Kami Hoskins

Legal Tips for Small-Business Employers

It’s Small Business Week, and we’re celebrating. According to the U.S. Small Business Administration, small businesses represent 97.1 percent of all Arizona employers and employ 44.8 percent of private-sector employees. In honor of Small Business Week, below are six hot employment law issues that all Arizona small-business employers should know:

1. At-Will: Arizona is an at-will employment state. This means either the employer or the employee can terminate the employment relationship at any time with or without notice. This also means that an employer can fire an employee for good cause or for no cause at all. Be careful, however, because an employer may not fire an employee for any unlawful reason such as unlawful discrimination, unlawful retaliation, for exercising the employee’s statutory rights, or in violation of public policy.

2. Social Media: Whether an employer should monitor its employees’ social media activities is a topic of much debate. Social media content, like many forms of digital communication, can be highly relevant and fruitful evidence in disputes between an employer and its employees. It is also helpful for employers to know if employees are engaging in unlawful activities or making untruthful statements about the employer, its customers, other employees, or suppliers. Such conduct could open the employer up to liability and should be addressed with the employee.

On the other hand, the National Labor and Relations Act protects employees who engage in “protected concerted activity” regarding their working conditions, even if that activity is done on social media. For example, employees who take to social media to complain about their wages or other working conditions generally should not be fired or disciplined for that communication.

Social media can also be a resource for employers to learn about job applicants. Employers should remember, however, that information learned about an applicant should not be used to discriminate against the applicant unlawfully. Federal, state, and local anti-discrimination laws still apply.

3. Affordable Care Act Notices: As of October 1, 2013, most employers are required to provide notice to their employees about the Health Insurance Marketplace. The notice should inform employees: (i) about the Health Insurance Marketplace; (ii) that, depending on the employee’s income and what coverage may be offered by the employer, the employee may be able to get lower cost private insurance in the Marketplace; and (iii) that if the employee buys insurance through the Marketplace, the employee may lose employer contribution (if any) to their health benefits.

The notices are available on the U.S. Department of Labor website.

4. New Hire Checklist: A wise small-business employer maintains a new-hire checklist for each new employee. Things to consider adding to your checklist:

a. Job Description: it is helpful to provide a description of the employee’s job duties, the agreed upon wages, and working hours.

b. Eligibility to Work:

i. Is the employee authorized to work in the United States? Form I-9 and more information about E-Verify are available at the U.S. Immigration and Customs Enforcement website: http://www.uscis.gov/e-verify.

ii. Is the employee old enough to work in your industry? For example, a person must be at least 19 years old to serve alcohol in Arizona.

iii. Is the employee otherwise properly licensed to perform the job duties for which you’re hiring? For example, does the employee need a food-handler’s license, driver’s license, or any other license?

c. Complete employment tax forms.

d. Provide each employee with required notices regarding employee’s rights and benefits. Poster notices are available through state and federal agencies.

5. Employee Handbooks: Employee handbooks are helpful resources to small-business employers. A well-crafted handbook establishes the employer’s policies and its expectations of its employees. At a minimum, a handbook should include an at-will employment statement, as well as anti-harassment and anti-discrimination policies, paid and unpaid leave policies, and statements regarding what employee benefits, if any, the employer offers.

Often employee handbooks are sought in investigations of charges filed by employees and former employees with the Equal Employment Opportunity Commission, National Labor and Relations Board, and the Arizona Attorney General. Therefore, it is important for small-business employers to update employee handbooks regularly to comply with changes in the law and inform employees of any revisions.

6. Document, Document, Document: Be sure to keep detailed written documentation for every employee, such as payment and withholding of wages, requests for time off (both granted and denied), disciplinary actions, disputes with other employees, complaints by the employee, complaints about the employee, promotions, changes in wages (raises and reductions), transfers, demotions, and terminations.

Kami M. Hoskins is an attorney with Jennings, Strouss & Salmon, P.L.C., focusing her practice on labor and employment and bankruptcy. Ms. Hoskins represents small-business employers by implementing effective resolutions to complex legal issues. Each case a business or individual may face is unique and may require legal advice. This article does not constitute, and should not be considered, legal advice. Individuals are urged to consult with an attorney on their own specific legal matters.