Friday, September 08, 2006

Week In Review (September 8, 2006)

Ford & Harrison and Fisher & Phillips capture this week’s honors!

Most Popular Federal Law Article

Things Don’t Always Go Better With Coke! (pdf).
On August 31, 2006, the Second Circuit Court of Appeals in New York stunned the home care industry once again, by affirming its 2004 decision in Coke v. Long Island Care at Home. The court’s earlier decision had been vacated by the Supreme Court and remanded for further review in light of a Department of Labor ("DOL") Memorandum on the companionship exemption’s coverage of agency-employed home care workers under the Fair Labor Standards Act ("FLSA").
Located On: Ford & Harrison LLP

Most Popular State Law Article

“That’s Not Harassment—We Just Have A ‘Sexually Charged’ Atmosphere”.
The California Supreme Court recently unanimously held that sexual antics and sexual language by the writers for the television show “Friends” was not severe or pervasive enough to create a hostile work environment in violation of California State law.
Located On: Fisher & Phillips, LLP

Most Popular Headlines

Help staff be winners, not whiners
Maine Today - September 01, 2006

Friday, September 01, 2006

Week In Review (September 1, 2006)

Congrats to Nixon Peabody for this weeks most popular Federal and State article!

Most Popular Federal Law Article

Denying Light-Duty Assignments to Pregnant Employees (pdf).
Swift Transportation Co., a Phoenix-based trucking company, provided light-duty assignments only to employees out on workers’ compensation leaves; i.e., those who had sustained on-the-job injuries. Employees with offduty injuries or disabling conditions, including pregnant employees, were denied light-duty jobs. Amanda Reeves, a pregnant over-the road truck driver, sued Swift under the Pregnancy Discrimination Act when Swift refused her request to be assigned to an available light-duty position. Swift then fired her two weeks after she announced she was pregnant and after she refused to return to her regular driving job.
Located On: Nixon Peabody LLP.

Most Popular State Law Article

New Proof-of-Age Requirement for New York Employers When a Worker Claims to Be between 18 and 25 years old (pdf).
A little-noticed amendment to New York’s Labor Law imposes a new record-keeping requirement on New York employers. We are all familiar with the requirement that, for most types of employment, minors under age 18 must provide employers with employment certificates, commonly known as “working papers,” to lawfully hold jobs. Employers must keep the employment certificate on file during the minor’s employment and produce it to the New York Department of Labor (DOL) on demand. Employers are subject to penalties and fines if they hire a minor without obtaining an employment certificate.
Located On: Nixon Peabody LLP.

Most Popular Headlines

6 rules for prospering in the workplace
Delaware Online - August 27, 2006

Friday, August 25, 2006

Week In Review (August 25, 2006)

Congrats to Jones Walker and Sedgwick for this week’s honors:

Most Popular Federal Law Article

Cross Your T’s and Dot Your I-9 Compliance (pdf).
The “I-9” is what people use to describe the Employment Eligibility Verification Forms I-9 and is one of the tools used by the government to try to ensure that employers are hiring only those individuals eligible to work in the United States.
Located On: Jones Walker

Most Popular State Law Article

Huge Job Creation, Destruction Require Adaptation by Employment Lawyers.
The structure of employment in California shifts rapidly. The traditional employer-employee relation continues to be impacted by the dramatic job creation and destruction and job turnover that is occurring in our state’s economy. This relation also is being altered by the expansion of contingent staffing arrangements and temporary staffing agencies, by the rise of professional employer organizations and by the impacts of globalization and offshoring.
Located On: Sedgwick, Detert, Moran & Arnold LLP

Most Popular Headlines

Court ruling puts ‘screamers’ on notice
Las Vegas Business Press - August 18, 2006

Monday, August 21, 2006

Employee complaint or employee whining?

Check out this question that was posted in an ”Ask
Amy” column that appeared in a variety of newspapers.

Basically, a professor at a public university - and atheist - asks whether the university must maintain a completely sterile environment with respect to religious views.  Setting aside any First Amendment issues, or those related to Title VII, common sense dictates that an employer (without a religious affiliation) establish rules that prohibit an employee from being harassed based on religious views.  Ignoring the discrimination issues, it just makes sense from a productivity standpoint.

What gets me about the questioner is the actual nature of her complaints:

Soon after I was hired, I received a desk decor gift from the department dean that included quotes from the Bible on small Post-its. I also constantly receive religious e-mails that are from the department secretary and my department chair.

