Employment Screening – Getting It Done Right

Employment screening means, essentially, checking out a job candidate’s background. Is the person who he or she claims to be, with the qualifications stated in the resume or job application? Does the candidate have any criminal convictions or other disqualifying qualities or issues?It’s easy to get employment screening done nowadays – a few mouse clicks will get you an online report on just about anybody via one of the hundreds of Web-based employment screening companies out there. But, frankly, many of the screening services being offered online are cursory and, well, unreliable at best. Are you sure you’re really getting a valid, reliable screening report? Will it stand up to scrutiny if a legal issue (e.g., God forbid, a lawsuit) ever happens to your company? To judge this, you need to know a little about employment-related background checking, which is what this brief article is about.First, you should be aware that pre-employment screening in the U.S. is closely regulated by the federal Fair Credit Reporting Act and various state employment laws. The law does of course permit employers to conduct background checks on potential employees, but employers are required to disclose in writing to the job applicant that they intend to do so, and if an “adverse action” is taken due to information found in the background check (i.e., the person is not hired), then the employer has to inform the applicant of this and disclose the specific unfavorable information uncovered.Oftentimes, such unfavorable information consists of a criminal records finding. A thorough pre-employment check should always include a comprehensive criminal records search. If your job candidate has been convicted of fraud or other serious crimes in the past, this is obviously relevant to your employment decision (although the law requires you to consider each case of a criminal record finding on an individual basis in terms of its seriousness and job relevancy.)It’s also important to be aware that many “third-party” pre-employment screening services (especially Web-based companies) do a less-than-adequate job of searching criminal records. They simply don’t cast a wide enough net in their searches. Most conduct criminal records searches only in the state-of-residence or even just the county-of-residence of the job applicant. So your applicant may have a fraud conviction, or even a lengthy rap sheet, in another state, but come up clean on the pre-employment check.

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Many people with criminal records are quite aware of this shortcoming, and simply move out-of-state when job hunting.That’s why your screening company should run a national database criminal records search as part of the screening process. Unfortunately, the best national criminal records databases currently available to the public are incomplete. They omit data from numerous counties across the country and sometimes contain out-of-date data. So it’s important to supplement the national database criminal records search with onsite searches at county courthouses in your job applicant’s counties-of-residence. All reputable pre-employment screening agencies have this capability.Accepting your screening agency’s “standard” pre-employment screening report, if it checks for criminal records only in your applicant’s state-of-residence, is clearly inadequate. Your otherwise-impressive applicant may have a history of serious fraud convictions or other crimes in another state.But even the criminal records searches described above are not enough. To be really thorough, your screening agency must also check:– Aliases. Has your job candidate been convicted of a crime under another name?
— Warrants. Is your candidate wanted somewhere in the U.S.? Although you can’t legally deny an applicant a job for this reason, you can suggest that he/she reapply once the criminal warrant is cleared up. The same is true if the applicant is out on bail pending prosecution. You can ask the candidate to reapply after appearing in court and clearing the matter. (Note that you can’t legally inquire whether your candidate is in a drug rehabilitation program, however, as this may fall under the Americans With Disabilities Act, and compromise your position should litigation ever occur.)
— Federal convictions, such an income tax evasion, mail fraud, drug trafficking, and immigration law offenses.
— International “wanted” lists, such as Interpol’s.
— And yes, even terrorist watch lists. Why not? — it’s easy to do.Unfortunately, very few pre-employment screening companies are this thorough. To most, pre-employment screening is a “volume” business and each applicant you submit gets a quick and cursory (not to say “quick and dirty”) once-over. However, if you specifically request the above additional searches, most will comply.After An Employment Offer Has Been MadePast workers’ comp claims are the most obvious type of public record to research at this stage. You can’t legally check to determine if your job applicant has a history of making workers’ compensation claims prior to making an offer of employment. Workers’ compensation history searches must always be conducted post-offer. However, this type of information can obviously be a valuable tool in your fraud-fighting arsenal. Not only can it identify habitual claim filers, it can also help your company avoid placing new employees in positions that may pose risk of re-injury.Note, however, that employers may not rescind an offer due to finding claims and must make a reasonable effort to accommodate a previously-injured worker. Even so, a workers’ comp history search can be useful at the time a new employee is brought aboard in verifying his/her employment record supplied on the job application. If an applicant has failed to list a previous employer against which he/she filed a claim, this says something about the employee’s integrity and likelihood to file future claims.Currently, workers compensation history data is available in Alaska, Arizona, Arkansas, California, Florida, Idaho, Illinois, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Vermont, and Wyoming. California requires prior written approval by the California Department of Industrial Relations, Division of Workers Compensation Electronic Data Exchange (EDEX). Your pre-employment screening agency should be able to provide the needed forms.Workers compensation searches are not available in: Alabama, Colorado, Connecticut, Delaware, District of Columbia, Georgia, Hawaii, Indiana, Kansas, Maine, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Texas, Utah, Virginia, Washington, West Virginia, and Wisconsin.

