Self-Audit for the Workplace

ARE YOU DOING ALL YOU CAN TO PREVENT A LAWSUIT?

This preventative audit has been developed to assist employers in assessing their vulnerability to employment litigation. It is intended to highlight some potential problem areas, which could result in claims or litigation against an employer. This form is not intended to include all problem areas or considerations and is not intended as legal advice about any particular situation. As always, for specific advice, please consult with competent employment counsel.

Scoring:

Each "yes" answer is worth 2 points. Each answer of "somewhat," "sometimes," or "Yes, but not in the last year." is worth 1 point. Each "no" answer award 0 points.

Discrimination Policy

  • Does the company maintain anti-discrimination policies and/or written procedures for the selection of employees for hiring, promotion, transfer, layoff, salary increases, work assignments and other employment actions?
  • Does the company have an Equal Employment Opportunity policy?
  • Are all of the above policies clearly spelled out in the employee handbook?
  • Are appropriate posters clearly displayed explaining state and federal equal employment and federal contractor laws?
  • Is the company required to file an EEO-1 Report (employers with 100 or more employees or federal contractors with 50 or more employees are required to file) and has it done so?
  • Have the company's most recent EEO-1 forms been reviewed to determine appropriate representation of women and minorities in each EEO-1 category and whether such representation is increasing or decreasing?

Sexual Harassment Policy

  • Has the company adopted, communicated to employees, and consistently enforced a sexual harassment policy? Is this policy laid out in the employee handbook?
  • Does the company have a confidential sexual harassment complaint procedure that contains a bypass mechanism around the alleged harasser?
  • Do all employees receive annual training in recognizing and preventing sexual harassment?
  • If so, do all employees sign their name and certify their attendance at such training?
  • Is there an option for employees to complain about the harassment verbally as opposed to in writing?

Other Forms of Harassment

  • Does the company have a complaint procedure for other forms of harassment?
  • Do all employees periodically receive training in recognizing and preventing harassment and discrimination?
  • Does the company use an outside investigator (ideally employment counsel) to investigate claims of "harassment" even when no protected class is involved (e.g. a white employee claims his supervisor creates a hostile work environment by putting him down a lot.)?

Safety and Health

  • Is there a written safety program and a procedure for handling employee complaints?
  • Is the procedure and program clearly articulated in the employee handbook?
  • Is the Company in compliance with all relevant OSHA and state OSHA Acts, Form 200 Injury Logs, inquiry and illness prevention programs, and workers' compensation obligations?

Employee Handbook

  • Are the company's employment policies and procedures contained in the employee handbook reviewed annually by employment counsel to ensure compliance with the law?
  • Does the employee handbook clearly spell out exempt and non-exempt positions and require employees to take meal and rest breaks (which are verified by an employee signature)?
  • Does the employee handbook contain an at-will provision which employees are required to sign?
  • Does the employee handbook clearly indicate the lack of a contractual relationship between employee and employer and require an employee signature on this topic?
  • Does the employee handbook contain information on leaves, and other legally required information?
  • Does the handbook contain all policies and procedures that are important to the company and/or require uniformity in their administration?
  • Specifically does the employee handbook contain information on: vacation and sick time, jury duty, FMLA/CFRA/PDA leave and dates when relevant forms must be submitted; harassment/discrimination policy; termination policy; and arbitration?

Recruitment and Orientation

  • Are all employment applications in compliance with federal and state laws?
  • Are on-file applications reviewed when there are job openings?
  • Are open positions posted internally and externally?
  • Are all interviewers appropriately instructed as to what they may or may not ask an interviewee under California Law?
  • Are applicants asked to sign reference consent forms and are references appropriately checked before an offer of employment is made to the applicant?
  • Are background checks performed by an outside third-party service? Is the Fair Credit and Reporting Act followed?
  • Do new hires sign indicating receipt of the handbook and other orientation material?
  • Do job descriptions accurately reflect the actual duties of employees, particularly those in exempt positions?
  • Are the duties of all positions routinely reviewed to be sure they are accurately classified as exempt or non-exempt?