Of all the horrible things that can happen to you at work, this seems to be about as minor an annoyance as you’re going to face during your work career.  I’m all for political correctness, but it has to come at a price.  In this case, that price is getting out of your chair and talking to the people who have done something that offends you.

Interestingly, the person ends her question by saying “I am not going to complain. I am afraid that it would affect my relationships at work.” Doesn’t that all depend on how you raise the issue?  Why does it have to be a complaint and not a conversation?

I know that Human Resource Directors face these types of questions all of the time.  If I were in that position, I would tell the employee to discuss the matter privately with the people involved (this is also the advice that Amy gives).  Of course, I’m not a Human Resource Director!  For those HR Directors out there, how would you handle this complaint?  You can post a comment by clicking on the link below.

Friday, August 18, 2006

Week In Review - August 18

Congratulations to Jones Walker and Jackson Lewis for this week’s most popular articles!

Most Popular Federal Law Article

New administrative exemption - what’s in and what’s out
Nearly two years have passed since the DOL revised the regulations interpreting the “white-collar” exemptions from the overtime provisions of the Fair Labor Standards Act (FLSA). The regulations primarily focused on administrative, executive, and professional employees. Based on the revised regulations, many companies tweaked their exempt classifications.
Located On: Jones Walker

Most Popular State Law Article

Washington High Court Redefines “Disability” in Accord with Federal ADA.
The Washington Supreme Court has dramatically changed the landscape for employers faced with disability discrimination claims under state law. On July 6, 2006, the court issued its opinion in McClarty v. Totem Electric International and re-defined what constitutes a “disability” under the Washington Law Against Discrimination.
Located On: Jackson Lewis LLP

Most Popular Headlines

Discrimination at work growing subtle
Star News Online - August 14, 2006

Wednesday, August 16, 2006

How should you handle missing office supplies?

I was talking to a friend recently about the issue of petty theft in the workplace.  It’s a growing problem, with 20% of employees admitting to taking office supplies in the past year.  The big question is what to do with an employee who you believe is stealing.

The natural response seems to be to pretend you’re Sherlock Holmes.  That is to say, employers often take it upon themselves to engage in elaborate surveillance techniques when they believe that one of their employees is stealing office supplies.  I’m sure that this is a natural response because it is difficult to take a more direct approach — actually question the employee that you suspect is stealing.

The instinct for surveillance probably also arises from the notion that a person is innocent until proven guilty.  The problem with this approach is that you’re an employer and not the government.  To me, your primary interest is to stop the theft, not ensure that you’ve falsely accused the wrong person (remember that, as a private employer, you cannot violate an employee’s constitutional rights).

Of course, you should collect as much evidence as reasonably possible before you accuse an employee of committing a crime, even a minor crime; but hiring detectives and installing surveillance cameras is surely unnecessary.  It’s a simple question of the return on your investment.  Again, it’s more important to stop the thieving then catch these thieves.

A note of caution if you decide to confront an employee.  Your tone must match the actual evidence you have.  If you have strong evidence, then you can take a strong tone.  If you only have idle suspicion, you need to approach the employee in a more delicate manner.

I would think that the stealing will stop when you raise the issue with the likely suspects.

Friday, August 11, 2006

Week In Review - August 11

Congratulations to Nexsen Pruet and Sedgwick for this week’s most popular articles!

Most Popular Federal Law Article

U.S. Supreme Court Expands Anti-Retaliation Provision of Title VII (pdf).
Employers have long understood that title VII prohibits retaliation against an employee.
Located On: Nexsen Pruet

Most Popular State Law Article

California Supreme Court Resolves Prop. 64 Quandaries.
Companion decisions begin to answer some of the many questions raised by Proposition 64.
Located On: Sedgwick, Detert, Moran & Arnold LLP

Most Popular Headlines

Toyota’s sex-harassment lawsuit could set standard
USA Today - August 08, 2006

Tuesday, August 08, 2006

Should you have employees sign employment contracts?

Parties enter into written agreements in order to manage expectations.  A written agreement should clearly specify the parties’ rights, duties, and obligations.  The agreement is an insurance policy against a party’s failure to act in accordance with the agreement terms.  That said, deciding on whether to enter into employment agreement with an employee is not like deciding to enter into any other type of agreement.  That’s because common-law already provides the foundation (i.e., the rights, duties and obligations) for the relationship between an employer and employee.  That foundation is the employment at-will doctrine.

