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2011-08-25T16:36:00.000-07:00

Fired Human Resources Director Settles Case

Angela Payne was the Human Resources Director for the City of Sheboygan. She contended that she was fired for rejecting the Mayor’s drunken sexual advances. Payne alleged that the Mayor tried to kiss her, looked her body up and down and implied he wanted a sexual relationship. Following this Payne noticed that the Mayor became distant, refused to call her by name, refused to speak to her directly and rolled his eyes when Payne spoke. To read more about this case click here.

Payne settle this case for $310,000. The City got lucky on this one. They could have been hit for a lot more in front of a jury. Many people think that, by virtue of being in Human Resources, individuals do not suffer harassment, discrimination or retaliation. Having represented a number of individuals who worked in Human Resources I can tell you they are just as vulnerable as the rest of the workforce. Sheboygan is not alone when it comes to these problems.

Later,

Rod

2011-08-22T15:03:00.000-07:00

Love Contracts? Romance? Bah Humbug!

I just got through reading an article by a mainstream publication in which it was suggested that through the use of a love contract an employer could either minimize or deflect liability for sexual harassment and retaliation.

If you are unfamiliar with the concept of a love contract, that just means you’re not a lawyer. A Love Contract is a document in which employees acknowledge that a consensual romantic relationship has occurred or is occurring between coworkers, typically between an employee and a member of management/supervision/ownership. Presumably, by signing this agreement employees will be dissuaded from filing a lawsuit and employers will have a defense that may allow them to obtain an early dismissal of any lawsuit.

Let me be clear. I don’t want to deprive anyone of the opportunity to be loved, feel loved, doodle about their loved one or walk around day dreaming with a goofy look on their face. When I wrote an article on romance in the workplace in April of 2009, I received emails from a number of people that met their soul mate in the workplace. That’s awesome. Unfortunately, those folks are the exception rather than the rule. The problem is that not everybody can handle a breakup after being hit by one of Cupid’s arrows. When that happens, the workplace becomes a danger zone and there is no contract the can adequately address the impact on your team as they deal with the fall out of a broken relationship. That is just reality.

Let’s be frank, any time a member of management or ownership has a relationship with a subordinate- the scope of your exposure, as an employer, increases exponentially. A love contract may dissuade some from bringing a lawsuit; which is, perhaps, the strongest argument in its favor. A romantic relationship between management and a line employee, in particular, is fraught with risk and will negatively impact the workplace. The relationships create the impression of favoritism, thus undercutting management’s credibility. You know the comments, “Gee, if I slept with the boss maybe I would get…” and “Do they think we are stupid? Everyone knows what is going on between them.” Second, it makes some people think that using the workplace, as a source of future bed partners/conquests is an acceptable practice. Third, love contract or not, the aggrieved party will likely claim that the relationship was the result of a threat of adverse employment action and that same pressure was exerted to cause the employee to sign the love contract. We are in different economic times. The argument that you should have left and taken another job will not resonate as well as it would in a good economy. Even if you win this argument, it will not be pretty and it will cost you a lot of money.

Bottom Line:

In today’s work environment, a supervisor, manager, or owner that has a sexual relationship with a subordinate does not get any sympathy here. Love contract or not, you are leaving yourself exposed. Pursue romance outside the workplace or get ready to pay your lawyer.

Later,

Rod

2011-03-13T17:01:00.000-07:00

THINK BEFORE YOU SIGN THAT NON-COMPETE

In an increasingly competitive business environment the use of non--competition agreements has become commonplace. Employers and employees tend to resort to cookie-cutter agreements which are not narrowly tailored to fit the particular employment relationship at issue. As a consequence, employment lawyers hear employers complaining that the non-competition agreement did not afford them as much protection as they would have liked. On the other hand, employees sign the same non-competition agreements without giving any thought to their scope and duration thereby, in many cases, effectively negating their ability to perform their chosen line of work.

The tried-and-true rule of thumb for non-competition agreements has been that they must be of reasonable duration and narrowly tailored geographically. The shorthand term is reasonable duration and scope. Essentially, since courts do not favor these agreements, given their propensity to stop people from gainful employment, businesses cannot overreach and impose terms that are greater than needed to protect their legitimate business interests. Under the tried and true rule of thumb, a small company operating in Aberdeen Washington, with the clientele within 100 mile radius was not permitted to expand the scope of the non-competition agreement nationwide for the next hundred years.

As with everything, the tried-and-true rule of thumb has gone by the wayside due to technology. A prime example of this is the recent decision of the Mississippi Court of Appeals in Timber Lake Foods, Inc. vs. Stephanie Estess. In that case, the employer sought enforcement of a noncompetition agreement that was two years in duration and prohibited any employment within the 250 mile geographical radius. In analyzing whether the scope of the noncompetition agreement was reasonable, the court examined whether the imposition of a 250 mile geographical restriction was arbitrary. In so doing, it concluded that based on the nature of the work performed by the employee, specifically that the employee could perform her job through the use of a computer and telephone from anywhere in the country, that the restriction was not excessive. In so holding, the court cited to several decisions from other jurisdictions in which courts have held that technological advances have significantly impacted the courts' view of the concept of geographical reasonableness.

TAKEAWAYS:

Don’t Get Lost in Love.

Don't enter into long-term commitments without first obtaining the advice of independent legal counsel. Employers and employees are both guilty of not considering the possible worst-case scenarios that can occur when an employment relationship falls apart. Understandably, in any employment relationship there is what can be referred to as the honeymoon phase. As with any relationship, things always look wonderful when you are in love and everyone is optimistic, happy, and just plain content. It is after the honeymoon phase ends that the employer and employee begin to view things in a different light. Unfortunately, by that time all the important documents have been signed and neither party is willing to compromise. Employees suddenly realize that they never considered what would happen in the event of a lay-off, termination, merger, or the availability of a better paying position. Employers, who view noncompetition agreements as mere "boilerplate", find that due to technological advances they have not fully considered the geographical scope of their agreements thus allowing an employee to effectively compete in your market while working outside of the geographical restriction. In each circumstance you have unhappy campers who are forced to go to court to protect their interests.

Time in Breach Should Not Count.

Lawyers drafting noncompetition agreements should also be mindful that litigation involving these agreements can be time-consuming and costly. As a result, it is always important to toll the duration of the noncompetition agreement for all periods of time that the employee is in breach of the same. In the Timber Lake Foods case, the court was unable to issue an injunction enforcing the noncompetition agreement because by the time the matter reached the appellate court level the two-year time duration had expired. That is effectively, winning the battle but losing the war. Employers drafting these types of agreements should also make sure that, given the costly nature of this litigation, that noncompetition agreements contained the shifting mechanisms.

Later,

Rod

2011-03-07T16:46:00.000-08:00

Where is the Common Sense

Employment law is a hot area especially in times of economic turmoil. More often than not, employment lawyers are called into action because of a fundamental institutional breakdown in communication. Employers do not want to communicate with their employees about workplace issues because they fear that whatever they say, “Can and will be used against them.” Employees don’t want to communicate with management because they feel that management only has its interests at heart.

I have been met with criticism because I have given advice to both employers and employees that defies generally accepted approaches and borders on, yes,… common sense. One of the reasons that I’ve been able to give this type of advice is because my firm represents employers and employees. I understand a workplace crisis from all perspectives and, unfortunately, I have witnessed both sides act in a less than mature fashion.

Management and human resources professionals, let me share some insight with you. In spite of all those wonderful moments at the last training session, your employees don’t trust you. They want to trust you but they don’t. The challenge you face is to change those deeply ingrained behaviors that scream, “My employer doesn’t care about me.” When a crisis erupts in the workplace, many employees believe that the fix is in. They honestly believe that management will only act in its best interest. Typically, that means getting rid of the employee that raised the issue. I know you are asking yourself, “What about the promises contained in the handbook?” Your employees don’t believe them for one minute. They view your handbook as another level of management protection. While handbooks are an excellent method to communicate expectations, what is needed is a management team that understands the value of human capital in concept and in practice. Only then can a common sense a dialogue begin.

Culture makes the difference.

I represent a number of companies that really care about their employees. These employers dare to be different. Their focus is different. They have committed to creating a culture of respect. They treat all complaints with the same degree of importance. Investigations are performed promptly. The results of investigations, and the underlying rationale, are explained to all parties concerned. These employers will work with the aggrieved employee to find solutions to workplace issues that are tailored to the situation. This requires a lot of face time, give and take, and the ability to trust one another. By taking the steps, employees begin to understand that they are important to their employer and not just another number. This also leads to an engaged workforce that drives high performance and positively translates to a bottom line impact. In so doing, you have created a culture of respect, inclusion and innovation. When this happens you will see a dramatic change in your workplace and a significant reduction in your legal bills because lawyers are no longer needed in the equation. That's a good thing.

Later,

Rod

P.S. For those of you that are interested and a truly different approach to building a culture of respect, inclusion and engagement that works, check out the website for Edge (www.edgelearning.com). Their transformational work has impacted individuals, leaders, teams and organizations of all shapes and sizes.

2010-04-29T16:40:00.000-07:00

Strippers and Sexual Harassment

Can sexual harassment occur in a strip club? You bet it can and it does. Many of the young women take jobs in strip clubs, as servers or strippers, naively thinking that it can provide them with an income to pay the bills or their college tuition. While their main concern is the customer, unfortunately, many of these young women find themselves sexually assaulted by coworkers, managers and owners. They don't come forward because they believe that there is no right of action or that no one will believe them. Compounding the problem is that many of them live a transient lifestyle or have had past criminal problems.

To be honest, I never gave the subject much thought. Why? Well, no one ever approached me to handle a case against a strip club. This weekend, I saw an article in the New York Daily News about a Manhattan employment lawyer who routinely sues strip clubs for sexually harassing their women employees. (Click here to read the article.) The clubs he sues are not the stereotypical grungy dive, these are the clubs that bill themselves as upscale "gentlemen's clubs". (Not that it matters, sex harassment is sex harassment whether it occurs in a dive or the corporate headquarters of a Fortune 500 company) Regardless of your feelings about strip clubs (personally I find them objectionable), the issue is whether these women deserve to be protected from sexual assault and harassment. That is one proposition on which we should all be in agreement.

These cretins that perpetrate this conduct do so because they know they can get away with it. After all who is going to believe a stripper? Lots of people. Especially if you have other coworkers come forward with corroborative information. It's clear that this is one industry that has no desire to adhere to the law and it is only through the pursuit of litigation against entities that meaningful change can occur in the workplace.

Later,

Rod

2010-04-18T19:59:00.000-07:00

Sometimes Good Things Come Out of Train Wrecks

When I grew up there was a different perception of employment relationship that we have seen in the past twenty years. It was an unwritten rule of work that if you, as an employee, gave your all to your employer, they do would do the right thing, even though they were not legally obligated to do so. That changed in the eighties, when corporate bean counters began to assume roles of importance in organizations. Profits became the focus at the expense of human capital. It did not take time for employees to recognize that their loyalty was not rewarded by management. As a result, today we see employees changing jobs as soon as a better opportunity presents itself. Their rationale, "My employer is only concerned with profit, so why should I stick it out with a company that will probably never reward my loyalty?" It is a sad but true statement.

