The principal asset in a company is its personnel. Naturally, without people who would operate the business?
It has been noted a number of times through this series that proactive risk-management should be a focus area in a well-managed enterprise. It is less expensive, in terms of time, talent and treasure, to anticipate and avoid problems, than it is to remedy them.
What are the risks that a company should be constantly aware of regarding its employees? While simply put, there are three risks: (1) health and safety, (2) discrimination and (3) technical compliance. This is simply put because each of those three topics, and the many others involving humans in business, are complex and nuanced, based upon facts, personalities and an ever-changing regulatory environment.
Let us address each of those subject areas separately and briefly. In keeping with the railroad theme of the title, let us apply them to the boarding, journey and disembarking phases of employment.
Health and Safety
Starting with common sense, if a worker is sidelined during their employment journey due to a workplace-related injury or illness, or if they are worried about becoming hurt or sick at work, he or she cannot produce the company’s goods or services. Employers should create, maintain and promote safe employment environments.
One way is for a company to research and implement best practices to prevent those bodily risks. Then, a company can inculcate a work culture that supports the constant improvement of those operational supports.
What if employees become injured or sick on-the-job? Employers, then, are exposed to possible examination and even sanctions, by the federal Occupational Safety and Health Administration (OSHA) and agencies of the Department of Labor. OSHA examinations, following or in advance of, health and safety situations are comprehensive, can seem onerous to an employer and can result in penalties from closing a worksite to substantial monetary fines, ongoing inspections and reporting.
If an injured or sick employee makes a worker’s compensation insurance claim, those claims can result in both short-term and long-term implications for a business. The employers worker’s compensation insurance carriers can pay the employee short-term to long-term payouts related to the injury or illness. Claims can impact the company’s insurance costs based upon an algorithmic multiplier. This rewards low reserves and claims histories with annual rebates and decreased forward-going premiums, but penalizes higher reserves and claims histories with supplemental insurance bills and increased premiums.
It must be noted there are indeed more regulations, regulators and implications revolving around employment health and safety. What if we flip the situation on its head? What if employers instill proactive risk-management policies and procedures to reduce, prevent or stop workplace injuries and illnesses? The result would be a more physically secure employee base and an intentionally enhanced return on investment, accordingly. Instead of thinking about those matters in terms of cost centers, there is value in approaching them as value-adding centers. The good news is that OSHA, through its affiliation with the National Institute for Occupational Safety and Health and workers compensation insurance companies, offer resources and trainings to aid employers wellness initiatives.
Discrimination
This is simultaneously a simple and an incredibly complicated topic. No rational employer wants to be accused of discrimination in its hiring, benefits, promotions and termination activities. This notion ties right into the boarding, journey and disembarking themes of this articles title. First, claims expose an employer to the costs of remedying preventable problems and of regulatory oversight and private litigation. Second, those accusations can damage the employer’s reputation in the communities where it operates and in the marketplace generally. Finally, in keeping with the ROI matter addressed above, they tend to pivot employees operational focus away from productivity.
There are numerous statutes attending to workplace discrimination. Some examples of these include, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Pregnancy Discrimination Act, the Genetic Information Nondiscrimination Act of 2008, the Lilly Ledbetter Fair Pay Act of 2009, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act and Section 1981 of Civil Rights Act of 1866. There are applicable state laws, as well.
There are also federal and state regulators. The principal federal regulator is the Equal Employment Opportunity Commission and statewide the Florida Commission on Human Relations.
Discrimination at all phases of employment can be intentional and single-employee directed, or it can be historic and longitudinal relating to classes of people. It can be avoided.
While the subject of workplace anti-discrimination principles and practices constitutes entire courses, there are measures employers can take from a proactive risk-management perspective.
To address the anti-discrimination outcomes, businesses must start with an approach. Business should not take employment-related actions that benefit or harm a protected class of people based upon their race, color, national origin, religion, gender, age or physical, genetic and mental conditions.
Employers must apply basic focus to recruiting, retaining and terminating. There are a large number of techniques to apply the overall approach to the real world. For example, do not ask direct or indirect questions during the application and interview processes, as they could illegally treat people differently due to their falling within a protected class. Be sure to make hiring, promotion, compensation and benefits allocations and termination decisions based upon objective and stated criteria and performance against those criteria. Engage in recruiting, ongoing employment and termination interviews with at least two witnesses present, one of who should be the same gender as the employee involved and accurately document everything. None of this is as easy as it appears.
Technical Compliance
While this will be the briefest of the three subjects addressed, it is no less relevant than the others. Simply put, employers must be certain to notify employees of the pertinent requirements and complaint or whistleblowing resources, maintain all required records for the full duration of the documents retention periods, timely report employment, benefits and tax information to the regulators concerned and cooperate with inspections and audits.
Here are just a few practical examples: Observe the collective employment requirements enforced by the National Labor Relations Board in qualifying workplaces. Place standard federal/state all in one employment notification posters and conduct and timely report benefits tests.
The word timely appears a couple of times above and it is a significant metric, which an employer can readily address through the use of a recurring calendar.
As we approach the final destination of our trip…
…we realize there is no true final destination. Rather, there is a large and evolving conglomeration of federal, state, and local laws, rules, ordinances and regulators. Each creates their own criteria, tests, inspection scenarios, document retention and reporting requirements and sanctions. By developing and implementing proactive risk management-based policies, practices and procedures, through the use of checklists and recurring calendars, an employer can take a seemingly endless menu of protocols and make them effectively routine, ordinary course and second nature. Allowing everyone, employers and employees alike, to sit back and enjoy the ride.
NOTICE: The article above is not intended to serve as legal advice, and readers should not rely on it as such. It is offered only as general information. Readers should consult with an attorney regarding their legal matters, as every situation is unique.
For more information, call Philip N. Kabler, Esq. of the Gainesville, FL office of Bogin, Munns & Munns, P.A. at (352) 332-7688, boginmunns.com, where he practices in the areas of business, real estate, banking and equine law.
PHILIP N. KABLER is an Incubator Resource for the Santa Fe College Center for innovation and Economic Development (CIED), and has taught various courses at the UF Levin College of Law and at the UF Warrington College of Business (undergraduate and graduate.) He is also the current president of the North Florida Association of Real Estate Attorneys, and a member of The Florida Bar’s Professional Ethics Committee.