In most states an employer is free to terminate an employee for any reason or no reason at all.  So long as the employer doesn’t violate a statutory prohibition (e.g., discrimination based on race, sex, age, religion or disability) it’s entirely free to discharge an employee for good cause, bad cause or no cause at all.  Some states do place additional statutory limits on an employer’s right to discharge an employee (e.g., termination in violation of some broad public policy), while other states recognize the possibility that an employer can limit its own rights to discharge (e.g., by providing a step-by-step discharge policy in their employee manual).  In relative comparison to the broad right to discharge, however, these limitations are exceedingly narrow.

Some employees (and most unions) consider an employer’s power to discharge as being too great.  Of course, no one ever questions an employee’s absolute right to terminate his or her employment at any time and for any reason.  In part, this is the basis of the bargain between an employer and employee.

So what does this have to do with deciding whether or not to enter into an employment agreement?  Everything!  It makes no sense whatsoever for an employer to enter into an employment agreement with 99% of employees.  That’s because an employer has no need to manage expectations—he has the right to demand an employee’s adherence.  It may sound like common sense, but it’s not.  It’s just a well understood workplace rule.  Entering into an employment agreement with most employees is an unnecessary exercise that provides an employer with no greater protection than it would otherwise already have.

That’s not to say that employment agreements never make sense.  There is that 1% of employees who present a problem.  They are almost always high-level executives, sales employees, or employees with other technical expertise.  These employees possess confidential information and know-how, so you enter into an employment agreement with these employees in order to protect yourself against future competitive disadvantage.  Stated simply, you don’t want your competitors to get their hands on these employees or the information they possess.  The agreement adds a layer of protection that you otherwise would not have: a restriction on the employee’s ability to harm you or to aid your competitors.

While the agreement may contain clauses that provide obligations on the employer, the main focus of the agreement is to restrict an employee’s ability in a few key areas:

Competition. A noncompete clause restricts an employee’s right to accept employment with a competitor or start his own competitive venture. 

Solicitation. A nonsolicitation clause is also designed to prevent a former employee from competing against you, but by limiting his ability to solicit your clients, customers or suppliers.

Disclosure of Information. A nondisclosure clause restricts an employee’s right to divulge nonpublic or proprietary information. To be enforceable, the agreement should define what constitutes confidential information.

Hiring Current Employees. An anti-raiding provision restricts an employee’s right to solicit current employees from leaving their employment.

Disparagement. An anti-disparagement provision prohibits an employee from making statements that are contrary the company’s best interests or the best interests of your current executives.

In both the noncompete and nonsolicitation situations, the court will look at the reasonableness of the restrictions in deciding on whether to enforce the provisions.  Reasonableness almost always is determined by reviewing the time limit and geographic scope imposed by the covenants.  Clauses that are determined to be overly broad may be struck or reformed by a court.  Of course, a court will look at the nature of the company’s operations and industry in deciding whether any particular restriction is overbroad.

Please bear in mind that I haven’t attempted to outline every single topic that should be covered in an employment agreement.  If you are interested in reviewing a list of some of the most common employment contract provisions, just click on the link in this sentence.  The question discussed here is whether you should enter into an agreement with an employee and not what the agreement should include.

The Bottom Line

Companies rarely need to enter into written employment agreements with the overwhelming majority of their employees.  There are the situations, however, when a written employment agreement is not only recommended but necessary.  As always, the decision on whether to enter into a written employment agreement should be made in consultation with your employment counsel.  Drafting this type of agreement is not something that should be done in a cavalier manner, but takes thoughtful consideration and the help of an expert in the field.

Please let me know if I’ve missed anything that I should’ve included.  You can enter comments by clicking on the comment link below.  Thank you!

Friday, August 04, 2006

Week In Review (August 4, 2006)

Congratulations to Fisher & Phillips and Proskauer for the most popular articles this week.