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So criminal records (if thoroughly researched) and workers’ compensation histories can be extremely helpful — what other types of public information might be useful in the investigation of a suspicious claim? There are innumerable categories of records and searches that could be mentioned. Here are a few to consider:– Civil Suits. You can research civil suits online through most counties’ websites. A good listing of county websites and phone numbers is available on Background Check Gateway.
— Facebook, MySpace, and other social networking sites. Did your candidate post pictures of himself/herself surfboarding off Malibu while collecting disability? Interesting.
— Newsgroups. Did you know that at Google Groups you can search someone’s postings to newsgroups (of which there are thousands and thousands nowadays) going back years? Yet many people have no idea their postings are public information which can easily be tracked by their name or email address. What’s your candidate talking about these days in the NASCAR Enthusiast newsgroup?
— Blogs. Same principle. If your candidate, like millions of us, keeps a chatty public diary online (i.e., blog), you can listen in via IceRocket.com.
— Career sites. Is your candidate applying for other jobs by posting a resume on Monster.com or other career sites? It might be revealing to find out what qualifications he/she is claiming in those applications.– Real Estate. Has your candidate recently taken out a mortgage on a new house or condo? This can be an indicator of financial stability, an important qualification for many types of positions. You can research this at SearchSystems.net, among many other sites.Accessing public records used to be an incredibly difficult chore. Your main tool in the “old days” was shoe leather as you plodded from courthouse to courthouse digging out dusty records. Now, with the Internet, it’s easy. You can access public records on your job applicant or employee which are scattered nationwide in minutes. Give it a try and you’ll soon wonder why you never made full use of public records as an employment-screening tool before!

What Is Employment Law?

Employment law is that area of the law pertaining to employment. Also known as ‘labor law’, this covers rulings and precedents designed to protect the rights of workers and the organizations they work for. This helps to govern relationships between trade unions, employers, employees and candidates for businesses.Employment law can be further broken down into two categories. These are ‘individual employment law’ and ‘collective employment law’ respectively. The former here refers to of course the laws regarding an individual’s right in their workplace, while the latter refers to the relationships between employees, businesses and unions.A lot of this will revolve around what are known as ‘employment standards’ which are the set standards expected for employees legally for any employee and include things such as minimum wages, working hours and more.

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There are many organizations and individuals involved with the regulation and maintenance of employment law. For instance the US Employment Standards Administration is an agency in the United States concerned with ensuring that labor laws are made and followed. Meanwhile employment lawyers can be use by employees and unions as mediators and consultants, or to help them make cases and represent them in court. If for instance then you felt as though your working conditions failed to meet employment standards, or that your contract had been terminated illegally, or that you suffered some form of harassment or abuse in the workplace – then you might hire the services of an employment lawyer in order to receive some kind of compensation.The main feature of employment law in the majority of territories, is that the rights of both parties and their obligations will be outlined in the contract of employment. From this point on, both the employers and the employees will aim to fulfill their obligations in the contract and any breach might be disputed in court.However there are legislations and laws regarding what is written in the contract and there are certain things that can’t be agreed to according to common law. For instance many states require employment to be ‘at will’ – which means they will be able to terminate their contract by quitting as per their discretion.Thus if you were to find yourself feeling ‘trapped’ in employment, it may well be the case that your employers don’t legally have the right to keep you in their employ and that you are free to leave. In such a situation it would be advisable to use an employment lawyer in order to help yourself out of that situation.