Evaluations

  • Do managers continually evaluate the performance of their employees and discuss it with them outside of the performance evaluation process? Does the employee's file contain evidence of this?
  • Are managers trained on how to document an employee file and give constructive feedback, both positive and negative?
  • Do managers consistently document performance concerns and place the documents in the employee file?
  • Are employees initially hired on a probationary basis?
  • Are written performance evaluations completed at the end of an employee's introductory period and on a periodic basis thereafter?
  • Do the standard evaluation forms contain the name and status of the evaluator and contain essential criteria?
  • Is a meeting held to review the evaluation and obtain the comments and signature of the employee?

Disciplinary Procedures

  • Are disciplinary rules effectively communicated to employees and supervisors?
  • Do all supervisors receive instruction on how to enforce the disciplinary rules fairly and consistently?
  • Is a system of progressive discipline followed which includes a thorough investigation, including an opportunity for employee input, prior to the imposition of discipline?
  • Are unionized employees allowed a representative at investigatory discipline meetings/interviews?
  • Is appropriate documentation maintained, including oral warnings (documented by the supervisor), written warnings, and memoranda related to informal reprimands? Do employees sign all such forms?
  • Is there a procedure for reviewing prospective terminations prior to actual termination?
  • Is severance pay in exchange for a release of claims form offered to each terminated employee?

Complaints

  • Are employees permitted to bring complaints to supervisors in an informal manner?
  • Is there a formal complaint resolution procedure which is communicated to employees and allows employees to bypass their immediate supervisor if need be and/or choose a management representative they are comfortable with in bringing a complaint?
  • Are supervisors instructed as to their role in the complaint resolution procedure in order to encourage its use and ensure that complaints are addressed in a timely manner?
  • Are the nature of complaints and action taken appropriately documented?
  • Is an outside investigator (ideally employment counsel) hired to investigate all complaints that are potentially legal in nature?
  • Are the results of that investigation shared with the complaining party?
  • When a complaint is found to have merit is discipline imposed on the offending individual?

Wage/Hour Law and Benefits

  • Is the company in compliance with the wage-hour laws, including those pertaining to overtime pay and exemptions, time record-keeping, wage deduction prohibitions and payment for training, orientation and "on call" time?
  • Are job positions routinely reviewed to ensure appropriate classification as exempt or non-exempt?
  • Are company supervisors responsible for making employment decisions familiar with company policies and applicable employment laws?
  • Are records of hours worked and overtime maintained for non-exempt positions?
  • Are records kept of employee attendance, sick leave, vacation, and other leaves?
  • Are employee benefit programs communicated to employees during orientation, in the handbook and when changes/improvements are made?
  • Are wage increases given in a fair and consistent manner, based upon as objective criteria as possible?
  • Are meal and rest breaks documented and signed off on by employees?

Fringe Benefits/ERISA/COBRA, etc.

  • Is the company in compliance with all COBRA obligations?
  • Does the company maintain ERISA plan documentation, disclosure obligations, fiduciary obligations, reporting requirements, and undocumented benefits?
  • If the employer is San Francisco based, are benefits reviewed to ensure they meet the minimum requirements of Healthy San Francisco and San Francisco mandated paid sick leave?
  • Has the company complied with its new COBRA premium obligations enacted in the February 2008 stimulus bill?

Leave

  • Are leave policies routinely reviewed to ensure compliance with local, state, and federal laws?
  • Does the company provide employees information on leaves and a form for medically approved leave?
  • Do managers and/or decision makers understand the rules about protected leaves and the interactive accommodation process?

General

  • Does the Company post information on employee rights under the EEO, OSHA, FMLA, CFRA, PDA, FLSA, wage and hour law, child labor law and other relevant laws?
  • Are all postings up to date?
  • Does the Company maintain records for legally required periods of time?