Enter the current economic downturn (a/k/a train wreck). All the rules have gone out of the window. Employers that have been successful in weathering this crisis have come to realize that their ability to adapt to the new economic climate is largely dependent on attracting and retaining quality employees. Employees have also become less eager to jump ship. This is the classic case of employers and employees allowing crisis to become the catalyst for change.

The employers that are succeeding, in spite of the economy, understand that organizational competitiveness not only depends on employees mastering increasingly complex tasks, but that they must place greater value on their human capital. These organizations see that positive change occurs when they take steps to assist their employees become better people. To do so, they have to discard the old paradigm that focused on the bottom line and create a positive environment and an environment of trust. No matter how hard we work as employment lawyers, it is difficult, if not impossible to assist an employer create meaningful organizational change when there is a fundamental lack of trust between management and the people they manage or where employees act like whipped puppies.

I have been accused on being "old school" and maybe that's true, but I believe that most employees want to stay with a company long term and want to enjoy their job. They have all heard about grandpa that worked for a company for 45 years before he retired. They want the same thing. The challenge for you, as a leader, is to recognize this and begin to work with your employees to create an workplace that rewards creativity, longevity of service, and integrity. As I write this I am reminded of a recent conversation I had with a friend. He works for a large company that for the first time in their history experienced a financial loss. When the news of this spread through the company, there was understandable concern. The CEO decided to be proactive and arranged to meet with small groups of employees throughout the company until he met with his entire workforce. In these meetings, he listened to the employees while they shared their concerns, offered suggestions and answered their questions. According to my friend, following these meetings, this company is more focused than it ever has been, morale is up, and there is a greater degree of trust that management has their back. No amount of policies, procedures or training courses can replicate what this CEO did in the course of several weeks.

When was the last time you did an honest review of your company and asked the hard questions such as do people like working here and are we, as a company, achieving our potential? It is not about changing the organization as much as it is about people within your company changing and, in turn, becoming a source of organizational change. As I heard one individual put it, "Most organizations don't aim too high and miss, they aim too low and hit."

Maybe it's time for a change.

Later,

Rod

2010-01-28T09:52:00.000-08:00

Termination and at will employment

Most employees are considered to be "at will" employees. What that means in plain English is that the employee is free to leave at any time, for any reason, and with or without notice. Yes, the days of involuntary servitude are over. An employee is free to leave at any time, for any reason, without providing you the courtesy of notice. The notion of "at will" employment also envisions that you, as the employer, can terminate an employee at any time, for any reason, with or without notice, and without consideration for length of service. While the principle of " at will" employment seems rather straightforward, the execution is not. This is primarily the result of advice given by members of local taverns and diners, none of whom have a license to practice law. After all, why get a license to practice law when you can wax poetic about your uncle Cecil’s legal problems and how he is the bastion of all knowledge on issues of employment law? The difference between the well-meaning friends at the local diner or tavern and your lawyer is that the former will often get you sued. In case you haven’t been sued, let me share a secret. It’s more expensive to defend an employment lawsuit than to pay for an hour of your lawyer’s time to get the correct advice. Sorry, as I get older I tend to digress.

Keep it clean.

Employment at will was never meant to be confusing. It is supposed to be simple. With the exception of protections provided by statute, employers are supposed to be free to terminate employees at any time and for any reason. Conversely, employees should be feel free to leave at any time for any reason even if that means they don’t provide you with advanced notice.

Then why the problem? The answer is easy. Employers make promises they don’t have to make. For example, employers, in an effort to make employees feel part of the team, adopted a concept known as an introductory period or probationary period. During the probationary period, the employee was led to believe that they could be terminated for any reason including the slightest infraction. This led employees to conclude that once the probationary period expired they could only be terminated for cause. What employers failed to communicate is that they never intended the nature of the employment relationship to change after the expiration of the probationary period. To further confuse employees, employers began to adopt progressive discipline policies. The rubric under which these were adopted was to make employees feel that all employees were treated equally. Once again problems arose in the execution of these policies. First, progressive discipline policies can never anticipate every conceivable circumstance. Second, employees did not understand that progressive discipline policies were intended to be advisory in nature only.

When I say, "keep it clean" I mean that the message that you, as an employer, convey should be clear when addressing the issue of the nature of the employment relationship. That doesn’t mean that you should not have a progressive discipline policy. It does mean that your progressive discipline policy should clearly state that it is for purposes of guidance only and that management reserves the right to terminate employment at any time for, for any reason, and with or without compliance with the progressive discipline policy.

My mother had a saying when I was a smart mouthed teenager, "It’s the tone that makes the music." This was my mother’s way of saying that she didn’t appreciate the sarcastic tone of my voice. The same holds true in your communications with your employees. You, set the tone of your company, and, in turn, the expectations of your employees. It is, therefore, imperitive that you are consistent in all of your dealings with the employee. A prime example of this is the employment handbook. Most handbooks address the at will nature of employment in two areas. The first is the disclaimer and the second is the obligatory at will policy. Unfortunately the disclaimer and at will policy are in the front of the handbook and are long forgotten by the time the employee gets to the end of the handbook. None of the other policies remind the employee that any promise made does not change their status as an at will employee.

Takeaways.

If there’s nothing else that you take away from this Blog post, hopefully, the following three items will resonate with you:

1. Don’t make promises you don’t have to make.

Your employees are relatively sophisticated. They understand that you are running a business. You don't have to persuade them that you are one happy family that will stay together forever. If you try, they won’t believe you. So be honest. Don’t make promises in your handbook, or any literature you publish, that is inconsistent with reality. Your employees will appreciate it.

2. Get your advice from your employment lawyer, not the know-it-all at the local tavern or diner.

While "Cheers" may be the place where everyone knows your name, it is not the appropriate locale to get legal advice. Over the years I have heard a variety of advice given in local taverns and diners that had no correlation with the status of existing law. This is particularly true when it comes to the issue of terminating an employee. Termination is a serious event that merits implementation of the plan that will minimize future adverse consequences.

3. Be consistent.

All employees should be treated similarly. That means that your most irritating, obnoxious employee should receive the same treatment as the most popular employee. That more than anything else will avoid many workplace lawsuits.

Coming up:

I know I started this series in November with a promise not to keep you hanging, but I just couldn’t bring myself to write about termination during the holiday season. In my next post in this series we will discuss discipline and documentation.

Later,

Rod

2009-11-30T10:52:00.000-08:00

Termination

This is a topic that I don’t to like to write about, especially during the holidays. Call me the The Grinch (I’ve been called worse) but, as they say, “We need to talk.”

This is not a good time for employers or employees. The rules have changed. Employers in industries, once considered solid, are fighting to meet overhead. Employees are working harder, terrified they may lose their job because jobs that pay a decent wage are few and far between. The reality is that many people will lose their jobs before the end of the year.

Contrary to popular belief, employers don’t welcome the prospect of having to lay people off. I have had employers put off terminating employees, to the detriment of their company, because the thought of having to terminate someone was so upsetting. It is because this process is so distasteful that employers don’t give thought to the mechanism of the termination. Specifically, how to terminate in such a way that concludes the employment relationship and reduces the likelihood that claims may be brought at a later date.

In this series of Blog posts, we are going to examine termination and the employment relationship. We will examine the “at will” employment relationship, whether it is advisable to object to unemployment benefits after an employee is terminated, and effectively using severance agreements to minimize future liability.

Now, I have to get back to my real job but I promise not to leave you hanging.

Later,

Rod

2009-10-19T13:59:00.000-07:00

Be Careful about who you call your friend.

You all know that I use Twitter on occasion and the same holds true about Facebook. Those of you that know me also know I am the shy retiring type of person who never speaks their mind. That means that I won’t use Twitter or Facebook to their full potential, but at least I won’t bore you will the details of every aspect of my life....like you really care anyhow. When I first joined Facebook, I would get friend requests from people I kind of knew. They were were acquaintances or people that I would routinely encounter in my business. Since I was new to this whole social networking thing, I didn’t want to be rude so I accepted all of their "friend" invitations. Unfortunately a few of those so called "friends" would post a bunch of dribble that demonstrated they had no life beyond social networking. Now I had a dilemma. Since it is probably considered to be more rude to “unfriend” someone that it is to have ignored their friend request in the first place, how to get rid of those posts. The solution was to create two lists. One is the “People I really give a darn about” list and the other is everyone else. (In case you’re wondering, of course, you are on the first list.) Since I have two lists, I always try to be cognizant of what I say on Facebook so I don’t offend anyone who is my “friend.” I also try to be cognizant of what I post, because I don’t want a present or future client, misinterpreting something that I posted. Some people don’t get that concept. Take the following for example: Lindsay, forgot she accepted a friend invitation from her boss, when she let go of the following tirade on Facebook:

“OMG, I HATE MY JOB! My boss is a total pervvy wanker always making me do s— stuff.”

Five hours later her boss responded as follows:

“...I guess you forgot about adding me on here? Firstly, don’t flatter yourself. Secondly, you’ve worked here 5 months and didn’t work out that I am gay? I know I don’t prance around the office like a queen, but it’s not exactly a secret. Thirdly, that “s— stuff” is called your ‘job’, you know, what I pay you to do. But the fact that you seem able to f— up the simplest tasks might contribute to how you feel about it. And lastly, you also seem to have forgotten that you have 2 weeks left on your 6 month trial period. Don’t bother coming in tomorrow. I’ll pop your P45 in the post, and you can come in whenever you like to pick up any stuff you’ve left here. And yes, I’m serious.”

Ouch!!! Firing people over their web posting (doocing) has become commonplace and the trend will continue. Recently, in Canada, an aesthetician was fired on Facebook. Illegal? Probably not. Bad taste? Definitely. Here’s the bottom line. If you are going to spew venom co-worker or boss, don’t do it in a public forum such as Facebook, MySpace, or any other social networking site. (When I was a teen the worst you could do was to write something on a bathroom stall. That was the 70's equivalent of social networking.) Just as important, think before you friend.

Employers should consider the following in light of the popularity of social networking:

1. Consider implementing a social networking policy.
2. Think before you friend. If you are in a supervisory position, consider whether it is advisable to send a friend request to subordinates or coworkers. Remember, that some employees may feel you have placed them in a position where they are required to accept your friend request. Also, consider who it is that your sending the friend requests to. As a manager or owner are your friend requests indicative of favoritism or bias on your part and can your statements made on a social networking site be used as fodder for a harassment or discrimination complaint?

Later,

Rod

2009-07-12T21:59:00.000-07:00

I'm not a techie....

When I meet with people, especially after I speak about privacy and technology in the workplace, I often hear, "I'm not a techie so why do I have to understand social networking, texting, Blogging and cell phones." Usually this is followed by a litany of the evils associated with new technology. Since this post is being done in the relative privacy of cyberspace, I'll confess that when I hear the “I’m not a techie...” speech, I get a physical reaction.

