, Trade Secrets, and the Mobile Workforce

    Technological advancements have created a host of problems in the modern workplace. For one thing, they have drastically increased employers’ exposure to wage and hour claims by facilitating employees’ ability to work off-the-clock. Examples of off-the-clock work that employees might engage in with the advancement of technology include remote communications and remote work. While one might think that this is only a problem for off-the-clock work claims brought by non-exempt employees, the problem exists for both non-exempt and exempt employees.

    The proliferation and availability of technological devices also implicate individual privacy issues as some companies have considered using GPS tracking devices to monitor their employees. Telecommuting is a much more viable option than it was in the past, but work-from-home arrangements come with their own wage and hour risks.

    Finally, the use of technology makes the transfer of information extremely easy. This ease of communication makes companies vulnerable to the possibility that employees might take valuable or closely-guarded information with them at the end of the employment relationship or that unauthorized users will be able to access confidential or proprietary information. Best practice behaviors that employers can adopt include technology policies that prevent both the use of confidential information and access to company databases for improper or competitive purposes and using layered security codes and computer passwords.

    (4) Crisis and Disaster Management

    One of the biggest, but least planned for threats to the modern workplace comes in the form of a natural or human disaster. Whether it’s a hurricane, an earthquake, a flu pandemic, or a terrorist attack, employers need to have an emergency response plan in place that they can quickly deploy. Employers should also make sure that all of their electronic data is backed up, preserved, and accessible and that they have a communication plan in place.

    (5) Social Media

    Social networking and media websites such as Facebook, Twitter, and LinkedIn have created a number of new challenges for employers related to employees’ privacy rights. At least three states-California, Illinois, and New Jersey-have passed laws preventing employers from collecting employees’ social networking login information.

    In addition to these privacy concerns, employers’ electronic communications policies and procedures might interfere with employees’ rights under the National Labor Relations Act (NLRA). Generally, the NLRA gives employees the right to discuss their terms and conditions of employment, including voicing concerns about the workplace through social networking sites. The National Labor Relations Board (NLRB) has recently taken a stance against attempts to interfere with or chill employees’ concerted activity rights through overreaching communications policies. Employers thus should carefully craft their social media policies to avoid interfering with employees’ rights.