In the fast-paced world of employment law, where scandals and groundbreaking lawsuits are frontpage news, more mundane requirements for documentation thatemployers provide to candidates and employees can fall through thecracks. While these requirements may not be as sensational as thelatest sexual harassment allegations or the potentialrepeal or scaling back of the Dodd-Frank Act, overlooking them can exposeemployers to potentially devastating liability.

Below is a checklist of fundamental provisions and best practicetips with regard to standard documents maintained by employers thatare frequently omitted or neglected by even the most sophisticatedemployers. This checklist concerns important employment law issuesunder New York and Federal law. To the extent an employer hasemployees in jurisdictions other than New York, it is imperative toconsult local counsel regarding these issues.

1. Employment contracts/offer letters

• Overtime

While often required by law (see New York State Wage Theft Prevention Act), evenwhere it is not mandatory, it is the best practice to clearlydelineate in an offer letter or contract whether an employee'sposition is eligible for overtime pay.

• Arbitration

Determine whether to include an arbitration provision and, ifso, make sure the clause expressly includes discrimination claims,and consider whether to include a class action waiver.

• Confidentiality

Omit language forbidding employees from disclosing compensationinformation, as such prohibitions are against the law in a growingnumber of jurisdictions, including New York, and are disfavored bythe NLRB. In addition, include a carve-out that permits employeesto report possible violations of law to, and participate ininvestigations by, government authorities or self-regulatoryorganizations. See 2 below.

• DTSA

Include the Defend Trade Secrets Act's (DTSA) "immunity notice"in connection with nondisclosure provisions to ensure availabilityof the company's remedies of double damages and attorneys' fees forpotential claims under the DTSA.

• Bonuses

Include clear language stating that bonuses are discretionaryand that the individual must be employed on bonus payday to beeligible to receive a bonus.

2. Separation/severance agreements

• Carve Outs

Ensure that nondisclosure agreements include carve-outprovisions that permit the individual to report possible violationsof law to, and participate in investigations by, governmentalauthorities or self-regulatory organizations such as the SEC, OSHA,FINRA and the EEOC.

• Rehiring

Consider including a provision stating that the individual willnot apply for employment with the company and/or the company willnot rehire the individual, keeping in mind those provisions aregenerally disfavored by the EEOC.

• Continuing Obligations/Company Property

Reference continuing post-employment obligations, such asnoncompetition, nonsolicitation, and confidentiality, and attachdocuments previously executed by the former employee. Direct formeremployees to return all company information and property, and toaffirm that they have retained no electronic versions of suchmaterial, whether on email accounts, hard drives, cloud storage orotherwise.

• DTSA

See 1 above.

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3: Employee handbooks/policies

• Paid Family Leave

Be aware of the requirements of the New York Paid Family LeaveAct, which is effective Jan. 1, 2018. Final regulations wereadopted on July 19, specifying mandatory information for employersto provide to employees in their policies.

• New York City Sick Leave

New York City employers must ensure compliance with the EarnedSick Time Act, which mandates specific information be contained inemployer policies and notice be provided to employees.

• Recording

Consider removing broad policies prohibiting employees fromtaping conversations in the workplace, in light of the SecondCircuit's decision affirming the NLRB's prohibition of suchpolicies.

• Leave

Ensure that leave related to the birth, adoption, or placementof a child for foster care, separate and apart from disabilityleave, does not differ by gender.

• Bonuses

See 1 above.

• Company Property

See 2 above.

4: Hiring process

• Salary History

Several jurisdictions, including New York City as of Oct. 31,are following the trend of prohibiting inquiry about an applicant'ssalary history. In these jurisdictions, remove all requests forsalary history in applications and elsewhere and train recruitersand managers on appropriate interview questions to ask regardingcompensation.

• Criminal and Credit History

A growing number of jurisdictions, including New York City,prohibit questions regarding criminal history on applications orduring the interview process before a conditional offer is made,except in narrow circumstances. In addition, many jurisdictions,including New York City, prohibit checking or inquiring about thecredit history of applicants and employees, with limitedexceptions.