As an employer, you cannot afford not to understand social networking, texting, instant messaging, and any other new technology that is used by your employees. Let's be honest, phones are not just phones anymore. The days of the rotary phone and party line have come and gone. Your employees, who do not consider themselves to be techies, are familiar with all of the latest technology and how it works. Understanding how these technologies work will help you understand how to protect your company from employees that abuse these technologies and allow you to better understand your employees and how they work. For example, I know that if I need to reach two of my employees a voice mail will get a returned call in a reasonable amount of time but a text will generate an immediate response. At first I was puzzled that a text would generate an instantaneous response. Finally, I asked my employees. They explained they prefer a text message because its quick, to the point and devoid of all the formalities that fall under the heading of phone etiquette. As a result, texting is the way I contact these employees. In the process of this adjustment, I learned it is an efficient way to communicate especially when you are in a rush.

As with anything, technology has benefits and risks. When personal computers and Internet usage became mainstream, there was a concern that employees would spend too much time playing Solitaire or surfing the web. Following that, concerns arose about inappropriate email usage. Now with the advent of Blogging and social networking, the alarm bell is sounding again. This time it is a concern over what is being posted on social networking sites or what is being tweeted to the world.

If you are over 30, especially if you believe 50 is the new 30, you need to take a deep breath. Ready? One, two, three....deep breath. You need to understand that there has been a paradigm shift in the way technology and privacy issues are viewed by those who are not as chronologically advanced as you are. To the under 30 generation (I know I am generalizing), posting things about their life on the web is an accepted practice. That means they don't think twice about posting their feelings about their personal and work life. They post things that do not always depict you, your company or your employees in a favorable light. It also can mean that things inadvertently get posted on the web that may be considered confidential. That's right, I said, “..inadvertently get posted...” because my experience has been that when something of this nature occurs it is not always done out of malice but, merely, because social networking sites (I am including Twitter in this definition) have replaced the local pizza joint or neighborhood bar as places for people to vent. The problem is that this new hangout is in cyberspace and every one with an Internet connection is privy to the conversation.

As an employer, the key to getting a handle on this dynamic is to spend some time learning about social networking, Blogging and texting. Most less chronologically advanced (younger) employees would be glad to help you understand these technologies. Once you feel you have a grasp on the technology and how it can be misused, communicate with your workforce through meetings and policies. Let them know what you consider to be conduct that could be detrimental or embarrassing to your company. Most importantly, allow your employees to give you feedback on how these technologies can be used in your business. You might just find a new way of conducting business.

Later,

Rod

2009-06-06T14:00:00.000-07:00

Non-competition Agreements:

Ten (10) Cautionary Thoughts

People do odd things when they enter into a new relationship. I call it the honeymoon period. It's a time when it is all good, your vision is clouded by optimism that overlooks faults or problems that are visible to everyone else. Words of caution from well meaning friends have the sound of crazy alarmist rhetoric. No, this post is not about relationship advice, it's about the workplace.

The same phenomenon occurs when a new employment relationships is started. Employees are so happy to get the job with perceived infinite opportunities for advancement that they never pay attention to obvious signs that the relationship is not going to work. Obvious things like how is the company doing financially, how does it stand in relation to competitors, the turnover rate , and how do present and former employees feel about the company. Employers are guilty of the same thing. They become so determined to fill a need that they do not spend the time checking background and references. They ignore obvious signs of a potential problem because the candidate says the right things in the interview. Every employer and employee has the battle scars from these mistakes. Employees have told me of employers who brag about a fun and joking environment that really meant they would have to endure abusive superiors who took pleasure in berating them. Employers have told me stories of the person who left them with an uneasy feeling but their resume and interview answers were exceptional so they ignored those subtle warnings that are indicative of an employee that will be a problem.

During this time, employers and employees make promises that they feel they never have to keep because they don't envision this new relationship ever ending. One of those promises is the promise to be bound to a non-compete. Most employers think a non-compete is an essential ingredient to protect their company, even though their real concern is confidentiality or non-solicitation. Employees view non-competes as "standard contracts" than everyone has to sign. If you take anything from this post, I want you to remember two things:

1. There is no such thing as a standard agreement; and
2. Everything is negotiable...everything.

With the recent economic downturn, employers are more likely to enforce a non-compete and less likely to look the other way, especially if you are considered to be top talent. IBM, Dell, HP, and Apple have recently been involved in very public disputes over the enforcement of non-competes. To the employee this can mean not getting that great job new job. It can mean having to pursue a new career path or having to move in order to get work.

The truth is that employers and employees to think before they leap into a non-competition agreement. As a result, here are my 10 tips to consider before proposing or inking that non-compete.

1. Ask yourself what you are trying to accomplish.

Is the goal of the agreement to protect your confidential/proprietary information? If so, a non-compete may not be necessary. Instead, you should consider using a confidentiality agreement. Too often employers have not defined what they are trying to accomplish. The end result is they use a shotgun when a scalpel is sufficient.

2. Is the restriction reasonable?

States that enforce non-competition agreements are going to require the agreement to be reasonable in duration and geographic scope. What that means is that you are not going to a persuade a court to enforce a non-compete that lasts for eternity and prohibits an employee from working anywhere in the Milky Way galaxy. They will enforce an agreement that prohibits competition for 1,2 or 3 years in the geographic location where a company actually does business. Remember: Less is more. Prudent employers recognize that non-competition agreements that are narrowly tailored will less likely to be challenged in court. Translation. Less legal fees and a greater likelihood your objective will be achieved.

3. Employees: How you are going to get paid while the non-compete is in effect?

A common complaint from employees is that the non-compete prohibits them from earning a living once they leave their employer. An employee signing a non-compete should consider asking their employer to pay them for the time that they are bound by the non-compete. Although some may think this is a radical idea, it offers distinct advantages to the employer and employee. For the employer, the prospect of having to pay a departed employee its wages has the effect of causing the employer to give serious thought to the duration and geographic scope of the agreement. In addition, by paying an employee during the period of non-competition, the employer has the contractual and moral high ground in the event it has to enforce the agreement. For the employee, it provides an income during the period of non-competition and thereby provides an incentive not to violate the agreement.

4. What happens if your company is sold or you are laid off.

Many employees signing non-competition agreement find themselves bound by that agreement after they are laid off or their employer merges with or is acquired by another company. The time to address these issues is at the beginning of the employment relationship while the prospect of a lay off, merger or acquisition is not on the horizon.

5. Where are you going to dance and what type of music will you be dancing to?

Lawyers refer to this as venue and choice of law. Venue means the court that will hear any dispute over the non-compete. Savvy employers will insist that cases are heard in jurisdictions that are inclined to enforce non-competes. Choice of law is the law that will apply. Again, employers will insist on jurisdictions that favor enforcement of the agreement. Employees should exercise great care when it comes to venue and choice of law clauses. One of the worst things for an employee to encounter is having to defend against enforcement of or challenge a non-compete in another part of the country. This gives the party with the most money a distinct advantage.

6. Tell prospective employers about your non-compete.

Many employees try to act like a non-compete does not exist. When the former employer alerts the new employer that the employee is bound by a non-compete, the employee acts surprised when they find themselves out of a job. It is always in the employee's best interests to allow a prospective employer to view their non-compete. In that way, the new employer can have the agreement vetted by their legal counsel. In many instances, if legal counsel opines that an employee is not barred from working at a company because of a non-compete, the employer will agree to provide their employee with legal defense in the event the past employer seeks to enforce the agreement.

7. Tell your employer that you have accepted the new position.

Transparency goes a long way. Many employees create problems by not being candid with their employer. Instead, they accept a position with a potential competitor. Once the former employer learns that the employee has accepted the new position, it immediately assumes the worst. Not only does this usually result in litigation, it also jeopardizes any possibility that the employee will be able to return to the company in the future.

8. Make sure you pay consideration to support the non-compete.

Many states require a non-compete to be supported by consideration. Talk to your lawyer to determine what is adequate consideration for a non-compete.

9. Figure out what it is that you need?

This goes back to item 1 which was what are you trying to accomplish. If you want to prohibit a departing employee from raiding your workforce or your customers then have them sign a non-solicitation agreement. If you are trying to protect confidential information such as customer names or other data your company treats as proprietary have the employee sign a confidentiality agreement.

10. Don't forget about the UTSA and the employee's duty of loyalty.

Once you, as the employer, define what it is that you are trying to protect, you will find that legal remedies exist that are designed to protect you. Many states, including Washington, recognize that a departing employee has a duty of loyalty to their employer until they leave. In addition, most jurisdictions recognize the Uniform Trade Secrets Act (UTSA) which has a strong enforcement mechanism. Sometimes these existing legal mechanisms, are adequate to address your concerns.

Later,

Rod

2009-05-09T13:27:00.000-07:00

Facebook habit leads to job loss

Social networking can have its benefits. It can also have its drawbacks. Consider the case of a woman in Switzerland who was fired for being on Facebook while she off of work sick. When I first read the teaser for the article, my first thought was, "That's horrible. She has every right to surf the web and social network while off sick." Then I read the article.

According to the news report, the woman told her employer that she could not work in front of a computer terminal and needed to be in the dark. Apparently, that did not prevent her from using her iPhone to update her Facebook status. While the employee felt the employer's actions were an invasion of privacy, the employer felt this was an "abuse of trust." That's a nice way of saying you're fired for lying, which is precisely what occurred.

Lessons learned:

Before the Internet, employees fibbed about being sick to catch a baseball game or to have a "mental health day." Today, the same thing still occurs. The only different thing is the context has changed.

No, I'm not advocating that an employer terminate every employee that updates their Facebook status or tweets while off sick. The point here is that the employee appears to have lied about the reason for their being off. Even under these circumstances, any employer that is considering termination for this offense ought to give some thought to the following:

1. Was the nature of the illness such that some time resting may have resolved it. As anyone with Migraines knows, a couple of hours in the dark with your eyes closed can have tremendous results.
2. Is termination really necessary? Assuming the employee lied about this, is this a case where some other form of disciplinary action may have an educational effect? Sometimes in cases of this nature, employers will fire first and evaluate whether their treatment was consistent with past practice later. That can give rise to claims of bias in the termination process.
3. If termination is deemed the best approach, then has that decision been vetted by the appropriate decision makers?

Finally, employees remember that friends on social networking sites are a mix of friends, acquaintances, and people that have asked to be your friend that really don't know you. That means what you say and do on a social networking site has the propensity to get back to those folks at work.

Just some thoughts,

Rod

2009-04-25T18:12:00.000-07:00

Seattle Law Bloggers Meet

About once a quarter the Seattle Law Bloggers get together to share ideas on everything from Blogging techniques to practice management. The last meeting was held at Spitfire a local bar just north of the heart of downtown Seattle.

Nineteen (19) Bloggers were in attendance. See pics below:

In the picture above, Shalini Gujavarty (right) (www.avvoblog.com) is sitting beside D. Jill Pugh (www.employmentlawwa.com)

I think it's time for the Bloggers to take a roadtrip to Vancouver to meet some our fellow Blogger north of the border.

Rod

2009-04-20T12:59:00.000-07:00

Cheer Leading Coach gets Dooced!!!

The term "dooced" used to mean that you were fired for something that you put on your Blog or website. The term was coined by Blogger Heather Armstrong when she was fired for commenting about her work on her Blog, dooce.com. Today, getting dooced is nothing new. Employees are routinely getting fired for their Internet activities.