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At the same time it is often required for organizations to include what are known as the ‘essentialia negotii’ (or ‘essential terms’) in any contract to ensure that the employee knows things such as the duration of their employment, their wages, their holiday allocation etc. Thus an employment lawyer might not only be helpful for fighting with your employers or for contesting their demands – but also for deciding whether or not to accept the terms of a contract initially.

Employed? Or Not Employed? That is the Question!

It might seem obvious that one of the primary criteria used to determine whether an individual is eligible for Unemployment Compensation is for that individual to have been actually employed by the perceived “employer” he was “working for” before his/her separation from said perceived employer. Although colloquial parlance equates “working for” someone/something with employment, Unemployment Compensation Law makes a distinction between those who “work for” someone/something under an employment relationship and those who have an independent contracting relationship. Consequently, when an individual applies for and is denied Unemployment Compensation, he may be shocked to learn that his denial is due to the fact that the person/entity he had been “working for,” for however long or short period of time, was never actually his “employer”. While some may say that this distinction appears to be mere hair splitting, its impact on whether an Unemployment Compensation claimant is granted or denied benefits is ultimately dispositive. That is, an individual who has an independent contractor relationship with an individual/entity is not eligible for Unemployment Compensation benefits if that relationship is terminated. It matters not whether the contracting relationship was terminated for “cause” or was “voluntary” – the mere existence of an independent contractor relationship renders the potential claimant ineligible for benefits. Therefore, it is crucial to know and understand the distinction between employment and independent contracting in the context of Unemployment Compensation and this article will lay out the criteria for the definition of independent contracting as it applies to the collection of Unemployment Compensation benefits.Under Pennsylvania Unemployment Compensation Law, if one is an independent contractor, then one is considered to be self-employed. Although the statute defines neither independent contractor nor self-employment, the statute does define “employment” essentially as follows: ” [s]ervices performed by an individual for wages shall be deemed to be employment subject to this act”. 43 P.S. § 753 (l)(2)(B). The statute continues, establishing basic guidelines as to what employment is not: “[one is deemed employed] unless and until it is shown to the satisfaction of the department that–(a) such individual has been and will continue to be free from control or direction over the performance of such services both under the contract for service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. § 753 (l)(2)(B).

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While describing what employment is not, the above quoted basic guidelines, conversely, establish the essential criteria for self-employment (i.e. independent contracting). Consequently, the Pennsylvania Courts use the following two-part test to determine whether an individual is self-employed (i.e.: independently contracting): (1) whether the claimant was free from control and direction in the performance of the work; and (2) the business is one that is customarily engaged in as an independent trade or business. (Venango Newspapers v. Com., Unemployment Compensation Board of Review, 158 Pa. Cmwlth. 379, 631 A.2d 1384 (Pa. Cmwlth. 1993), holding that where claimant did not receive on-the-job training, supplied his own tools and had no taxes deducted from the sums received, claimant was not an employee.) As the claim that an individual is not an employee but rather an independent contractor is essentially an affirmative defense made by the alleged employer against the claim for benefits, the alleged employer generally has the burden to prove that the claimant is not an employee.To determine whether an individual is free from the control and direction of an employer in the performance of work, the Pennsylvania Courts frequently look to eight factors. No one factor is determinative as to whether an individual is an employee or independent contractor, and the Court generally considers and weighs all eight factors in the employment relationship.The eight factors considered by the Court are as follows: first, the Court examines how the job was performed. Specifically, the Court is more likely to decide that an individual is an independent contractor if he sets his own hours, creates his own work/task agenda, and/or decides how many other workers are needed for a particular task. Second, the Court looks at whether there was a fixed rate of remuneration. Who decides the cost of the services being provided? Who decides when/if raises are granted? A worker who establishes his own pay rate and decides when his own pay rate increases or decreases is functioning more like an independent contractor than employee. Third, the Court notes whether taxes are deducted from the claimant’s remuneration. The Court is more likely to rule that a worker is an independent contractor if the worker receives a 1099 form and is able to deduct expenses and be responsible for paying his own taxes. Fourth, the Court also notes whether the alleged employer supplies the tools necessary to carry out the services being provided. If the worker must provide and use his own tools to carry out his tasks, the Court is more likely to rule that the worker is an independent contractor. Fifth, the Court ascertains whether the alleged employer offers on-the-job training. If an alleged employer provides on-the-job training, the Court is more likely to rule that there is an employment relationship. Sixth, the Court discerns whether there were regular meetings with the alleged employer. Regular meetings generally will signify an employment relationship. Seventh, the Court inquires into whether the claimant suffers risk of loss when claimant’s expenses exceed income. In other words, if the business fails, will the alleged employee merely lose his job, or will the alleged employee have the responsibility to satisfy the business “potential creditors If the alleged employee merely loses his job, and has no responsibility to address the business’ creditors, then the Court is likely to rule that he is an employee rather than an independent contractor. Eighth, the Court investigates into whether the claimant was compelled to look only to the employer for further employment. If a worker regularly sought and/or acquired the same or similar work from other sources, while already engaged with an alleged employer, then the Court is likely to rule that the worker had independent contracting relationships with his “employers. See, e.g., Venango, 157 Pa. Cmlwth. 379, 631 A.2d 1384 (Pa. Cmwlth. 1993); Kelly v. Comm., Unemployment Compensation Board of Review, 107 Pa. Cmwlth. 261, 528 A.2d 294 (Pa. Cmwlth. 1987) (holding that claimant was self-employed where claimant was paid a lump sum for his performance, and he was not compelled to look only to general contractor for further employment); Pavalonis v. Comm., Unemployment Compensation Board of Review, 57 Pa. Cmwlth. 289, 426 A.2d 215 (Pa. Cmwlth. 1981) (holding that claimant was self-employed when claimant supplied all of his tools and materials, did not receive any on-the job training, did not receive a fixed hourly wage and had no taxes deducted from the sums received from employers).

