Top mistakes employers will make in 2021

Employment lawsuits continue to rise. Unfortunately, certain practices repeatedly have resulted in a higher risk of employment litigation for businesses.

Here are six tips to help businesses prevent employment-related litigation this year:

1. Failing to prepare and update your COVID-19 response plan

Just because the vaccines are being distributed doesn't mean we are out of the woods. Stay on top of the COVID-19 laws, regulations and recommendations to protect the health and welfare of your employees and the ongoing viability of your business.

Be prepared with a vaccine policy or addendum to your policy, and if mandating vaccines, be prepared with religious and medical exemption request forms.

2. Allowing telecommuting without a proper policy or system in place

COVID-19 has brought remote work into the mainstream. Make sure your remote-work policy is compliant with federal and state law and that employees are trained to log remote work hours appropriately.

3. Allowing performance and misconduct issues to slide

Even the best employers have workers who are not performing satisfactorily, and the COVID-19 crisis has not changed that fact.

If you have a disruptive or poor-performing employee, address these issues head-on. Schedule a counseling session to address challenges, and give your employee an opportunity to correct their deficiencies.

Write tough but accurate evaluations, and demand that they improve within a reasonable but speficied time frame.

If clear expectations, weekly or biweekly check-ins do not result in improved performance, do not delay termination.

4. Failing to document performance properly

Any lawyer will tell you that a thorough, accurate personnel file containing a history of performance issues and other problems with an employee is invaluable in the event of a lawsuit.

Employees are less likely to sue when they are on notice of deficiencies.

Juries expect to see performance issues documented before termination.

On the other hand, missing or sugarcoated performance evaluations will hurt you, as a jury will be suspicious either of the missing document or why such an employee was fired after the glowing review.

In other words, document properly and accurately or not at all.

5. Not being prepared for the new overtime laws and inspections

On Jan. 6 the U.S. Department of Labor issued new guidance on independent contractors that distills the analysis down into core factors, including the nature and degree of the control over the work and the worker's opportunity for profit or loss.

This matches with a recent Iowa Court of Appeals ruling that it will closely examine the control by the employer over the detail of the alleged employee's work.

The Labor Department also will target employers who misclassify employees as 'exempt,” which denies employees overtime pay and employers that label employees 'consultants,” 'independent contractors” or '1099's” to avoid paying payroll taxes.

Ensure you can justify your employee classifications.

6. Failing to manage medical leaves of absence

Managing an employee's medical leave of absence can create many land mines for employers, including workers' compensation laws, the Family medical Leave Act, and the American with Disabilities Act.

Think of FMLA at the beginning of a leave period, not at the end.

Your handbook should inform the employees you plan to run FMLA leave concurrently with other leave to avoid double-dipping, which would your operations and employees working longer hours and harder to cover for a person's long absence

Remember that employers do not have to accept vague FMLA requests. The law permits your FMLA coordinator to seek clarification about the need for leave from the employee's doctor.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.