Case in point, cheer leading Coach Carlie Christine was discovered posing as one of Playboy's Cyber Girls of the Week. The end result, Carlie is out job hunting. While some websites report that the revelation of Ms. Christine's photographic pursuits occurred after some bitter teens were cut from the cheer leading team, that really does not matter. Nor does it really matter that the parents were upset or that, allegedly, the entire football team was aware of the pictures. The bottom line is this. We are no longer living in a time when the only people with an Internet connection are scientists and geeks with lifetime memberships in the United Federation of Planets (Live long and prosper). As a consequence, the likelihood that your Internet activities will be discovered has increased exponentially.

Employees:

Let's put aside what your mom may think about your conduct. The real issue for employees is what future employers may think about you based on what you post online. The next time you wax poetic on your Blog or upload pictures of yourself and your friends in an alcohol and cannabis induced stupor, you may want to give thought to what a prospective employer will read and/or see. Is it fair? Probably not. However, when you are applying for a job, your employer will take the time to Google you. In most instances, they will not be impressed with your ability to chug a 40 oz beer. I'm not telling you not to do your "social thing" but consider who will see your pictures. Remember, just because you set your account to private won't stop one of your friends from copying and posting your embarrassing moments on their website. After that, the proverbial cat is out of the bag.

Employers:

Don't hide you head in the sand. Have a Blogging policy and advise your employees that you will consider conduct that may portray your company in a negative light as an offense that could result in termination. In that way, when you have to terminate someone, because of their conduct on the web, it will come as no surprise. I bet that Coach Christine did not make the connection between her pictures on web and her termination until it happened. By then it was too late. This has turned into a lose-lose situation. Ms. Christine has to find a new job and the school district is left looking for a new employee. A little communication may have avoided this entire issue.

Later,

Rod

2009-04-15T10:43:00.000-07:00

For all you lawyers out there.

I came across a quote from the famous trial lawyer, Richard "Racehorse" Haynes, that I think any lawyer that tries cases can identify with:

"I would have won them [all], if my clients hadn't kept reloading their gun and firing."

Think about it.

Rod

2009-04-14T13:40:00.000-07:00

Cracker Barrel settles sex harassment lawsuit

Cracker Barrel just settled a sexual harassment lawsuit with the EEOC. (Click here to read article) The allegations surrounding this claim were that the General Manager, Managers and male employees, at the Cedar Bluff, Tennessee Cracker Barrel, subjected female employees to lewd comments and sexual jokes. The employees alleged they reported their complaints to management and an employee hot line and no investigation was forthcoming.

The settlement requires Cracker Barrel to do the following:

1. Pay the victims $225,000;
2. Modify its sexual harassment and investigation policies; and
3. Perform the following for the next three (3) years:

a. conduct annual training on issues of sexual harassment and retaliation;
b. maintain of log of and report any claims of sexual harassment; and
c. post its policy on sexual harassment and that it will investigate anonymous complaints of harassment.

Bottom Line:

During tough economic times there is a tendency to avoid training on issues of harassment/discrimination in an effort to save money. This is the wrong approach to take. Training helps prevent lawsuits, stops you from paying attorneys, and allows your employees to focus on their jobs rather than have to do their jobs and participate in the litigation process.

Although training is key, please don't overlook reviewing your handbook. Policies that are antiquated should be eliminated. If you don't use or you don't follow it, get rid of it. The same holds true for your forms. As one speaker said, "I'd rather have no documentation than bad documentation." This hold true for forms. Forms are great, however, if your forms are never used they can become a liability. (see my previous posts on documentation)

Later,

Rod

2009-04-07T10:36:00.001-07:00

Romance...

I just came across Vault's 2009 Office Romance Survey. Before I talk about the survey, here's my disclaimer. This seems to be a voluntary Internet survey and I have no idea how many people participated and whether it has any scientific validity. Also, this is probably the first time I have had what some may describe as a rant on my Blog.

So how did a simple survey on romance, of all things, get me so worked up? Simple, in my job I see the fallout from failed office romances. Too often they cause a mess. People lose their jobs and companies get sued. No, I am not being dramatic, although I will confess to having my moments. For every successful office romance, I can probably show you 5 disasters or at the very least a disaster in the making. Some of the results of the Vault 2009 Office Romance Survey surprised me, starting with Question1 (For those of you who can't wait to see the survey click here.)

Have you ever been involved in an office romance?
Results: Yes 58%
No but willing 12%
No 30%

In other words, the number of people that would have had an office romance would be as high as 70% but 12% of the survey participants haven’t had the opportunity, but they are ready to go. Following Question 1, Vault listed comments by survey participants. One of the comments listed, presumably by a survey participant, was:

"We worked in one large department, but were not related in subordination (I was in finance and he was a lawyer). The romance bloomed after a corporate party together but did not last long"

From this quote we can learn two things. First, contrary to popular belief, even lawyers are susceptible to Cupid’s arrows. Second, when it comes to matters of the heart, even those conservative legal and finance types don’t exercise the best judgment.

I am prepared to receive my share of hate mail from those of you who work tirelessly and don’t have time to engage in the time honored tradition of socializing outside of work to find a life partner. It takes effort, it costs money and it’s just not that efficient. Let’s face it, in tough economic times it is cheaper just to meet someone at work than go through the dating thing. What did your mom tell you? “Penny wise, pound foolish.” I also know that some of you probably met your soul mate at work. To you, I can only say, “I’m really happy for you. Too bad you are the exception rather than the rule.” According to the Vault survey only 24% of survey participants met their spouse/long term significant other on the job, which means the other 76% did not meet their life partner at work.

The truth is that most office romances don't last, they make things uncomfortable for your coworkers and cause problems for your employer. The problem in most cases is not the romance [although it can be a problem if you have couple of adults displaying PDA(public display of affection not personal digital assistant) like teenagers at summer camp]. In fact, the problem with an office romance begins in those 76% of the cases when the romance ends and someone is hurt. Hurt feelings cause people to act irrationally. Coworkers get recruited to align themselves with one person or the other. In the worst case, one of the refuges from the romance is in a position to make life, for the former object of their affection, miserable. This can lead to claims of harassment and retaliation.

Even if things don’t go that far, a failed romance can cause people to leave your company. Interestingly, the Vault survey found that 26% survey participants left their employer because it was "too awkward to work together after a break up." Heck, even if the romance is the start of a great relationship, it can cause an employee to leave. According to the Vault survey 26% said they didn't want to work together after they became a couple because of "too much closeness." In either circumstance, the employer loses out and has to absorb the cost of hiring and training a new employee. Now that I'm through with my rant, let me tell you how I really feel:

1. In my ideal world office romances of any sort would be banned. I would take it one step further. Anyone that thought of starting an office romance would be required to buy a pet. This would simultaneously solve the problems associated with office romances and overcrowded animal shelters. I have to be realistic. I understand that people are people and whether I like it or not they will have office romances. In my twisted lawyer world, your office romance is a form of job security.

2. If you have an office romance with someone you supervise, three words: Quid Pro Quo. When this relationship implodes, explodes or just gets messy, you may have just placed your company in the position of having to defend a claim for Quid Pro Quo sexual harassment. Trust me, when this relationship is over, particularly if you broke it off, the other person won't be shooting good vibes your way. More likely than not, they will begin to question whether this was a consensual relationship and whether you abused your power to get them to engage in this relationship.

3. If you think you can divorce your hurt feelings following a breakup from how you act toward your coworker/former special person, repeat after me: “You are hallucinating.” You can’t and no one expects you to, but your coworkers would appreciate it if you did not act out scenes from Fatal Attraction in the workplace.

4. Employers:

a. Recognize that office romances will happen and plan for them. Don’t be like the 65% of the companies that the Vault survey participants worked for that did not have a policy addressing office romance.
b. Consider at the very least having employees report their romance to HR, particularly if it involves a supervisor/subordinate romance.
c. Have a written policy addressing office romances that includes a protocol to report any retaliation that may occur once the romance ends. d. Once you have a written policy, train employees on how the policy works.

5.Employees:

a. Don't do it. Did I say, "Don't do it." If not, just don't.
b. I know we are all working long hours but it’s not Cupid’s arrow you feel. You are just too exhausted and delirious from working long hours to use good judgment. Get some rest and distance before you decide to jump into that romance.
c. If your coworker or boss is pressuring you to date or get romantic, tell them no and, if that does not work, run (don't walk) to HR and make a report.

Just some thoughts,

Rod

2009-04-06T11:00:00.000-07:00

2.3 Million reasons to have an effective training program

On Wednesday of last week, a Los Angeles jury returned a verdict in favor of Officer Melissa Borck in a lawsuit against the Los Angeles Police Department. The verdict: $2,300,000.00. (To read more click here.)

From what I have read, the allegations include an incident where a male officer pushed Officer Brock's head to his groin and stated, "I thought you would never ask." In addition, while pregnant, male officers commented about the size of her breasts and asked her to breast feed them. Borck contended that the stress of the hostile work environment caused her baby to be stillborn. She also contended that females were ordered, by male officers, to make coffee and get lunch. According to Borck, the work environment was one of constant harassment and retaliation for female officers.

This result should not have been unexpected. In November of 2008, the LAPD was hit with a $2.25 million dollar verdict in a suit brought by another female officer, Patricia Fuller of the Bomb Unit. Fuller alleged that she too was subjected to unwelcome sex based conduct that included male officers exposing their genitalia, sexually explicit comments, and exclusion from training programs.

The Bottom Line:

Contrary to popular belief, sexual harassment is not something that we no longer need to be concerned about. The truth of the matter is that human resources departments must continually fight this problem. There is no easy solution for the problem. Employers that have had success battling this form of harassment have taken a two prong approach to training. The first prong addresses issues of sexual harassment and gender discrimination in the workplace. The second emphasizes the manner in which complaints of harassment are reported and provides employees assurances that they will not be the subject of retaliation for their reports. However, no amount of training will be effective if upper management does not dig in its heels and mandate that a zero tolerance policy for sexual harassment that includes harsh discipline for violations of that policy, even if the culprit is a "rising star" in the organization.

Later,

Rod

2009-03-04T12:21:00.000-08:00

New Cobra Information

The Department of Labor has recently announced it has updated its website with new information for employers in light of the recent changes to COBRA. To view the DOL website or download new posters click here.

Take care,

Rod

2009-02-25T10:06:00.000-08:00

Washington Employers: Workplace Posters

The Department of Labor and Industries has updated three of its workplace posters which are required to be posted in a conspicuous place in the workplace. The updated posters are:

1. Job Safety and Health Law (click here to download)
2. Your Rights as a Worker (click here to download)
3. Notice to Employees-If a Job Injury Occurs (click here to download)

Make sure you get these downloaded and posted as soon as possible.