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To determine whether a business is one which is customarily engaged in as an independent trade or business, the Pennsylvania Courts consider two factors: (1) whether the claimant is capable of performing the activities in question for anyone who wish to avail themselves of the services; and (2) whether the nature of the business compel the individual to look only to a single employer for the continuation of such services. See, e.g., Venango Newspapers, 631 A.2d 1384 (Pa. Cmwlth. 1993); Kelly, 528 A.2d 294 (Pa. Cmwlth. 1987); Pavalonis, 57 Pa. Cmwlth. 289, 426 A.2d 215 (Pa. Cmwlth. 1981).The two above-mentioned factors essentially revolve around a worker’s loyalty to the individual/entity providing him with the work. Is the worker permitted to do the same work for two different (even competing) individuals/entities simultaneously? Does the worker recieve all of his work from a single individual/entity? May/must the worker seek work from more than one source? Perhaps most importantly, who decides where the worker can perform his services? If a worker is constrained to work for a single individual/entity and/or cannot select himself where he will perform his services, then the Court will weigh these factors in favor of the worker being in an employment relationship rather than an independent contracting relationship.Significantly, the amount of money a worker receives is not a determinative factor in these analyses, as even a small sum earned does not automatically remove the designation of “independent contractor”.Ultimately, all of the above factors can essentially be reduced to a single word: freedom. Does the worker have the freedom to set his own schedule? The freedom to establish his own pay rate? The freedom to work for competing businesses simultaneously? As a corollary, does the worker have to bear the responsibilities associated with this freedom, such as deducting his own taxes, using his own tools, and bearing the risk and burden of financial loss in the business? In the end, the more freedom a worker has the more likely the Court will find that he is an independent contractor (self-employed); the less freedom a worker has the more likely the Court will rule that the worker is an employee.

Do You Need An Employment Lawyer?

An employment lawyer is a legal representative who specializes in employment-related cases. If you believe that you have been wrongfully terminated, sexually harassed, treated unfairly and discriminated against, an employment attorney can guide you in your rights as an employee.In addition to this, employment advocates often handle labor-related disputes, including issues regarding financial discrimination, worker’s compensation, wages, and other types of injustices. So if you have recently been a victim of such discrimination or injustice, you should immediately contact a competent employment attorney. The lawyer will advise you in such a situation. Also, he or she will defend you at the court of law. Furthermore, he/she will handle all the paperwork and present arguments in your favor to win the case.Does an Employer Need an Employment Lawyer?As an employer, you also need the services of an attorney. While it is the responsibility of the employer to handle most of the employment issues, some matters are quite tricky and difficult to deal with. Thus, you will need the help of a lawyer conversant with matters employment. An employment attorney helps you stay abreast of changing labour laws, which may be difficult for you to understand or interpret in your own. He or she can review any agreements you entered with your employees, such as severance agreements and employment contracts.

