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Employment Law Blog

Monday, August 21, 2006

Employee complaint or employee whining?

Check out this question that was posted in an “<a >Ask
Amy”</a> 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.

 

Posted by Patrick Della Valle on 08/21 at 07:00 AM
Religious Discrimination
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

[url=“http://www.elinfonet.com/headcount.php?ID=7713”>New administrative exemption - what’s in and what’s out</A>
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

<a >Washington High Court Redefines “Disability” in Accord with Federal ADA.</A>
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

<a TARGET=“_blank”]Discrimination at work growing subtle[/url]
Star News Online - August 14, 2006

 

Posted by Patrick Della Valle on 08/18 at 09:51 AM
Week in Review
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.

Posted by Patrick Della Valle on 08/16 at 04:16 PM
Human Resources
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

[url=“http://www.elinfonet.com/headcount.php?ID=7659”>U.S. Supreme Court Expands Anti-Retaliation Provision of Title VII (pdf).</A>
Employers have long understood that title VII prohibits retaliation against an employee.
Located On: Nexsen Pruet

Most Popular State Law Article

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

Most Popular Headlines

<a TARGET=“_blank”]Toyota’s sex-harassment lawsuit could set standard[/url]
USA Today - August 08, 2006

 

Posted by Patrick Della Valle on 08/11 at 09:39 AM
Week in Review
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.

<u>The Bottom Line</u>

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!

Posted by Patrick Della Valle on 08/08 at 03:17 PM
Employment Law
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

[url=“http://www.elinfonet.com/headcount.php?ID=7595”>Top Five Employer Mistakes Under the FLSA.</A>
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

<a >Company’s Out-of-State Employees May Have Violated California Privacy Law With Surreptitious Taping (pdf).</A>
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

<a TARGET=“_blank”]An Owner’s Guide To Dicey Workplace Complaints[/url]
Forbes - August 01, 2006

Posted by Patrick Della Valle on 08/04 at 07:46 AM
Week in Review
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?

Posted by Patrick Della Valle on 03/24 at 11:41 AM
Sexual Harassment
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”.

Posted by Patrick Della Valle on 03/09 at 12:55 PM
Human Resources
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?

Posted by Patrick Della Valle on 12/14 at 11:51 AM
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?

Posted by Patrick Della Valle on 11/15 at 12:16 PM
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.

Posted by Patrick Della Valle on 11/07 at 01:05 PM
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.

Posted by Patrick Della Valle on 10/27 at 11:20 AM
Tuesday, October 25, 2005

Stupid is as stupid does

I’ve edited a ton of employee handbooks over the years.  Making employment policies too specific is one of the most common mistakes employers make when drafting their handbook (particularly in discipline policies).  The incentive is to have the handbook address every possible workplace dispute in order to eliminate the discomfort in making a decision on whether an employee should be punished.  Basically, “the handbook told me to do it”.

I always tried to remind clients that situations will arise that no amount of specificity will address.  Take the case of Savvis Inc.‘s CEO, who allegedly racked up $241,000 in credit card charges at a Manhattan topless club.  You can find stories, here, here, here and here.

Apparently, he’s been put on unpaid leave, but I cannot imagine that the infraction was detailed in the Savvis’ manual.

On a lighter note, the company has hired a firm to act as independent counsel for its Audit Committee, which is investigating the incident.  Why couldn’ I get this kind of assignment when I was a junior associate?

Posted by Patrick Della Valle on 10/25 at 02:19 PM
Friday, October 21, 2005

Is your Employer “Big Brother”?

An employer’s ban on fraternization among its employees, on-duty or off-duty, has recently made news reports.  Guardsmark, LLC, a company that provides uniformed security personnel to commercial entities, has a policy that states that its employees must NOT “fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.”  The National Labor Relations Board considered whether this policy (and others) violates the National Labor Relations Act, and concluded that it does not.

Some writers seem appalled that an employer would seek to regulate employees’ off-duty conduct to the point of banning fraternization.  One asks, “What if your boss could ban happiness”?  But is this not a natural, defensive response to the burdens we continue to place on employers.

Our society and our legal system have increasingly held employers liable for off-duty conduct of their employees.  ?Quid pro quo? and hostile work environment sexual harassment claims often arise in after-hours contexts.  Employees seem to expect their employers to provide more and more ?protection,” even in situations that arise from domestic conflicts.  Employee dating also gives rise to claims of sex discrimination, including claims by ?other? employees who perceive favoritism resulting from the dating relationship as well as claims from those involved in dating after the dating relationship goes sour.

Can you blame an employer for trying to protect itself from becoming entangled in domestic situations, and having to be both ?parent? and ?police? in conflicts that arise from romantic entanglements?  Some say Guardsmark?s policy goes too far, even banning an after-work softball game or happy hour among coworkers.  Let us not be na?. . . .  How many romantic relationships have begun at after-work happy hours, and where should an employer draw the line?the first flirt?  the first kiss? first base? something else?

Do not get me wrong here.  I do not like employer-imposed rules on personal relationships any more than the next person.  My guess is the employers do not like the rules either and do not want to be involved in their employees’ personal lives.  But if we are going to hold companies responsible for ?hurts? that arise from off-duty personal contact, we should not be surprised when those employers exercise what control they can over that contact.

Posted by Patrick Della Valle on 10/21 at 06:38 PM
Monday, October 10, 2005

What is Wrong with America’s Corporations?

Two signs caught my attention this past weekend.  A roadside marquee of a manufacturing corporation near my home says, “If your beliefs do not affect what you do, what good are they”?  The second “sign” that caught my attention is the title of an article, written by Candy Deemer and published in AMA Seminars (October 2005 - June 2006), “Bring the Heart Back into Corporate America.”

Have American corporations lost their heart, and if so, who is to blame?

Ms. Deemer?s article discusses the need for corporations to (among other things), put values before value (i.e. adhere to core values, even if that results in less profit); and the need for corporations to always be trustworthy.  However, I reflect back on the truth that a corporation is a legal entity?a corporation cannot do anything by itself.  Corporations take action (or fail to do so) only through the actions or inactions of its decision-makers.  Those decision-makes are not only the officers and upper management, but also include employees on the front line of the corporation—line employees, customers service representatives and sales persons, for example.

If America?s corporations have lost their hearts, it can only be because either (1) the individuals who make up that corporation have lost their hearts or (2) the individual employees (from the CEO all the way through to the entry-level position) are not acting in their jobs with the courage of their beliefs and convictions.  How many CEOs are willing to mistreat, burn-out or discard employees to make more profit?  How many middle managers fail to take a stand for fair treatment of their subordinates, perhaps because it could jeopardize their promotion?  How many Human Resources professionals ?look the other way? rather than speak out for what they know to be the right thing to do?  How many entry-level employees sacrifice their own beliefs and take action that violates their own core values simply to keep their jobs?

The only way to change the hearts of corporations is to change the hearts of people.  Are my core values more important to me than money?  Am I always trustworthy?  A call for corporations to ?have a heart,? must necessarily begin with taking a hard look at ourselves. 

Posted by Patrick Della Valle on 10/10 at 11:59 AM
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