2006 New Year’s Resolution

            Every year at this time I make resolutions. Not for me, mind you. I know myself well enough to foresee that any promises to myself will just be forgotten by month’s end.

            No, each year I make resolutions for you as an employer. I get to give unsolicited advice as an employment lawyer about all the things you could do better during this new year to manage your employees and avoid employee lawsuits.

            I always draw these resolutions from difficulties that my clients have faced as employers during the previous year. However my first one has always concerned paying overtime correctly because that seems to be a chronic problem for Panhandle employers. Last year was no different.


  • Consider every employee to be nonexempt from the Fair Labor Standards Act requirements. That means that you pay every employee by the hour with overtime for all time worked over 40 hours in one workweek. Too many employers want to assume they can pay employees on a salary, call them exempt employees and avoid the problems of deciphering the overtime rules. The law doesn’t work that way. The default category should be nonexempt and entitled to overtime. Only rarely can you safely assume that an employee fits an FLSA exemption. By the way, if you are an employer and you don’t understand anything I’ve said in this paragraph, you need to call an employment attorney immediately.
  • Clean up your act. Harassment and discrimination cases often involve “stray remarks” made by the owner or a manager of the company. That racy joke that you are dying to retell, that off-color comment, that religious slight can all come back to haunt you in an employee lawsuit. Be responsible for monitoring your own language and you will have an easier time getting your employees to curtail their inappropriate comments.
  • Get your documentation up to date. Look at your job application form. Does it still ask the person’s age, place of birth or any health questions? If so, it needs updating. What about your personnel manual? Have you rewritten the policies that are unworkable? Have you made sure you have new ones to cover problems with cell phones at work (or while driving on company business), internet pornography and tiny cameras that can steal your trade secrets?
  • Protect yourself from embezzlement. This is a growing problem in the Panhandle. Employees are stealing cash receipts, creating bogus work orders, buying goods for personal use using company invoices, and filling up their cars with the company gas card. You need to review your fiscal management and assure yourself that this cannot happen to you. Don’t put the responsibility for honest solely on long-term employees that you believe you can trust. Do the hard work yourself of adopting redundant and effective cash-handling policies so that your employees are never tempted.
  • Quit believing in the myth of “contract employees”. A worker performing services for you for pay is called an “employee” and must be treated as such, whether that means paying expensive health insurance premiums or making regular payroll tax deposits. You cannot exercise control over a worker—set his hours, provide him the place and the equipment to perform the job, expect him to devote all his work time to you, require the work to be done a certain way—without treating him as an employee. An independent contractor is self-employed, works for lots of other people besides you, probably advertises in the yellow pages and never shows up when scheduled, like your plumber. If a worker doesn’t qualify as a completely independent contractor, then quit trying to call him a “contract employee” in order to cheat the IRS, the TWC and the employee himself by avoiding payroll taxes. Start treating him as the regular employee he actually is.
  • Enforce your attendance and tardiness policies. The number one complaint I receive from employers is that their employees don’t report to work regularly and on time. A little digging normally reveals that it is the employer who has created this problem by allowing employees to “go negative” on their paid days off. A good employer will provide a couple of weeks of paid vacation, 5 days of paid sick leave, a few paid personal days and holidays every year. If the company has 50 or more employees, the employer may have to provide 12 weeks of unpaid leave for serious family or medical problems. Once an employee has used all of those paid days off and any available FMLA leave if required, that should be the end of any absences for that year. Employers think that if an employee calls in with a sick child, emergency surgery, car trouble or any other excuse, the employer has to put up with the absence, and only punish the employee by making it an unpaid day off. No! Once an employee is out of paid leave, discipline them or fire them for excessive absenteeism. Your other employees will take note and their attendance will improve.

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