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He/she can review personnel policies or employee handbook to ensure legal compliance. In addition to this, a lawyer protects you against violating laws pertaining to occupational safety & health, pay checks, family leave and overtime pay just to name but a few. An employment advocate can also advise you when it comes to making critical decisions such as whether dismissing an employee is lawful and what steps you can take to reduce the risk of a potential lawsuit.An Employment lawyer will offer you the best defense against the injustice done to you. Whether it is a case of harassment by the employer or a case of worker’s discrimination, a competent and experienced lawyer will be able to defend you in the most professional manner.Such a legal expert may also represent you to negotiate for compensation amount because if you don’t hire his services you might get cheated by the employer. For example, an employer might trick you to get less compensation than you deserve.When Is the Best Time to Contact an Employment attorney?Many claims pertaining to employment law have deadlines or time limits often known as ‘statutes of limitations’. That is why it is always recommended to file your case sooner rather than later. Even so, it is very important to choose an experienced and competent lawyer to represent you.

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Things to ConsiderThere are several things to be considered when choosing an employment advocate. These include time involved, cost, location, etc. A lawyer can be found through referral services provided through various professional law associations or through friends and family. Information is also available through search engines on the internet or through the Yellow Pages. You can check advertisements of employment lawyers in newspapers and magazines.So, you can see that there is a great deal of benefits of hiring an experienced employment attorney. If you feel you have a few claims to make against your employer or employee, then the best thing to do is to contact an employment lawyer in your area to discuss the issues.

Five Things an Employer Needs to Know About Employment Law

It is an unavoidable demand of running any business that an employer must have a good knowledge of employment law whether they are self employed and/or employ other staff. They should have an awareness of the rights of the employee, the employer themselves and where each party stands in the unfortunate event that the normal working relationship breaks down. This article addresses the five key areas that employers and HR departments need to consider when dealing with employment law in the UK.1. How You Define Employees and EmployersIt is important, before delving into the intricacies of employment law to have a clear idea of the parties that are involved and how their roles should be defined.Employed vs Self Employed: This distinction can be less apparent than you may think. If a worker has agreed to provide a service/work under contract for an organisation then they will be a worker employed by that organisation unless the organisation is actually employing the services of that individual’s business, in which case the worker is self-employed and thus not a direct employee of the organisation. An example of such a scenario would be a contractor who offers his services to an employer via his own business rather than agree a direct contract of employment himself.
Part Time vs Full time: This is a heavily contextualised concept as the hours a full time employee works in one organisation could be the same as the hours worked by a part time employee in another. Once an organisation has set the hours that a full time employee is expected to work, a part time employee is defined as a worker employed on the same contractual basis but for reduced hours. The key thing to remember here is that part time employees should not be treated any less favourably in comparison to their full time counterparts purely because of the difference in hours that they work, unless their hours are a justifiable factor in the decision process. For example, pay should always be awarded on a pro-rata basis for part time workers in comparison to an equivalent full time role. Employees have the right to challenge and demand written explanations if they think that they are being treated differently on this basis alone.
Temporary vs Permanent: This distinction depends upon the contract of employment which we will discuss later on. The temporary or fixed term worker will have a contract which agrees their employment for a fixed period of time as opposed to an ongoing permanent relationship. As with part time workers, temporary workers must not be treated any differently to their permanent counterparts purely on the basis that they are on fixed term contracts.

