With the recent flurry of enforcement activity by government agencies, increase in collective action and class action lawsuits, and the ever-present threat of individual lawsuits for discrimination, harassment, wrongful termination and other employment actions, a prudent company must periodically review and update the employment documents it uses every day. A hotel employer needs a well-drafted and legally enforceable employment application and related hiring documents (such as forms for credit and criminal background checks, references etc.), good job descriptions, performance review forms tailored to the business and an updated and user-friendly employee handbook.
Hiring documents
Employment applications and related documents are an important first step in the employment relationship. You should not accept resumes in lieu of applications. Remember, people do not put negative information on their resumes. And do not use an “off-the-shelf” employment application. Customize the application to your property and the positions for which you are hiring. Be sure to include proper “at-will” and other disclaimers. Ensure the application is lawful. Certain application questions can pose legal risks, such as questions about criminal backgrounds and credit history or questions designed to determine an applicant’s age or health conditions. Make certain other hiring documents, such as references and background check forms, and interview checklists have been thoroughly reviewed for legal compliance.
Employee handbooks
Many handbooks suffer from similar problems—copying another company’s policies, not tailoring them to your property, giving your employees certain rights, trying to solve every problem through the handbook, and not taking into consideration state law requirements. Another common problem is the failure to have adequate equal employment opportunity and no-harassment policies that address all types of illegal harassment and discrimination—and which do not include a procedure that provides employees with alternative avenues to report violations to ensure that proper management receives notice of the concern and can effectively respond.
Many handbooks lack social-media and electronic-communications policies, or have policies that are inconsistent with the rapidly changing world and legal requirements. Do your policies address the use of devices while driving? Does the policy allow the company to view personal email accounts accessed through company equipment? Other policies fail to take into account the changes to the leave laws or have leave provisions that might be inconsistent with the Americans with Disabilities Act’s requirement and the Equal Employment Opportunity Commission’s enforcement position regarding unpaid leave as a reasonable accommodation.
In addition to legal compliance issues, some handbooks simply do not reflect the employer’s policies, rules and culture. Handbooks that include policies that have not been followed for years should be revised to reflect current practices. For example, if you have a calling-off procedure that requires employees to personally call a supervisor but your employees regularly report off by email or text, what is your real policy? If your appearance policy states employees may not have any visible tattoos, but you have employees with inoffensive (yet visible) tattoos, it’s time to change your policy to reflect your actual practice.
An employee handbook drafted to be “all things to all people” is a mistake. For example, many handbooks have multiple paragraphs explaining exempt versus nonexempt status. Others include detailed explanations of the health and medical benefits that often are inconsistent with the actual plan documents governing the benefit. Your handbook should not be used as a replacement for managing employees and making decisions.
Job descriptions
Job descriptions pose similar problems for employers. Do your job descriptions match the job duties today? Maybe the company got them off the shelf without regard to whether the job description “describes” the job expected to be performed. Or maybe the job description was accurate when created but as the job changed, the written description of the job did not.
Why is it so important the job description and the job duties match? Consider the ADA.
The ADA protects employees and applicants who can perform essential job functions with or without a reasonable accommodation. Often, the issue in an ADA case is what job duties are “essential.” Employers who use job descriptions have the opportunity to set forth those essential job functions in writing before a controversy arises, and most job descriptions purport to do so. For the job description to be of value, however, it must accurately describe/list those essential job functions, and often they do not.
Similar concerns exist under wage and hour law. Many employers determine exempt versus nonexempt status based on a job description. The danger in doing this is the primary job duty described in the job description might not be the job being performed. Remember, exempt status is not determined by job descriptions any more than it is determined by job title.
Ensure the job description includes all essential job functions, including the oft-overlooked “mental” requirements. If the ability to understand and follow instructions, and the ability to concentrate are considered essential to job performance, those traits should be included. Similarly, if the ability to speak clearly, hear instructions and verbally communicate with guests is considered essential, list those qualifications as well. While the value of job descriptions might be debated, there is no debate that a bad job description likely has negative value.
If your application, handbook, job descriptions and other important human resources related documents have these and other “issues,” you’re not alone – it’s easy to fall behind the ever-changing world of technology, culture and the law. But it is never too late to make needed changes and to update these important documents. The investment will pay off.
Andria Ryan is a partner in the Atlanta office of Fisher & Philllips, LLP and serves as the chair of the firm's Hospitality Industry Practice Group. She represents employers in virtually every area of employment and labor law and can be reached at 404-240-421 or alureryan@laborlawyers.com.
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