Later,

Rod

2009-02-24T15:03:00.001-08:00

Correction to Cobra Bites Post

Last week I posted an update on the legislative changes to COBRA that are part of the economic stimulus package. In that post I indicated that individuals that paid for COBRA at the full rate since September 1, 2008 would be able to receive a reimbursement for 65% of the premiums paid since under the terms of the new legislation they are "assistance eligible individuals." One of my readers, anonymous, told me I was wrong about this since the legislation speaks of subsidizing premium payments from the date it is sign (2/17/09) forward. I responded that I didn't think that was the case since the definition of an assistance eligible individual is someone who was involuntarily let go on or after September 1, 2008 and before January 1, 2009. I felt the legislation was not clear on the issue and, let's be honest, I just couldn't accept that a person who found a way to pay the premium between September 1, 2008 and February 17, 2009 should be penalized. I mean, hey, this is an economic stimulus package after all and if you reimburse an assistance eligible individual for past premiums, then they will use that money to stimulate the economy. Well, I was wrong. I just found the following on the Department of Labor website:

The premium reduction provisions relate only to premiums for coverage periods beginning after the new law was enacted on February 17, 2009. The law does not allow reimbursement of premiums for coverage periods beginning before February 17, 2009. Qualified individuals can, however, receive the premium subsidy going forward, for up to nine months.
Your plan administrator should provide to you a notice of your right to apply for the premium reduction. You may also want to contact your employer directly to ask about getting the premium reduction and how to reconcile any amounts you might have overpaid after February 17, 2009.

So there you have it. I stand corrected and thanks for the heads up Anonymous. In the meantime, I will keep you up to date on additional information I learn about COBRA.

Take care,

Rod

2009-02-18T20:47:00.000-08:00

EEOC settles sex harassment case for $200K plus

According to the EEOC, a female employee (Bell) that worked in the Service Department at Murphy Ford, in Chester, Pennsylvania, was the victim of sexual harassment perpetrated by the store Service Manager. The Service Manager is alleged to have made explicit sexual remarks, commented about oral sex, and grabbed his private parts in the presence of the Bell and other females. Bell went to upper management and ownership in an attempt to get the matter resolved. Shortly, after her reports she was abruptly terminated.

The dealership settled the case for $244,000.

Take Aways:

1. Take all complaints seriously.

2. When a complaint is received investigate immediately.

3. While the investigation is pending give consideration to what steps can be taken to avoid retaliation.

4. In the event you are able to confirm serious misconduct by the alleged perpetrator. Act swiftly and meaningfully. Make sure your disciplinary action is tailored to the seriousness of the conduct such that it will have the effect of stopping it. Don't be afraid to terminate. Trust me, your lawyer would rather defend the wrongful termination claim than the sexual harassment claim.

5. Think twice and then a third time before firing an employee that has raised issues of harassment or retaliation. Even if there is not enough to establish a claim for harassment or discrimination, your actions in terminating the employee will be viewed as retaliatory. Courts, and juries, place a great deal of weight on the temporal relationship between the report of harassment and discrimination and the adverse action. In plain English: Timing is everything. If the action you take looks bad, juries will assume it is bad.

6. Be proactive. Train, train and train some more. Even in difficult economic times it takes a whole lot of training to add up to $244,000.

Just some thoughts,

Rod

2009-02-17T14:54:00.001-08:00

CAUTION: COBRA may bite.

Employers that employ 20 or more people are required to comply COBRA. What that means is these employers have to allow departing employees the option to continue their health insurance by paying the premium, as well as, a 2 % administrative fee. Most employees, unless they have a serious health condition, do not elect to have COBRA coverage. They make this decision for a variety of reasons. Typically, they can find similar insurance for less or they conclude the benefit is cost prohibitive.

Enter the stimulus package. Under the stimulus package signed by President Obama today, the government is going to subsidize 65% of an employee's COBRA premium provided the employee became involuntarily unemployed (that's a nice way of saying someone done stole your cookies) between September 1, 2008 and December 31, 2009.

My first thought was, "How does this all work?" The answer appears to be that when an employee elects to receive COBRA benefits, after becoming "involuntarily unemployed" the employer pays 65% of their COBRA benefit. Then the employer will be able to offset that premium payment against their payroll taxes. (More business for my CPA buddies.) In addition, employers must contact their employees who elected to receive COBRA on or after September 1, 2008 and notify them that they are entitled to have their former employer reimburse them the 65% of the premiums paid to date. Let me see if I can anticipate the next question. What if you did not elect to receive COBRA because of the cost and the election period has expired? Well, all is not lost. Apparently, you will get a new election period. That means that employers will have notify employees let go between September 1, 2008 and February 16, 2009 to allow them a second opportunity to elect receipt of COBRA benefits, this time under the terms of the stimulus plan. Once notified, employees will have 60 days to make that election.

The bad thing about legal training is that your brain gets to a stage where it never stops churning. So I don't know whether employees who were terminated before September 1, 2008 but whose COBRA election period expired on or after September 1, 2008 will be entitled to receive a second chance at the new and improved stimulus COBRA. My suspicion is they won't. I'll let you know what I find out.

For those of you, like me, that can brag that tax was their worst class in law school and believe that Calculus was conceived to flummox us average folk, here is a video to explain the economic stimulus package.

Later,

Rod

2009-02-17T11:28:00.000-08:00

Blog to watch

Kimberlie Ryan is an attorney, teacher, television legal analyst and author in Colorado. I ran across her Blog (Kimberlie Ryan's Hot Button Forum) after reading an article she published on severance agreements on the website of a Colorado television station. Her Blog is a good read. In her Blog she talks law, politics, and offers some opinion. You may not always agree with her, but she'll at least get you thinking. To read Kimberlie's Blog click here or scroll down to my Blogroll.

Got to go. My paralegal is telling me its time to get seminar materials, due next Monday, done. First things first, I think I'm going to take the jump and try Twitter. You should see the link to Twitter come up soon.(Unless I mess it up and crash the Internet.)

Later,

Rod

2009-02-15T20:54:00.000-08:00

1.55 Million Reasons to get your act together...

The EEOC recently announced that it settled a claim brought against Merrill Lynch for the sum of $1,550,000. In it's lawsuit the EEOC alleged that Merrill Lynch refused to promote and terminated Majid Borumand because of his Muslim faith and Iranian descent. According to the EEOC, at this same time Merrill Lynch promoted a less qualified individual. In addition to the financial terms of the settlement, Merrill Lynch had to agree to provide training on discrimination based on race and national origin. In addition, it had to agree that it will not discriminate based on race and national origin, nor will it retaliate against those who oppose discrimination in the workplace.

Employers it's time to pay attention to these claims they are on the rise and this case is not an aberration in terms of value. Just recently, a federal appeals court upheld a $756,000 damage award against AT&T in favor of two Jehovah's witnesses who were fired after attending an annual convention for members of their faith.

2009-02-12T10:24:00.000-08:00

Law Firm sues former Associate for educational expenses.

When employees elect to leave an employer, they often fail to consider whether they have obligations to their employer. Although I don't know if that was the case in a matter involving an associate at the Perkins Coie law firm but according to a recent article (click here to read), Perkins Coie is suing one of its associates for approximately $36,000 in educational expenses paid by the firm. That employee left for a rival law firm. According to the article, Perkins advanced educational expenses that the employee could then work off over time. When the associate left, he had not worked off his expenses and Perkins must have decided its time to pay up. I haven't seen anything other than the article linked above so I won't address the merits of the claim or any potential defenses.

Why write about it? Well for a couple of reasons. Employees sometimes get the impression when they take a new job that they can leave without any obligations to their current employer. That is not always the case. Unfortunately, most employers offer to help with things like educational assistance but don't think about what will happen if the employee decides to leave shortly after they have received the benefit. To be fair, the employee does not give thought to this either. Typically, these agreements are made between the employee and employer during what I refer to as the honeymoon period. It's just human nature that we don't want to think about what will happen if things sour. That's a mistake. These things need to be discussed and memorialized (that's a lawyer term for get it in writing). Please be a little more detailed than reciting, "Joe agrees to repay our company for educational expenses if he leaves." Consider including the following:

1. How will it be repaid? In lump sum or over time?
2. Can the employee discharge all or a portion of the obligation by meeting performance goals and/or through length of service?
3. If a law suit becomes necessary will it be heard in court or in an arbitration proceeding?
4. In what jurisdiction will the dispute be heard?
5. Will the prevailing party be entitled to recoup their attorney's fees and court costs?

Finally, if you are an employee and are concerned about having to repay your employer for a job benefit, raise that issue before you leave. By being transparent with your employer, more often than not, you will find that these issues can be worked out.

Rod

2009-02-07T21:23:00.000-08:00

Rod's Reminder:
Don't forget about the WLAD

Washington is one of those few states that has a strong state law against discrimination, the Washington Law Against Discrimination (WLAD). Too often when employers enter into to a dialogue of sexual harassment, and other forms of discriminatory conduct, they tend to focus on the federal components of the law (i.e. Title VII, ADA, FMLA). In so doing they fail to take into account that they may have a greater obligation to act under corresponding state law. In addition, keep in mind that an experience employment law attorney will always examine the facts of their client's case to determine which law affords a greater degree of protection.

The lesson: Ignore state law at your peril.

Later,

Rod

2009-01-31T11:39:00.000-08:00

Severance Agreements

Since I represent employers and employees, I have mixed feelings about severance agreements. Originally, severance was a benefit that was offered to employees to reward them for their length of service and loyalty to the company. That original concept has evolved. Today, a severance agreement can include a number of things:

1. A financial payment to employees
2. A release of all claims
3. A confidentiality agreement
4. A non-solicitation agreement
5. A non-competition agreement
6. A non-disparagement agreement (i.e. you are not going to bad mouth the company)
7. A catch all for everything the employer didn't get around to having you sign before they decided to eliminate your position.

Too often, employees sign these documents without question. Their rationale is that it is a standard document as if there is a form severance agreement that every employer must use. There isn't, although the waiver of rights under certain laws may require the employer to include warnings or notices.

Virtually, every severance agreement includes something similar to the following language:

This Agreement constitutes the entire agreement between John Doe and The Company and supersedes any prior agreements or understandings, express or implied, pertaining to the terms of John Doe’s employment with The Company, the termination hereof, or any other matter related to any claim John Doe may have against The Company. John Doe acknowledges that in executing this Agreement he does not rely upon any representation or statement made by The Company or any representative or agent of The Company concerning the subject matter of this Agreement except as expressly set forth in the text of this Agreement.

In plain English, if it's not in the severance agreement it didn't happen and the employer does not have to do it because the severance agreement supercedes everything. In other words, if the employer promises to give you a glowing letter of recommendation, get it before you sign or address the issue in the agreement. If the employer owes you money for vacation and other accumulated PTO, that severance document should reflect you are receive that payment. If you are leaving on less than desireable terms, it may be advisable to address what information will be conveyed to future employers.

It's not my goal to create a negative impression about severance agreements. I think they can be a valuable tool that allows an employer to tidy matters up while providing the employee with a financial benefit that will help them in their employment transition. My goal in writing this post is to convey to employees that you should read what you sign, understand what duties you and your employer have under the severance agreement, and get legal advice from an employment attorney before signing the agreement.

Later,

Rod

2009-01-30T10:24:00.001-08:00

Earthquake

This morning I woke up to find out we had an earthquake here in the Seattle area. Depending on who you listen to it was 4.5 or 4.6 magnitude earthquake. I slept right through it. Those of you that have been in an earthquake know that it's not that big a deal until it his a 5 plus magnitude. Then it gets your attention.

Often, in the workplace there is a similar phenomenon. You've know there are employee problems, but they really have not risen to a crisis level so you don't take action. It doesn't mean there isn't something serious going on, but it's just not a jolting event that will prod you into action. If left unattended, these small problems can become catastrophic to your organization. Sometimes, the small problem is a symptom of a larger and, ultimately, more costly issue.