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2. Statutory RightsThese are the rules that govern and provide the framework for how you will need to deal with your staff from the start of the recruitment process to the cessation of the contract of employment. They cover not only the definitions of employment types mentioned above but every other area of individuals’ rights in the work place. They are too broad and detailed to discuss in their entirety here but, in summary, include:PayMinimum Pay – Rates for over 16s, varying for different age groups
Equal Pay – Contracts for women employees must include the same pay and benefits as that of a man in an equivalent role
Pay Slips – To be itemised and provided before or on the date of pay
Discrimination – Employees must not be discriminated against based upon “protected characteristics” such as age and sex. Provisions must be in place for disabled workers
Equality Act 2010 – Employers do have the right to choose between two candidates of equal ability on such a characteristic if it is under-represented amongst their staffWorking HoursMaximum Working Week – 48 hours, regular breaks etc. Opt outs can be agreed but not demanded
Flexible Working – Parents of children up to 18 years old have a right to apply to changes to their hours and work location which an employer can only refuse if specific circumstances are met
Parental Leave
Maternity Leave – 26 weeks ordinary and 26 weeks additional entitlement
Paternity Leave – 2 weeks entitlement with additional 26 weeks when mothers return to workAbsenceSickness – Statutory sick pay entitlement etc
Compassionate Leave – Employees have a right to time off (but not pay) if they have illness or death in the immediate familyWhistleblowing – Protection for some disclosures in specific circumstances which would otherwise breach the employee’s contract.Workplace Health & Safety (see below)Redundancy – When an employee’s role is no longer required.Statutory Pay
Notice Period
Relocation OpportunitiesTUPE – Conditions of employment must be transferred in the event of a take over.Pensions – Most employers must offer employees a stakeholder pension provision.Dismissal & DisciplinaryUnfair Dismissal – The employer must have a fair reason (e.g., employee conduct) to dismiss an employee with 1 years employment and must follow a fair dismissal procedure. Some reasons for dismissal will qualify to be considered as automatic unfair dismissals such as union action, time off for parenting etc
Wrongful Dismissal – Notice must be given by all parties (unless a fixed term contract is lapsing) as set out in common law
Constructive Dismissal – If an employer breaks the terms of a contract and consequently forces an employee’s dismissalRetirement – The Default Retirement Age is ultimately due to be scrapped by Oct 2011 although there are certain measures already in place to reach this end (Retirement is therefore no longer a fair reason for dismissal).One of the most essential things to remember with statutory rights is that they are regularly changing. As an employer or HR worker you must remain familiar with the latest developments.3. The ContractPerhaps the most important element of any employer-employee relationship is the contract of employment. All parties will have certain statutory rights as mentioned above but the finer details and practicalities of the relationship will be contained in the employment contract. The contract will determine the procedures to follow in the event of staff under-performance or disciplinary proceedings, any employee benefits and concessions above and beyond their statutory entitlements (e.g., maternity leave, compassionate leave) and ultimately the conditions and processes of releasing staff either through dismissal, redundancy or resignation.4. Trade UnionsIf you are an employer of more than 21 individuals you may be approached by a trade union seeking recognition from your organisation. The Trade Union needs to show that it has a 10% representation in your workforce and that those members wish your organisation to acknowledge it. You will have 10 days to respond to the request otherwise you will have effectively rejected the approach. In the event of rejection the Trade Union can apply to Central Arbitration Committee to force you to accept their approach for recognition. Once a Trade Union has been recognised, an employee is entitled to take part in industrial action organised by the union (for a period of up to eight weeks) if the industrial action was called for by an official Trade Union ballot. Any dismissals resulting from this action would automatically qualify for unfair dismissal.

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5. Health And SafetyAn employer is obliged by common law to provide a safe working environment and to ensure that their workers are fully competent in the roles they are filling. However employers are also bound by statutory requirements which reinforce these obligations and the fact that all employees must, at all times, be fully capable, be trained in the safety procedures that they must follow and be aware of the Health & Safety Act 1974.To this end employers are also required to perform regular assessments of the risk in the workplace, not only to their own employees but any other individuals who may be affected. Employers of at least five members of staff must document these assessments and are in addition required to produce a documented health and safety policy which is communicated to all members of staff.There are many more requirements that an employer must be aware of to fulfill these objectives and specific additional regulations which apply to particular industries and workplaces.As you can see employment law is a very broad and nuanced topic and it takes a fair amount of effort and time to become familiar with it. Therefore, if you are in doubt, or you need guidance on a specific circumstance you should seek advice from a qualified employment law specialist, such as Employment Solicitors Basingstoke to make sure you take the easiest and most economical path to a resolution.