By Joe DeLoach, OD, FAAO
March 13, 2019
You may primarily think of HIPAA when you think about legal compliance, but another huge area of concern is human resources law. Here are the key HR laws to be aware of, along with pointers on managing compliance.
Key Areas of Concern
All HR laws are important, however there are some laws that received heightened attention from regulators last year, and are expected to receive even more attention this year. These include discrimination, harassment, obtaining criminal background checks, credit history and salary history on prospective or current employees, mis-classification of employees (improperly paying employees on a salary basis), improper classification of part-time doctors as contract labor and mandatory sick-pay laws.
The Practice Owner is Ultimately Responsible for All Compliance
As employers, practice owners are bound by all federal and state HR laws. As the employer, they are are the only ones who can ensure their practice policies are compliant, fair and applied in a consistent manner. HR laws are written to protect employees, not employers.
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Managing HR in a practice requires a sound working knowledge of federal and state HR laws and a good relationship with HR consultants. Unless a support staff has this kind of extensive HR knowledge and support, they should not be placed in a position to manage HR.
Support staff with the responsibility of managing the practice’s HR program are the only individuals who should be trained in HR. The rest of the employees should be informed of the employer’s policies by the employee or an HR manual. Review of employer HR policies with review of the employee manual should be part of the new employee’s first-day orientation process.
Get Outside Help to Support Compliance
HR consultants and compliance companies are the best source for assistance in developing and maintaining compliant HR programs. HR laws change rapidly, and without external support, no small business employer has a chance of keeping up with the rapidly changing HR environment.
In the first quarter of 2019 alone, over 2,000 new HR laws were introduced across the country. Payroll companies often offer HR programs as part of, or in addition to, their payroll services. Whatever source of help is used, the key is finding a consultant with their finger on the ever-changing HR laws.
Employers have an obligation to employees to know and keep up with the law. The best HR advice is to not be naive – get the help needed to develop sound, compliant HR policies before a problem happens.
You Need a Comprehensive Employee Manual
By far, the most common HR mistake is not having a comprehensive employee manual with HR policies consistent with current federal law and the individual HR laws of the state. The second most common problem is not applying those policies in a fair and non-discriminatory manner. The third most common problem is employers believing the great HR myth – “my staff loves me and would never hurt me.”
People are generally good, then life happens. If a potential violation of HR law occurs, the employer should first discuss the problem with their HR consultant. The consultant can help decide the severity of the problem and offer suggestions for action. In many cases, the employer will ultimately require the services of an HR attorney.
What Happens When You’ve Violated an HR Law
Notification of violations typically happens one of two ways. If a federal or state agency determines that a potential HR problem exists, the employer is almost always notified by mail. It is imperative to answer any requests in the time frame specified in the notification. Equally common is notification through an attorney hired by a current or former employee. This will also almost always happen by mail.
Penalties for HR violations are always severe for several reasons. First, the monetary fines commonly reach in to six figures plus legal costs associated with defense. Second, government agencies share names of individuals who have violated laws with other regulatory agencies. It is a tattletale system in the compliance world. Third, HR violations can be damaging to an employer’s reputation as much as their pocketbook.
If Current Employees Help Interview Prospective Employees, Be Careful
A commonly recommended practice is to have all, or some, of the current staff members “interview” prospective employees. In the current age of complex HR laws and heightened sensitivities in areas of discrimination, this is no longer a good idea – in fact it is a dangerous decision.
Only individuals thoroughly trained in proper and legal interviewing protocols should question the prospective employee. It is fine to introduce the applicant to everyone, but letting other staff members talk to applicants is a bad idea.