Most Popular Federal Law Article

Top Five Employer Mistakes Under the FLSA.
Ever since the Fair Labor Standards Act’s revised regulations became effective August 23, 2004, overtime has become a hot-button topic for employers and employees alike. Worse, it has also become a prime target area for plaintiffs’ attorneys, since—even with the revisions—the FLSA is an extraordinarily difficult statute to comprehend and comply with.
Located On: Fisher & Phillips, LLP

Most Popular State Law Article

Company’s Out-of-State Employees May Have Violated California Privacy Law With Surreptitious Taping (pdf).
In this proceeding, several California clients of SSB filed a putative class action seeking damages and injunctive relief against SSB’s Atlanta-based branch’s practice of recording telephone conversations with California residents without their knowledge or consent.
Located On: Proskauer Rose LLP

Most Popular Headline

An Owner’s Guide To Dicey Workplace Complaints
Forbes - August 01, 2006

Friday, March 24, 2006

How far is too far?

There is an interesting article in USA Today (with a related blog post) about business executives—particularly on Wall Street—going to strip clubs.  It seems that the NYSE and NASD are considering rules to curtail these trips as a result of recent bad press relating to sexual harassment in the financial services industry.

You would think that a number of multi-million dollar verdicts would be enough to generate independent action on behalf of these firms.

I wonder how Keith Hammonds would handle this situation?

Thursday, March 09, 2006

Why We Hate HR (Part II)

Check out Landed.fm for an interview with Keith Hammonds, Executive Editor of Fast Company, who wrote the August 2005 cover story "Why We Hate HR". That article generated a tremendous amount of buzz in the HR world, enough to even surprise Hammonds.

He certainly makes some valid points in his interview—particularly that HR should play a strategic role in any company—but I’m not sure he’s ever had to sit though discovery in a discrimination case. It’s nice to suggest that HR should “make less rules and more exceptions”, but can you imagine the kind of record keeping system you would need to handle that approach? I’m not talking about statistics on people hired or trained, but documenting the decision-making process for each broken rule or exception.

I guess it’s not impossible to do, but it’s certainly not a matter of just “thinking outside the box”.

Wednesday, December 14, 2005

Talk about a bad day at work…

Some may not want to read this story (describing disturbing sexual behavior at work), but I think it highlights an important lesson - there’s a real downside to allowing supervisor-subordinate relationships.  I’m sure that there are thousands of workplace romances that have worked out for the best, but I’m likewise sure that there’s no effective way to prevent this kind of he-said, she-said claim.  Does your company permit supervisors dating subordinates?  Is it outlined in your handbook?

Tuesday, November 15, 2005

Fair and Balanced?

The raw story has posted a copy of the EEOC’s federal court complaint against Fox News Network here.  Certainly looks real, but recognize that it’s not located on the SDNY’s website.  The complaint contains some crude particulars regarding the nature of the harassment, so be forewarned.  Makes you wonder if a workplace download of a sexual harassment complaint might subject you to a complaint of sexual harassment?

Monday, November 07, 2005

Totally Lame Dude

Gannett News Service is running a column by Andrea Kay about the use of youthful “slang” in the workplace.  It probably goes without saying that inappropriate use of informal language can damage your reputation at work, but it would have been nice for Andrea to point to at least one example that makes her case.  I also find ironic her claim that young workers should stop focusing on themselves when her entire point seems ego-driven.

So what does this have to do with HR/employment law?  Focus your energy on promoting effective communication in the workplace and not some Andy Rooney-like ethnocentric language code.  Form is important, but only when you actually know it makes a difference.

Thursday, October 27, 2005

Pick up the &!#@$ Phone!

The AP is running a story on a Michigan woman who was discharged for missing work after seeing her husband off to war.  If I had a nickel for every termination that resulted from a lack of communication, I’d be richer than Bill Gates.

According to the story:

Boler recalled being asked, not ordered, to start back at her job Oct. 17, the day after her husband left. She told her bosses that she would try to return that day but if she could not, she would definitely be back Oct. 18, she said.

Although Boler was back home on the Sunday, October 16th (the day before she was ?asked? to report back to work), she decided not to go to work the next day.  Apparently, when she didn?t show up for work on the 17th, the employer called her—in the afternoon—to tell her she was fired.

Now why didn?t either party make a call on the morning of the 17th?  I would think that Boler owed her employer that much, but doesn?t the company also bear some blame?  According to the story, ?other factors were involved in the decision?, although the company spokesperson didn?t elaborate.  Now, I?m sure everything will come out in the wash (i.e., unemployment hearing), but it seems to be a case in which the employer took a short cut.  Missing work is an easy excuse to fire an employee, even if the truth is more damaging.