How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Hogge Law
500 E. Plume Street, Suite 800
Norfolk, Virginia 23510
(757) 961-5400
A law firm specializing in serving the needs of
Virginia public and private employers
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
IMPORTANT NOTICE:
This presentation is intended to be used
solely for informational purposes,
and is not offered as legal advice.
For assistance in conducting an
employment law audit,
contact attorney Raymond L. Hogge, Jr. at
(757) 961-5400
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit
 Minimize the risk of employment-related lawsuits
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit
 Reduce employment-related costs (recruiting, training,
unemployment comp, workers' comp, legal expenses)
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit
 Improve productivity, efficiency, morale, and retention
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Benefits of An Employment Law Audit
 Management can sleep at night
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Title VII of Civil Rights Act of 1964
 15 employee minimum
 Race, color, sex (including pregnancy), religion,
national origin
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Americans with Disabilities Act
 15 employee minimum
 Pre-hire; conditional offer of employment; posthire
 Critical concepts: Disability, reasonable
accommodation; undue hardship
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Rehabilitation Act
 Applies to certain employers with government
contracts or grants
 Similar to ADA
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Age Discrimination in Employment Act
 20 employee minimum
 Age 40 or older
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Family and Medical Leave Act
 50 employee minimum
 Covered employers, eligible employees;
qualifying reasons for leave
 Notification requirements
 Certification requirements
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Fair Labor Standards Act
 Minimum wage
 Overtime compensation
 Child labor
 Recent changes to exemption rules for
minimum wage and overtime compensation
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Davis-Bacon Act
(certain government contractors)
 Prevailing wage rate
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Government Service Contract Act
(certain government contractors)
 Prevailing wage rate
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Employee Retirement Income Security Act (ERISA)
 Employee benefit plans
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Consolidated Omnibus Budget Reconciliation Act
(COBRA)
 20 employee minimum
 Health care continuation coverage
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Internal Revenue Code
 Payroll taxes
 Employee benefit plans
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Immigration and Naturalization Act
 Form I-9
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Constitutions
(public employers)
 Due Process
 Equal Protection
 Free Speech
 Religious Freedom
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Virginia Workers' Compensation Act
 Reporting injuries and accidents
 Physician panel
 Handling claims; assessing defenses
 Actual Risk; not positional risk
 Return to work strategies
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Virginia Unemployment Compensation Act
 Resignation
 Termination
 Misconduct
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Virginia Payment of Wage Law
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Virginia Human Rights Act
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practices comply with
applicable federal, state, and local laws
 Local Ordinances
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies and practice meet
requirements of contracts or grants
 Prevailing wage rates
 Affirmative action
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies meet the needs of the
organization
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether practices match policies
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Goals of An Employment Law Audit
 Determine whether policies are adequately
communicated to employees
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Framework for the Audit
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Framework for the Audit
 The Employee Handbook
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Framework for the Audit
 The Employee Handbook
 The Employee Handbook should define the
employment policies
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Framework for the Audit
 The Employee Handbook
 The Employee Handbook should define the
employment policies
 The employment policies should define the
employment practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Framework for the Audit
 The Employee Handbook
 The Employee Handbook should define the
employment policies
 The employment policies should define the
employment practices
 The employment practices should
 Comply with applicable law
 Promote the interests of the employer
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
 Should reflect all policies and practices of the employer
 Hiring and promotion
 Performance and evaluation
 Discipline and discharge
 Dispute Resolution
 Wages and benefits
 Safety and health
 Other
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
 Should contain contract disclaimer
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
 Should contain reservation of employer right to modify
policies
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
 Should contain statement that employee benefits are
governed by applicable master plan documents and
insurance policies
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
 Should contain employment-at-will policy
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
 Should contain acknowledgment form to be signed by
employee
 Acknowledge receipt
 Read before beginning work
 Contract disclaimer; employer right to revise
 At-will
 Violation of policies results in discipline or discharge
 If questions, will ask
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
 Should be distributed to each employee before he or
she begins work
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
 Publication method
 Print
 Easy to track changes
 More expensive than online
 Online
 Tracking changes requires diligence
 Less expensive than print
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Employee Handbook
 Should give the best possible impression of the
employer
 By example, shows employees the level of quality
the employer expects
 Should be suitable for use as recruiting tool
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices
 General EEO policy and practices
 Title VII
 Age Discrimination in Employment Act
 Equal Pay Act
 State statutes
 Local ordinances
 Contractual requirements
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices
 Sexual (and other) harassment policy and practices
 Reporting system
 Investigation procedures
 Temporary measures
 Confidentiality
 Rights of accused v accuser
 Use of dispute resolution procedures
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices
 Affirmative action policy and practices
 If and only if applicable
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices
 Disability accommodation policy and practices
 Pre-hire
 Post-hire
 Essential functions of job identified in job
description?