Unfortunately, with so much of our day being controlled by what comes and goes through your email inbox, it is difficult to have face time with employees. Nevertheless, it is when you first learn of a small problem that you, as a manager, owner, or human resource representative need to be there to ask questions and listen. I have seen many instances where management believed that they were faced with a personality conflict between employees only to later find out, in a lawsuit, that the real problem was discrimination, harassment or retaliation. More often than not, the litigation could have been avoided if a company representative, after learning there was a problem, had asked the most powerful question in their arsenal: "Why do you think this is happening?" The "why" question places the ball squarely in the employee's court. They either have to admit they don't know why or tell you their real suspicions. If the former, you make an appropriate notation in the employee's file and you can use that as a defense in litigation. If the latter, you know know it is time to investigate and get to the root of the problem. Either way, you have probably saved your company a significant sum of money and provided it with valuable defenses it would not have had otherwise.

Later,

Rod

2009-01-27T20:41:00.000-08:00

IBM and Papermaster settle

In my November 18, 2008 (Apple and IBM mix it up), I wrote about a lawsuit filed by IBM against Mark Papermaster, its guru of IBM’s Power Architecture and X-64 Blade Servers. The gist of the lawsuit was that Papermaster allegedly violated his non-competition agreement with IBM when he accepted a position with Apple that gave him oversight of the iPod and iPhone. Apparently, IBM felt that Apple really hired Papermaster to expand its server business by using confidential information Papermaster acquired while working at IBM. IBM won the first round by convincing a judge to issue a preliminary injunction that prohibited Papermaster from moving to Apple. As a condition of getting a preliminary injunction, IBM had to post a $3 million bond to protect Papermaster from financial loss in the event the judge would later determine the injunction should not have issued.

At the time I wrote the November 18, 2008 post, I suspected that this case would be “resolved to the satisfaction of the parties.” Translated into plain english that means that someone paid a lot of money to make the case go away. No one is talking money, although IBM has issued a statement outlining some of the parameters of the settlement. (To read about the settlement terms and get additional details of the litigation click here.) As a lawyer, I was selfishly hoping that this case would not have settled because it was fascinating to watch the tactics employed by the parties. Never the less, it is best for the parties to settle the case.

Take Away.

Employees:

Always, always, always think about what you are going to sign and get legal advice before you sign a non-competition agreement. There is no such thing as a “standard agreement.” Often employees sign a non-compete with no thought of what will happen in the future. While you may be excited about that job and the pay increase, life ain’t always gonna be a bowl of cherries. Once you sign, you are bound and you won’t get a do over. Management and the direction of the business may change and you may not like those changes. If that happens, you do not want to be out of a job, without an income and considering accepting a position making caramel apples at the local amusement park to make ends meet. Here are just a few things to consider before signing a non-compete:

1. Are you being compensated during the period in which you can’t compete?
2. Is the non-competition agreement valid in the case your company is sold/acquired?
3. Are there any circumstances under which the agreement will not be enforced?
4. If there is a dispute, what court will hear the dispute and what state’s law will apply?

Employers:

Don’t plagiarize a non-compete used by a colleague and don’t use a form you find on the web. Although courts will enforce non-competes, they are reluctant to do so. You need to have a non-compete that is narrowly tailored to your business needs. While it may feel good to prohibit an employee from competing with your business anywhere in the universe for the next 10,000 years, that type of over broad approach will not endear you with the judge. A judge, however, will enforce a tightly drafted agreement that is relatively finite in duration, limited in geographical scope, and supported by consideration. It short, have your lawyer draft the non-compete.

Employers and Employees:

When you approach a non-compete, remember the lyrics of the old song, “You can’t always get what you want, but if you try some time, ......(you know the rest)”

Later,

Rod

2009-01-26T11:32:00.000-08:00

New U.S. Supreme Court decision

Folks, this one is hot off the presses.

This involves a lawsuit brought by an employee (Crawford) against the Metropolitan Government of Nashville (Metro). Crawford, in response to an internal investigation related to rumors of sexual harassment by her supervisor (Hughes), reported that Hughes had sexually harassed her. No action was taken against Hughes, but Crawford was terminated shortly thereafter on allegations of embezzlement. Crawford sued Metro alleging she was being retaliated against for her report of Hughes' conduct. The trial court dismissed her claim. The dismissal was upheld by the 6th Circuit Court of Appeals on the basis that Crawford had not initiated a complaint of discrimination but merely responded to questions in an investigation.

The Supreme Court reversed the 6th Circuit Court of Appeals and the trial judge. In so holding, it found that an employee can oppose sexual harassment by responding to questions during an internal investigation as well as by affirmatively reporting the conduct. The Court stated it would not countenance a "freakish rule" where one person is protected from retaliation because they reported it while another is not because they were asked a question.

THE BOTTOM LINE: This is a frequent concern of employees. Employees are fearful that if they respond to questions, in a harassment or discrimination investigation, that they will lose their job. If there was any doubt about the answer to that question, the Crawford case puts an end to it. Employers should bear in mind that if, during an investigation, employees confirm harassment and discrimination; those employees are most likely protected against retaliation.

For those of you interested in reading the Crawford decision, click here.

2009-01-23T11:21:00.000-08:00

Paralegals and Executive Assistants
The unsung heroes....

I can remember my first paralegal. Her name was Rita. When I got out of law school she had been at her vocation for probably thirty years. Although I knew the theory of how to build a rocket, the truth was I never built rocket and certainly never launched a rocket. Rita on the other hand had built, launched and successfully rockets on the moon for years. She was awesome. This was a time when the personal computer was just going mainstream in small offices. Rita preferred to work on her IBM Selectric. She could make that IBM Selectric sing as she banged away on the keys with a lit Marlboro in her left hand. I'll never forget her because, through her actions, she taught me the importance of paralegals and assistants to the success of any professional.

I learned there can be two types of lawyers, those that use and abuse their staff and those that appreciate their staff. I like to think that I fall in the latter category. A good paralegal or executive assistant can make life easy for any business person. That's why when I read articles like the one recently published on a legal website (to read the article click here), I was disappointed to find that the top four problems paralegals say they face in the workplace are a failure to pay overtime, sexual harassment, family and medical leave issues and retaliation for whistle blowing. Once I reflected on the article, in light of several cases I recently concluded, a light came on. These are the same problems that are experienced by executive assistants every day in every part of this country. For those of you that are struggling with a company or boss that is not treating you properly, you have a remedy available to you. More importantly, you have a right to be treated fairly at work. For those of you that are mistreating your staff, stop it. If you don't think you can, here's some food for thought. A California appellate court just upheld a $2.4 million dollar verdict and a $750,000 attorney fee award against Vonn's in a sexual harassment and retaliation claim. (Click here to read more.)

More on this topic in a later post,

Rod

2009-01-20T12:40:00.000-08:00

Congratulations President Obama

Since its adoption, our office has been closed on the Martin Luther King, Jr. holiday. This year, given the historic nature of the presidential election, our office is also closed on Inauguration Day. Regardless of whom you voted for, this past presidential election confirmed the American Dream.

As a lawyer, who over the years has represented individuals that have been the victim of discrimination, retaliation and workplace harassment, this day takes on a special meaning. That is not to say that we will never see this type of conduct in the workplace nor does it mean that the task is complete. What it means is we have taken a great step forward.

Hopefully, our new President will have the courage, wisdom, and discernment to lead our country through this difficult time. In reflecting on today, I am reminded of the words of the late Dr. King,

“An individual has not started living fully until they can rise above the narrow confines of individualistic concerns to the broader concerns of humanity….Every person must decide, at some point, whether they will walk in the light of creative altruism or in the darkness of destructive selfishness. This is the judgment. Life’s most persistent and urgent question is, What are you doing for others?”

Later,

Rod

2009-01-15T21:17:00.000-08:00

Birch Bay Resort settles same sex harassment case

Worldmark by Wyndham, according to the EEOC, has just settled a same sex harassment claim for the sum of $370,000. According to the EEOC, a manager touched victims, commented on their appearance and created sexually charged situations. To read more click her e.

2009-01-15T14:07:00.000-08:00

Dentist settles sex harassment lawsuit.

A Chicago dentist was recently sued by the EEOC. According to the EEOC, the dentist sexually propositioned female employees, touched them in an unwelcome manner and required them, as part of their job, to attend Scientology seminars. To read more about this case click here.

As part of the settlement, the doctor agreed to pay $425,000. In addition to the $425K, the doctor will also have to pay an independent outside entity (probably a lawyer or former HR Director) to receive and investigate complaints of sex harassment and religious discrimination for the next three years.

Doc, I hope you had employment practices coverage because you are gonna have to fill a lot of teeth to come up with $425K. If your lawyer hasn't told you already, stick to the practice of dentistry and keep the other stuff outside of work.

2009-01-05T11:30:00.000-08:00

Employer Alert

I don't know about you, but I have enjoyed taking some time off during the holidays. Rarely do you know how much you need rest until you get it. So I guess the good news, to quote the Governor of California, "I'm baaack!!!"

With the new year starting, Washington employers should be aware that the state minimum wage has increased to $8.55 per hour. In addition, the Department of Labor and Industries has issued a new poster that incorporates information concerning the new minimum wage. You can get that poster by clicking here.

I also want to remind those who may have missed my December 19, 2008 post, that the Department of Labor has issued new a new FMLA leave forms. To get those links, go to my last post.

Here's wishing that your 2009 will happy and prosperous.

Later,

Rod

2008-12-19T12:47:00.000-08:00

EMPLOYER ALERT
NEW DOL FORMS

The Department of Labor(DOL) has just announced that it has issued new forms for use in the FMLA process. The only WH-380 form has been revised. In its place DOL it has created two new forms:

1. WH-380E: Employee's Serious Health Condition (Click here to get Form WH-380E)
2. WH-380F: Family Members Serious Health Condition (Click Here to get Form WH-380F)

DOL also revised Form WH-381, the Notice to Eligibility, Rights and Responsibilities Form. (Click here to get Form WH-381).

Since we can never have enough forms, DOL has created three (3) new forms:

1. WH-382: Designation Notice to Employee of of FMLA Leave. (Click here to get Form WH-382)
2. WH-384: Certification of Qualifying Exigency for Military Family Leave. (Click here to get Form WH-384)
3. WH-385: Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (Click here to get Form WH-385).

2008-12-19T12:41:00.000-08:00

EMPLOYER ALERT: NEW FMLA POSTER AVAILABLE

The Department of Labor has just announced that it has issued a new FMLA poster that incorporates changes reflected in its final FMLA rules that were recently published. This poster must be displayed in the workplace in a conspicuous place. To get the poster click here.

2008-12-09T21:13:00.000-08:00

Mumbai: The HR wake up call.

The events that unfolded recently in Mumbai, India were tragic. My prayers go out to those who have suffered as a result of this horrific event.

The unfortunate aspect of an event like Mumbai is that is illustrates how vulnerable we all are to terrorist acts and cataclysmic events. Most of the people reading this article work in what would be considered, in military terms, a “soft target.” (An unarmored or undefended target) Mumbai, Oklahoma City, 9/11, Katrina, and the Northridge earthquake share a common thread. The event itself and/or the magnitude of the event were unforeseen.

