HR Problems and Solutions
Problem: We just received an EEOC complaint. What do we do now?
Solution: Immediately notify your legal counsel and internal HR while restricting access to only a small, necessary group of people. Avoid any actual or perceived retaliation against the employee who filed the complaint to prevent additional legal risks. Decide whether to pursue mediation through the EEOC or conduct an internal investigation. Internal investigations must be thorough and impartial. Interview witnesses and gather all relevant documentation. The EEOC will review your findings and either deny the complaint, issue a “right to sue” letter allowing the employee to pursue private legal action, or proceed with their own process. Consider engaging legal counsel to ensure you’re handling the situation appropriately and minimizing legal risks.
Problem: We're not sure if we're classifying employees correctly. What if we're wrong?
Solution: All employees can be classified as hourly, non-exempt workers as a safe default, but if they pass certain federal and state-level tests, they can be classified as an exempt, salaried employee. State requirements typically supersede federal ones, so many employers focus on meeting their state’s DOL criteria, often called ABC or 123 tests.
Immediate remediation is essential upon discovery of misclassified employees. This involves reclassifying the employees, updating their offer letters and other documentation, notifying them of the change, and calculating any back overtime pay owed. Salary employees don’t typically track overtime hours, so you’ll need to work directly with affected employees to reconstruct hours during the misclassified period.
Conduct annual or bi-annual classification audits to catch potential issues. Taking swift corrective action if errors are discovered demonstrates a good-faith effort, which can minimize penalties during future DOL audits.
Problem: There are so many HR laws, rules, and regulations. Which ones do we even need to follow?
Solution: Use a funnel strategy, starting with broad federal requirements and narrowing down to specific applications. Begin with the four core federal laws that apply to most businesses: EEO laws, FMLA for eligible employers (companies with 50+ employees), FLSA for wage and hour compliance, and OSHA for workplace safety. Examine state-specific requirements, as some states have extensive additional laws that change often, while others largely mirror federal requirements. Identify any industry-specific regulations that apply to your business. Industries such as healthcare, construction, and warehousing often have specialized requirements administered through federal agencies. Consider hiring an HR consultant or attorney with expertise across all 50 states to ensure ongoing compliance and help you navigate the combination of laws that apply to your company.
Problem: An employee just asked for medical leave. Is this FMLA, or ADA, or both?
Solution: Determine FMLA eligibility, which has specific requirements for employers and employees. Employers must have 50 or more employees within a 75-mile radius of each other or the main office, including remote workers. If your company qualifies for FMLA coverage, evaluate whether the individual employee meets the criteria of having performed 12 consecutive months of service with at least 1,250 hours worked during that period. If both your company and employee qualify for FMLA, provide the appropriate paperwork for medical certification to determine the amount and type of leave needed.
The ADA may also apply when an employee needs intermittent leave or schedule modifications due to a documented disability or when an employee has exhausted their 12 weeks of FMLA leave but needs more time off due to their medical condition. The ADA functions as an umbrella protection for anyone with a documented disability, regardless of company size or tenure. It requires an interactive process between the employer and employee to determine reasonable accommodations. The FMLA provides specific time-limited leave, while the ADA can provide ongoing accommodations, including modified schedules, additional leave, or other adjustments that enable the employee to work.
Problem: We have a high-drama, toxic employee. It's performance, personality, and maybe something else, too. What do we do?
Solution: The most effective approach is to focus on objective, job-related behaviors rather than subjective characteristics or personality traits. Document specific, measurable performance issues such as missing deadlines, chronic tardiness, policy violations, confidentiality breaches, or disruptive conduct. Avoid using trigger words like “toxic” or “dramatic” in documentation, instead emphasizing concrete behaviors, their impact, and which policies they have violated.
Carefully review whether the employee has recently engaged in protected activities, including filing harassment complaints, submitting EEOC charges, or requesting leave. If performance issues arose before these activities, ensure you have solid documentation from the preceding period. Remember, you cannot change your documentation standards or increase scrutiny because an employee exercised their legal rights.
Build a consistent process that includes timely coaching conversations, clear expectations for improvement, and regular check-ins. Define what success looks like, establish measurable goals, and maintain accountability by following up. Taking a systematic approach protects the company and provides the employee with clear opportunities to improve their performance.
Problem: Can we treat an employee who files a harassment complaint as an underperforming employee and put them on a performance plan?
Solution: No. Placing an employee on a performance improvement plan immediately after they file a harassment complaint typically constitutes illegal retaliation. However, if clearly documented performance issues existed before the harassment complaint was filed, you may be able to continue with a previously established performance management process.
Solid documentation that predates the protected activity is the critical factor. If you have been consistently documenting performance problems and following your company’s normal progressive discipline process before the complaint was filed, you can generally continue the process. Note that when continuing this process, you cannot change your standards or increase scrutiny. The documentation must prove that concerns were identified and addressed through standard procedures prior to the protected activity.
If performance issues arise after a harassment complaint is filed, proceed with caution and consider engaging an attorney or external HR consultant. The legal risks vary significantly depending on your prior documentation, the nature of the complaint, and how your organization handled the complaint internally. Each situation requires individual assessment.