 Interactive process
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices
 Non-retaliation policy and practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit EEO Policies and Practices
 Incorporation of
 Grievance procedure
 Open door policy
 Arbitration
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Job Descriptions
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Job Descriptions
 Are the job duties clearly stated?
 Most important duties should be listed first
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Job Descriptions
 Are all essential functions of the job identified?
 Reliable time and attendance
 Physical demands
 Interpersonal skills
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Job Descriptions
 Do the requirement of the job as stated in the job
description have the effect of discriminating against
applicants on the basis of any protected status (race,
sex, disability, etc.)?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Job Descriptions
 If the job is FLSA-exempt, does the job description
clearly demonstrate the exemption is applicable?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of recruiting methods
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of recruiting methods
 Promotion v. posting v. advertisement
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of recruiting methods
 Use of recruiters
 Contract between employer and agency
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of recruiting methods
 Use of staffing agencies
 Contract between employer and agency
 Legal duties of employer and agency
 Allocation of risk between employer and agency
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of recruiting methods
 Use of professional employer organizations
 Contract between employer and PEO
 Legal relationship between employer, PEO and
worker
 Allocation of risk between employer and PEO
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of recruiting methods
 Contents of advertisements legal?
 Statement discriminatory
 "EEO" statement required?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of recruiting methods
 Affirmative action required?
 Have federal or state contract?
 Receive federal or state funds?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of application forms
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of application forms
 Should state how long application considered active
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of application forms
 Should contain employment-at-will disclaimer
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of application forms
 Should contain falsification or omission of
information provision
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of application forms
 Should contain authorizations necessary for
information verification, reference checks, credit
reports
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of application forms
 Should contain authorizations necessary for
 Information verification
 Reference checks
 Credit reports
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of application forms
 Should contain arbitration agreement, if arbitration
of employment disputes is desired
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of application forms
 Should not contain potentially discriminatory
questions, e.g.:
 Workers' compensation history (ADA)
 Medical conditions (ADA)
 Arrest records (Title VII)
 Marital status (Va. Human Rights Act
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of selection process
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of selection process
 Interview procedures and questions should be
determined in advance and consistently applied
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of selection process
 Interview questions should be job-related
 Interview questions should reflect job requirements
set forth in written job description
 Consider using written job description during
interview
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of selection process
 Interviewers should make written record of all
relevant information
 Interviewers should not record information
which could be interpreted as discriminatory or
otherwise unlawful or inappropriate
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of selection process
 Medical information
 Should follow 3-stage process required by ADA
 Pre-offer
 Conditional offer of employment
 Post-hire
 Should ensure strict confidentiality
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of selection process
 All tests given to applicants should reflect job
duties stated on written job description
 Tests should be assessed to identify potential issues
under ADA, Title VII, etc.