Following each event there were businesses left with questions. What now? What do we tell our employees? How do we contact our employees? Where and how are we going to conduct business? How do we address employee concerns about safety? Did we have adequate backup procedures in place? How will we pay our employees? What do we provide employees to assist them in overcoming trauma and grief issues? How do we provide adequate assurance to customers and vendors that our business continues to be viable? How will we address media inquiries?

These are not easy questions to answer. Disaster preparedness in the 21st century entails more than buying a First Aid kit at the local Costco. While I certainly hope that your organization never has to answer these questions, it is imperative to address these questions now. In an information age and a global economy, the companies that survive a disaster are those that planned ahead. The time to implement disaster preparedness protocols is now and not in the midst of crisis. HR professionals, this is your wake up call.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Individuals with legal concerns should seek the advice of an attorney that can provide advice design to address their unique circumstance.

2008-12-03T14:40:00.000-08:00

Don’t Circle the Wagons....

When tough economic times hit, it is easy to succumb to the tendency to cut every program that is not essential. Often these cost cutting measures target training, employment manual reviews/revisions and annual policy reviews. The justification for these measures is that money is tight and these things can wait. It is reminiscent of the person that stops changing the oil in their car because times are tough. You can do it but, eventually, you will pay the price either in the form of major repairs, lost vehicle longevity or both. The same holds true for your business. There may be short term benefits in cutting these programs, but in the long term you will spend more money than you saved.

What gets lost in this discussion is that policies and procedures, handbooks and training are the mechanisms that allow your company to communicate its expectations to its workforce. They also provide you with the foundation for defenses that can be asserted in the context of litigation. It is precisely at times like these, when business is down, that you need your workforce to work at its optimum level. Valuable human and financial resources do not need to be wasted responding to audits and inquiries from administrative agencies or defending lawsuits when proactive mechanism could have stopped these events from occurring.

So how do you do this when the money just isn’t coming in like it used to? Here are five things to consider:

1. Web based training.

Many law firms, including my firm, provide web training for employers that allow employees to log in and participate from any location. This type of training can be conducted live or via a prepared video presentation. This allows training to be conducted at times most convenient to the employee while minimizing or eliminating travel costs.

2. Consider policy reviews at departmental meetings.

In an ideal world, your lawyer would like to see you conduct periodic training on all aspects of your employment manual for management and non-management employees. If you have been diligent in training in the past and now the budget is tight, consider periodic reviews of policies by each department head. Make sure your department heads have a thorough understanding of the topic they will be discussing and provide them with a presenter’s package that includes relevant policies, frequently asked questions, and a PowerPoint presentation.

3. Hire a law firm to perform an annual review of policies and procedure.

Many law firms will offer a flat rate package for them to review your policies and procedures, including wage and hour practices. More often than not this will be offered at a reduced rate.

4. Consider using in-house or your company’s general counsel to provide training.

It’s always nice to bring in a well respected speaker to train to your workforce.
Let’s face it, in these difficult times that may not be an option. Instead, consider using someone from your in house counsel’s office or from the office of outside counsel. More often than not you will be surprised by the talent you have available that can offer training that fits within your budget.

5. Monitor government websites and relevant Blogs.

I never cease to be amazed by the sheer volume of information that is available on the web. Often the information contained on a reliable Blog can be the source of periodic internal newsletter updates. It is not a substitute for training, but sometimes, when the money just isn’t there it will have to do.

Finally, I would be like hear of some of the ways your company has modified your training and policy review processes in these difficult times. The more we can exchange ideas, the better off we all are.

Later,
Rod

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Individuals with legal concerns are encouraged to consult with an attorney who can provide them with advice tailored to their unique circumstance.

2008-11-18T13:54:00.000-08:00

IBM and Apple mix it up

I haven’t seen something take over the news like this since Microsoft and Google went after each other as a result of Google’s hiring of Kai-Fu Lee. (Click here to read about that case.) That case ultimately resulted in a settlement or, as lawyers tend to say, “It has been resolved to the satisfaction of the parties.”

So what caused this battle between IBM and Apple? Glad you asked. It all erupted when Apple hired Mark Papermaster from IBM. Papermaster, the IBM guru of its Power architecture and its X-64 based blade servers, signed a non-compete agreement in 2006. IBM alleges the non-compete was violated when he accepted a position at Apple that gave him oversight of the iPod and iPhone. It appears that IBM believes that Apple might try to use Papermaster to expand its share of the server market. Although Papermaster and Apple disputed this contention, the trial judge issued an injunction prohibiting Papermaster from accepting a position at Apple, but it did not come without a cost. Here, the judge ordered IBM to post a $3 million bond as a condition of issuing the injunction. The bond was designed to cover any financial losses that Papermaster may have suffered in the event that the judge determines that the injunction should not have issued.

Tactics and strategy.

In most cases of this nature, which don’t involve high profile individuals, the employee quits and joins a competitor without disclosing its intentions to their former employer. Once the employer learns of this, it immediately feels wronged and suspects the worst. More often than not a judge will agree because of the manner in which the employee left their former employer. It’s like Aunt Effie used to say, “If you got nothin’ to hide then why are you hidin’??”

Here Papermaster was up front about his intentions. He told his employer that he intended to leave for a position at Apple. IBM immediately met with him to offer a substantial pay increase to stay or, in the alternative, to offer him a year’s pay if he would agree to abide by IBM’s interpretation of the non-compete agreement. From a tactical standpoint, IBM’s response was a model of positioning. IBM anticipated that Papermaster might argue the non-compete would keep him from earning an income for a year given his unique skill set. By offering a year’s wages for compliance with the one year non-compete, IBM effectively nullified that argument.

Once it was clear that Papermaster would not accept IBM’s overtures, IBM had to decide where it was going to pick its fight. It had two choices; New York, where Papermaster worked ,or California, where Apple is headquartered. Obviously realizing that the non-compete would probably not be enforced in California, IBM immediately went to court in New York.

The Battle Continues....

Although IBM won the first round by getting the preliminary injunction, this fight is far from over. In a recent filing, Papermaster attacked the heart of the non-competition agreement. He argues that IBM’s non-compete is overly broad in three respects. First, it prohibits him from working for a part of Apple that is not competing with IBM, namely iPhone and iPod divison. Second, the agreement prohibits him from working for a competitor anywhere in the world. Third, the one year duration is too long since any trade secrets Papermaster possesses would lose value in a much shorter duration do to the ever changing nature of the technology world.

The Bottom Line:

How this will turn out no one knows. This is one of those cases that you don’t want to see resolved by the parties because the issues are so interesting. It is also a model of great litigation tactics by the parties. Here are my take-aways:

Employer take away:

1. Make sure your non-competes are vetted by an experienced employment lawyer. (I’ll have more tips on non-competes in a later post.)
2. If you don’t have a non-compete, you still may have protection under the Uniform Trade Secrets Act.
3. If you intend to enforce a non-compete, make sure you do so in such a manner that is fair and creates the perception of fairness.

Employee take away:

1. Transparency with your employer will go a long way. Remember, you not only have obligations under the non-compete, but, in many states, you have a duty of loyalty to your current employer.
2. In addition, depending on your position, you may have duties under the Uniform Trade Secrets Act.
3. If you think your employer won’t enforce the agreement, think again. Like Aunt Effie says, “Just because the armadilla is on the side of the road, don’t mean he’s been run over.”
4. Always consult an experienced employment law attorney. How you plan to leave can be more important than leaving.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Individuals that have legal problems, are encouraged to seek the advice of a lawyer who can address their particular legal concern.

2008-10-20T10:02:00.000-07:00

Repeated violation of non-compete lands man in jail

A Texas man who claims he loves to dance and claims dance is in his soul was jailed by a judge in Texas for repeatedly violating a non-compete agreement that prohibited him from operating a business within a defined geographical distance from his former employer. (To read the article click here.) Here, not only did this individual violate the original non-compete, but he also violated a court order issued as a result of enforcement of the non-compete. While dancing may be in this individual's soul, my recommendation is that he practice his passion in a different geographical area.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Individuals with legal problems should consult with an experienced attorney who can offer advice tailored to their unique legal circumstance.

2008-10-08T14:58:00.000-07:00

10 Tips on Defensible Documentation

I am often asked for tips on documentation practices that are “legally defensible.” Truthfully, the recipe for legally defensible documentation begins with common sense and ends with a consideration of who your audience will ultimately be. Unfortunately, I can’t help you with common sense. You either have it or you don’t. There is no middle ground. As far as your audience, potentially it could be an EEOC investigator or a jury. That audience will look for a degree of clarity in your documentation that you might not usually employ. As a result here are my 10 tips on defensible documentation:

1. Write it down...all of it.

Your credibility, and that of your employer, is at issue. Nothing undermines the credibility of an individual more than information that was created at a much later date or contains material omissions. You may think that a particular matter is so unique or outrageous that you will never forget it, but you need to write down all pertinent information. Although you may not have had any type of bad motive, at a later date, when your “memory” is examined in the harsh light of a deposition, there will be a suspicion that gaps in your documentation are due to an effort to cover up information that will help an employee. It could also be the difference between your company’s ability to get a case dismissed before trial or having to go through the expense of trial.

2. Stick to the facts...just the facts.

Since your documents will in all likelihood become evidence in a lawsuit. You will have to justify your statements. If you guess, exaggerate, offer personal opinions or see this as an opportunity to work on your creative writing skills, find a different profession. A good employment lawyer will take your documentation apart.

3. Strictly Business.

Although you may have personal opinions regarding a company policy, a manager, a complainant’s work environment, or the complainant. Your personal opinions, especially if they do not have a factual basis, will impair your credibility and give rise to the claim that you were not objective.

4. Use Company Procedures for Support.

In the event you are handling an issue that is covered by a particular policy or procedure, make reference to it. By doing so, you create the impression that you are a being consistent in following internal protocols. In addition, if there is a protocol that should be followed, follow it or get rid of the protocol. By following and relying on policies and procedures, you create the impression of credibility and fairness. I once tried a case in which the thoroughness of a sexual harassment investigation was at issue. The corporate Human Resources Director was called. He explained how he conducted the investigation. He was cross examined using a five page investigation policy that he drafted. The policy was not followed. After the jury returned a verdict for my client, one of jurors commented that he could not believe that a large company would have such a detailed policy and not follow it.

5. Confirm access to policies and procedures.

If certain company policies are involved, provide them to the involved parties and make note of their receipt. This will demonstrate your familiarity with the policies and that you have taken steps to communicate your expectations to those involved. By doing this, you will lend an air of credibility to your actions.

6. Tell us why the document was created and when

Sometimes the purpose of the document is not apparent. In those cases explain why the document is being kept. If the document relates to a meeting reflect when and where the meeting occurred as well as who was present. If the document was given to someone, have them acknowledge receipt.

7. Warning: Performance and Discipline Issues

Clarity is the hallmark of effective performance and discipline documentation. Your performance and discipline documentation should be objective and convey an air of fairness. More than any other time it is imperative to put your emotions to the side. If coaching or any other assistance was given before a negative performance rating was given or if the employee was given chances to correct their conduct before discipline was imposed, make sure that is reflected in your documentation. Leave room on your document for the signatures and employee comments. Train your supervisors and managers to get employee signatures and in the event an employee refuses to sign, have managers make an appropriate notation.

