You asked it during our Why HR Should Matter to Small Businesses Now More than Ever Webinar, now we’re answering it!

Listen to the recording to get answers to your toughest questions that we weren’t able to cover during the webinar. Plus, get exclusive insights and even more guidance from labor law attorney, Shanna Wall, Esq.

In case you’d rather read the short version of your answers to the webinar, here’s the recapped summary of questions and answers.

1. How does a company handbook differ when you’re hiring mostly contractors versus employees? How does the document storage differ for contract employees?

  • Independent contractors are not employees; therefore, most employment laws do not apply to independent contractors.
  • Basic policies such as attendance, PTO, etc., do not apply to independent contractors.
  • Independent contractors make their own hours, use their own resources and the company doesn’t control it as they would actual employees.
  • As far as document storage – independent contractors may have different record-retention requirements. Most employment laws don’t apply, but you still need to keep some records for them to protect yourself. You want to make sure you have an independent contractor agreement, and for tax purposes, you need a Form W-9 instead of W-2, for example.

2. What is the best way to distribute an emh2loyee handbook to ensure that all employees have access?

  • That is a business decision to be determined by what is best for the company and the employee.
  • You may have to distribute handbooks in more than one way – such as physically distribute on day of hire, email a copy, post it on the company intranet, etc.

3. Are any parts of the hiring process absolutely critical other than the job application?

  • Background checks are very important.
  • Job-related skills/employment tests may be critical, depending on the job position.
  • You also may want or need to do drug testing, depending on the job position or your state’s workers’ compensation requirements.

4. How can I ensure my job application is compliant?

  • Use state-specific, attorney-written and approved applications. Make sure they include any state requirements such as specific criminal questions/ban-the-box, if required.
  • Make sure they do not include salary history if it is prohibited in the state or city you are in.
  • Some states may even have mandatory disclosure requirements that need to be added on to the job application.

5. Can an employer discipline an employee for things posted on his/her social media accounts outside of the office (i.e. discriminatory or offensive language or media)?

  • The short answer is yes, in certain circumstances you can discipline employees for things they post on their social media accounts if it violates a company policies such as posts that are discriminatory or harassing. However, some content may be protected under the National Labor Relations Act such as complaints about work conditions. Be careful when disciplining after hours/off the clock behavior or social media posts, and make sure the behavior isn’t a protected activity. It’s best yet to consult with a labor attorney before disciplining the behavior if you are unsure if it’s protected.
  • Just to expand a bit further to generally discuss off-duty conduct. Sometimes outside conduct though it may not shine the brightest light on the company could be considered protected – such as attending a protest or again, posting on social media to complain about work conditions. In scenarios like that, you cannot discipline or retaliate against the employee for protected conduct. Generally, unless the conduct is protected in some legal way, you have the right to discipline or even terminate employees for off-duty conduct, unless, of course, state law specifically prohibits you from doing so.
  • There are some states – California, for example, that have laws stating that employers cannot discharge or otherwise discriminate against an employee or applicant for engaging in lawful conduct outside of working hours away from the employer’s premises. Likewise, in California, employers cannot make any rules or policies that forbid employees from participating in politics or attempt to coerce or influence political action or activities. Some states also say you cannot require an employee to refrain from smoking or using tobacco products outside of work (Connecticut, DC), or you can’t discipline employees for their reproductive choices (Delaware, DC).
  • There are other state-specific laws to pay attention to here, but even if the state is silent as to what conduct you can discipline, the question really becomes more so, should you? Does the conduct reflect poorly on the company? Does the conduct lower productivity in some way? The severity or extent of the conduct: Was it an arrest or was it for something minor like parking violations?  How would it effect company morale? Do you have a policy in place that would prohibit such activities? What have you done in the past in similar situations? Those are all things to consider when deciding what to do about off-duty conduct.