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of selection process
 All reference should be checked
 Written record should be made of all
information received
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of selection process
 Credit checks should be performed only in strict
compliance with applicable law
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of selection process
 Selection should be based upon job-related criteria
stated in the written job description
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of employment documents
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of employment documents
 Hiring should be confirmed in writing (letter / form)
 State job title
 State date of hire
 State rate of pay
 State FLSA exempt / non-exempt status
 Refer to employee handbook
 Refer to arbitration, if used
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of employment documents
 Use written employment contracts for executive
and highly compensated employees
 Contract will supersede all prior agreements
 Specify how employment may be terminated
 Consider non-compete and non-disclosure
 Consider buy / sell if ownership interest
 Have contracts reviewed by attorney first
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of employment documents
 Non-compete agreements
 Restrictions must be no greater than necessary
to protect employer interests
 Restrictions must not unduly interfere with
employee ability to earn a living
 Restrictions must not be against public policy
 No "blue pencil" in Virginia
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of employment documents
 Non-disclosure agreements
 Protect confidential information and trade
secrets
 Consider for executives, sales, and technology
personnel
 Do not make overbroad
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of employment documents
 Arbitration agreements
 Consider using arbitration agreements to
reduce litigation costs
 Specify arbitration protocol
 Specify disputes subject to agreement
 Specify disputes not subject to agreement
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of employment documents
 Consent to drug / alcohol testing
 Specify types of testing (random, post-accident,
etc.)
 Meet requirements for regulated industries
(e.g., trucking)
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of employment documents
 Proof of citizenship
 Form I-9
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Hiring Practices
 Assessment of employment documents
 Personnel file
 Maintain separate medical file
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Evaluation Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Evaluation Practices
 Evaluations should follow schedule stated in employee
handbook
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Evaluation Practices
 Evaluations should be based upon job duties stated in
written job description
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Evaluation Practices
 Evaluations should be in writing, using established
forms and rating systems
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Evaluation Practices
 Evaluations which call for improvement should be
followed by a written corrective action plan
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Evaluation Practices
 Employees should be able to use grievance procedure
to challenge evaluations with which they disagree
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Evaluation Practices
 Evaluations should be confidential, and shared only with
managers and supervisors who have a need to know
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices
 Employee discipline should be based upon standards of
conduct stated in employee handbook
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices
 In most circumstances, progressive discipline should be
used
 Egregious offenses may support immediate
termination
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices
 Discipline should be applied consistently
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disciplinary Practices
 Employees should be able to use grievance procedure
to challenge disciplinary actions with which they
disagree
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Termination Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Termination Practices
 Dismissal should be supported by adequate
documentation of the reasons for dismissal
 Prior documentation in personnel file
 Written notice of termination
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Termination Practices
 Employees should be able to use grievance procedure
to challenge termination actions with which they
disagree
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Termination Practices
 Dismissal should be conducted in person when possible
 Two members of management
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Termination Practices
 A written record should be made of the employee's
response to dismissal or reason for resignation
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Termination Practices
 Exit interviews should be conducted when possible
 Written exit interview form
 Two members of management
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Termination Practices
 Safeguard employer property
 Keys
 Documents
 Equipment
 Computer passwords
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Termination Practices
 Employee's personal items
 Supervise removal
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Termination Practices
 Payment of wages
 Virginia Payment of Wage Law
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
 Grievance procedure
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
 Grievance procedure
 Grievance forms - clear and understandable?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
 Grievance procedure
 Offender by-pass included?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
 Grievance procedure
 Public employers - grievance procedure should
reflect applicable statutory and due process
requirements
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
 Open-door policy
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
 Open-door policy
 Relationship to grievance procedure explained?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
 Arbitration (if employer uses arbitration)
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
 Arbitration (if employer uses arbitration)
 Arbitration agreement enforceable?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Dispute Resolution Practices
 Arbitration (if employer uses arbitration)
 Arbitration agreement signed by all employees
before beginning work?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
 Applicable Laws
 Fair Labor Standards Act
 Portal to Portal Act
 Equal Pay Act
 Federal statutes applying to federal contractors and
recipients of federal funds (e.g., Davis-Bacon Act)
 Virginia Payment of Wage Law
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
 Fair Labor Standards Act
 Regulations govern:
 Minimum Wage
 Overtime Pay
 Child Labor
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
 Fair Labor Standards Act
 Assess whether hours worked are calculated
correctly.
 Calculated on workweek basis
 De minimus (20 minute) breaks = working time
 Training time
 Travel time
 Other specific situations
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
 Fair Labor Standards Act
 Assess whether leave practices violate FLSA
 "Comp time"
 Available to public employers
 Not available to private employers
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
 Fair Labor Standards Act
 Assess whether employees are correctly classified
as FLSA-exempt
 Executive; administrative; professional; others
 Must meet specific requirements under
Department of Labor regulations
 New "Fair Pay" regulations recently adopted
 Job duties, not job description, controls
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
 Fair Labor Standards Act
 Assess whether employer practices threaten FLSAexempt status of employees
 Deductions for hours off
 Pay docking
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
 Fair Labor Standards Act
 Assess whether required time and attendance
records are being maintained
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Wage and Hour Practices
 Virginia Payment of Wage Law
 Frequency of wage payment
 Deductions from wage payments
 Must be voluntarily authorized in writing
 Interpretations by Virginia Department of Labor
and Industry
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Leave Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Leave Practices
 Identify relevant laws
 Virginia Workers' Compensation Act
 Title VII (including Pregnancy Discrimination Act)
and Virginia Human Rights Act.
 Americans with Disabilities Act and Virginians with
Disabilities Act
 Family and Medical Leave Act
 Industry requirements
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Leave Practices
 Identify other considerations
 Contracts
 Collective bargaining agreements
 Workplace safety
 Recruiting
 Retention
 Productivity
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Leave Practices
 Assess leave alternatives
 Vacation
 Sick leave
 FMLA leave
 Disability leave
 Paid Time Off
 Work Comp leave
 Military (USERRA) leave
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Leave Practices
 Assess practices for granting leave mandated by statute
 Pregnancy Discrimination Act (Title VII)
 Americans with Disabilities Act
 Family and Medical Leave
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Leave Practices
 Assess leave documentation
 Leave requests
 Should specify type of leave requested
 Medical certifications
 Use standard form
 Notification of leave rights and obligations
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Safety and Health Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Safety and Health Practices
 Workplace compliant with all OSHA standards?
 Fall protection standard
 Confined space standard
 Bloodborne pathogens standard
 Other standards
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Safety and Health Practices
 Safety policies adopted?
 Adequately communicated to employees?
 Explained in employee handbook or safety
manual?
 Employees receive regular training?
 Safety policies enforced by supervisors?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Safety and Health Practices
 Workplace violence policies adopted?
 Explained in employee handbook?
 Supervisors understand how to respond to threats
of workplace violence?
 Employees understand how to respond to threats of
workplace violence?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices
 Employer's First Report of Injury or Accident
consistently and timely filed with Virginia Workers'
Compensation Commission?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices
 Panel of 3 physicians consistently provided to injured
employee?
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices
 Assess process for returning injured employee to work
 Should be returned to work as soon as possible
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices
 Compensability of injury sufficiently assessed?
 Was there an "accident?"
 Did it "arise out of" employment?"
 Remember - Virginia is an "actual risk" state,
not a "positional risk" state
 Did it arise "in the course of" employment?
 Did it result from employee "misconduct?"
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Workers' Compensation Practices
 Assess coordination with Americans with Disabilities Act
and Family and Medical Leave Act
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices
 Assess "interactive process" to determine ADA
"reasonable accommodation"
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices
 Assess process for determining "undue hardship"
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices
 Assess process for determining "direct threat"
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices
 Assess process for obtaining medical certifications
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Disability Accommodation Practices
 Assess coordination with FMLA and workers'
compensation
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Other Important Employment Practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Other Important Employment Practices
 Assess electronic data communications practices
 Computers
 E-mail
 Internet
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Other Important Employment Practices
 Assess workplace security practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
Audit Other Important Employment Practices
 Assess protection of confidential information and trade
secrets
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
The final step in the employment law audit
 Written Employment Law Audit Report, including factual
findings and recommendations for changes in
employment policies and practices, is prepared and
submitted to management
 Management carefully considers the findings and
recommendations in the Employment Law Audit Report,
and implements appropriate changes, if any, to
employer policies and practices
How to Conduct an Employment Law Audit
Raymond L. Hogge, Jr.
For assistance in conducting your employment
law audit, contact attorney
Raymond L. Hogge, Jr. at
(757) 961-5400
This presentation may be downloaded
at no charge on
VirginiaLaborLaw.com