8. I never promised you a rose garden....

Don’t make promises you can not keep. If you tell an employee that you will talk to someone just to stop them from complaining and then you don’t do it, your credibility will become an issue. If your are handling a matter involving harassment or discrimination, then include language from your handbook about your company’s commitment to provide a work environment free from discrimination. In addition, all documents disseminated to the employees should mention that your company is an “at will” employer.

9. Be a disciplined historian.

With the hectic schedules that HR professionals have, sometimes it is difficult to document everything. Take the time. Those few minutes spent documenting a file can be the difference between winning or losing a lawsuit. Your notes don’t have to be treatises, but make sure they contain the date and time and reason they were prepared. Consider this. Employee sues the company for a discriminatory discharge. Employee testifies, “Sure, I made some mistakes but they were infrequent and certainly not major omissions. Look at my performance reviews. They weren’t stellar but I always received a satisfactory rating.” Now it’s your turn to get up on the witness stand. Do you want to be the witness that testifies, “Gee, this person was consistently failing to perform his work but as to the specific instances, I wish I could remember but its been three years....I can tell you one thing, I was glad when we finally fired this employee!” Perhaps a more compelling line of testimony would be, “Yes, this person had performance difficulties. As I review my notes, I met with the employee and his immediate supervisor to discuss ways to coach him to succeed. Those meeting occurred on the following dates........”

10. Remember the Goose and the Gander

My mother used to say, “What’s good for the goose is good for the gander.” In other words, be fair and consistent. This is good advice for HR professionals. More often than not, it is the most vocal and disruptive employee that causes the employer to document. If you are going to document performance deficiencies, make sure you do it for all employees. Otherwise you run the risk of being viewed as having bias or an improper motive in the enforcement of policies.

I hope this gives you some food for thought.

Later,

Rod

Nothing in this Blog should be considered to be legal advice or to form an attorney client relationship. Individuals with legal concerns are encouraged to seek the advice of legal counsel who can tailor advice to the individual's specific legal needs.

2008-09-29T14:36:00.000-07:00

Common Mistakes in Documentation and Recordkeeping

Your company’s record keeping and document retention practices will often be the difference between winning and losing a lawsuit. Over the years I have seen a variety of areas where employers and human resources professionals get themselves in trouble. One common theme has been a failure to have reliable and accurate documentation. In this Blog post and, and the next we will examine how documentation or the failure to document can create problems for employers and human resources professionals.

Email

Email has become an acceptable form of business communication. Due to the manner with which we treat email, email often becomes a source of evidence used by an employee in a suit against their employer. With that being said, here are my email rules.

1. Treat your emails with the formality you would if drafting a letter.

Formality begins with the salutation. Avoid salutations like “Hi Joe” or “Joe” or no salutation at all. My preference is to have the salutation show respect, such as “Dear Joe” or “Dear Mr. Smith.” Formality includes with the way in which the email is closed. Consider closing the email with the same way you would close a business letter.

Your emails should reflect the seriousness of the topic being discussed. Do not assume that the facts will be understood by a third party reading the email two or three years later. Be clear, concise, and always convey the impression that you are concerned about the issues raised.

Finally, if you would not put it in a letter don’t put it in an email . If you would include it in a letter consider putting it in your email.

2. Avoid email abbreviations and emoticons.

Your email will be evidence in a lawsuit brought against your company. Individuals reading your email at a later date may not understand the use or purpose of email abbreviations such as LOL or BTW. Remember your email, and any documentation, is designed to confirm facts and should create the perception that you take the matter seriously. The reader should be able to understand your email without having to resort to a glossary of email abbreviations.

I have never been able to understand the use of emoticons, such as smiley faces and frowns, in a business email. While you may think that emoticons somehow convey that you care and understand, the reality is that they create the impression that you do not take the matter seriously. Save the cute stuff for the private emails you send from home to friends and family.

3. Remember we weren’t there and there is no “you had to be there defense.”

Unfortunately, when email is written it is more often than not the product of an ongoing conversation between individuals that may span days or even weeks. As a result, these communications tend to take on a more relaxed tone that do not reflect the spirit in which the email was sent. As a result, months or years later, when the email is read by someone that was not a party to a conversation, sarcastic comments appear neutral and a humorous observations appear rude and insensitive. Email communications, are one of those “you had to been there” dialogues. Unfortunately, the judge, jury and opposing counsel weren’t there and are taking the statements made in the email literally.

4. Don’t feel the pressure to answer right away.

One of the myths of a world with instant messaging, Blackberrys, and email is that an immediate response is required. That is not always true. More often than not, problems can be avoided if you wait before responding to an email. Instead of responding immediately, draft a response in your word processing program, print it, and read it. Once you are satisfied that your response is complete and reasoned, paste the response into the email and send it. A considered response is always better than a knee jerk reaction. If you feel the need to give an immediate response, consider sending an email acknowledging receipt of the email and promising a response the following business day.

5. Keep a copy of your email.

Yes, I know it is cumbersome to cc the file and to tell Outlook to file the email. Do it. You don’t want to rely on it being in your Sent file folder.

6. Don’t be afraid to attach documents.

If the email concerns a company policy, attach a copy of the policy to your email and require the recipient to acknowledge receipt. By doing this, you have provided a copy of the policy and you have a record that the employee received the policy. Hopefully, this will thwart any effort to raise the “but I didn’t know” defense.

7. Keep it strictly business.

Do not use your email to comment on company policies or other employees. Comments, such as “that’s just how he is,” may be viewed at a later date as a lack of concern about issues that were raised by an employee. Similarly, statements such as “I understand what you are going through” can be interpreted as being insincere or an acknowledgment that a larger problem exists.

Keep in mind, your job is not to critique company policy but to insure the policies are enforced. Telling an individual that you feel a policy is unfair or expressing frustration with the manner in which matters are being handled can and will be used against you.

8. Avoid promises you can’t keep.

When promises are made in an email, they are viewed as being etched in granite. While you may think that you will be able to get back to the person tomorrow you don’t know what surprises the next day may hold. If you make a promise to get back or accomplish a task, factor in possible interruptions. If you have made a promise that you cannot meet, don’t ignore the promise. Send an email advising the person that something has come up and give a realistic time that you will get back.

Later,

Rod

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Readers with legal problems are strongly encouraged to seek legal advice from an attorney who can tailor her advice to your specific legal needs.

2008-09-23T20:30:00.000-07:00

Scolari's settles sex harassment lawsuit

Scolari's is a food and drug store with 19 outlets in northern California and Nevada. The company just settled sexual harassment claims made a group of women for $425,000.00. According to the Equal Employment Opportunity Commission (EEOC), "Some Scolari's managers verbally harassed the women, touched them inappropriately, "propositioned them, made lewd comments and passed around naked photos of themselves, among other acts." This settlement was for a group of 19 women. These allegations if true could have resulted in a significantly higher award in Washington. Not being familiar with the case, it is difficult to comment on the adequacy of this settlement. To read more about the case, click here.

Nothing in this Blog should be considered legal advice or form an attorney client relationship. Readers with legal problems are encouraged to seek the advice of legal counsel who can tailor their advice to the individual's unique legal circumstance.

2008-09-04T13:49:00.000-07:00

Keystone Dental settles UTSA claim for $2 million

If you are not familiar with the Uniform Trade Secrets Act (UTSA) and you are in business, perhaps, now is the time. UTSA claims are on the rise and the damages that can be paid out on these claims tend to be huge. They can include double damages, attorney’s fees and an injunction prohibiting the conduct at issue.

Here, Nobel Biocare sued Keystone Dental alleging a systematic targeting and hiring of Nobel's sales and marketing employees. Nobel also alleged that Keystone aided and abetted employees to violate confidentiality and non compete agreements. According to Nobel Biocare, these employees were using trade secrets to develop competitive products and induce Nobel’s customers to switch to Keystone Dental. To read more, click here.

The Bottom Line:

If you are approached by an employee, or prospective employee, who wants to share trade secrets, confidential data or proprietary information belonging to a competitor, stop right there and call your lawyer. Don't think that just because there may not be a non-compete, confidentiality or non-solicitation agreement that you are on easy street. The UTSA could be used by the your competitor even though there isn't a written prohibition against disclosure. This is one of those instances, where sound judgement means to let your lawyer guide you through this minefield. It is time and money well spent.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Readers with legal problems are encouraged to seek the advice of any attorney who can address their particular legal circumstance.

2008-09-01T11:35:00.000-07:00

Sizzler gets burned for $300,000

Sizzler USA just settled a sexual harassment lawsuit in which a former employee alleged she was the subject of sexual harassment in the form of unwelcome touching, unwelcome comments and physical threats. In addition to unwelcome comments about her body, the plaintiff, Patricia Huizache, was told that Mexican woman are “stupid and only good for sex.” (To read more about this suit, click here). According to an attorney for the EEOC this was an egregious case of harassment and there were “real problems with the investigation of the complaint and preventing it from happening.”

The Bottom Line:

This appears to be the classic case of coworker harassment. It is much easier for employers to defend themselves against claims of coworker harassment than it is when claims of harassment are lodged against supervisors and management. The key is a prompt and thorough investigation that is not only fair but gives the appearance of fairness. To achieve this the affected parties must understand the manner in which the investigation will take place. Once it has been determined that the claims made are valid, it is critical for the employer to take meaningful action that will stop the harassment.

In addition consideration must be given to protecting the reporting party from retaliation following their report of harassment. More often than not employers properly handle the report of harassment only to find they failed to protect the reporting party from retaliation once the investigation is concluded. To avoid this, I recommend that you instruct the reporting party on your policy prohibiting retaliation, provide them with a copy of your policy prohibiting retaliation and follow up with them at least twice after the investigation is concluded.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. If you have an employment law matter, you are encourgaged to seek the advise of seasoned employment law counsel who can offer you advice tailored to your legal circumstance.

2008-08-21T21:16:00.000-07:00

When will they learn?

I have been doing this a long time. Every once in a while, in a moment of idealism,I start to believe that maybe, just maybe, every employer in the country is starting to get a clue when it comes to issues of sexual harassment. Then I read an article like this one posted at Firehouse.com entitled "New Mexico Firefighter: Station was Like a Sex Brothel" (click here to read article). Perhaps what is most disconcerting about this article is that the victim's supervisors acknowledged they "heard rumors about porn and alleged sexual harassment" of the victim but took no action. Let me be clear on this. I know it sounds like a no-brainer, but where there is smoke there is usually fire.(pun intended) One would think that management would at least question the alleged victim about these rumors rather than waiting for her to report and hire a lawyer.

Let's just give some thought to what could have occurred if the employer took the time to ask the alleged victim about rumors that came to their attention.

The victim could have confirmed that she was being sexually harassed. In that case the employer would have conducted an investigation and learned all the facts. By being proactive the employer could have, through its action, confirmed to the alleged victim that it took matters of harassment and discrimination seriously and, quite possibly, avoided lawyer involvement and a lawsuit. An early investigation may also have led to the discovery of defenses to her claim and, in a worst case scenario, allowed the employer to minimize its financial exposure and negative publicity.

What if the employer contacted the alleged victim and she denied being sexually harassed? Well, hopefully the human resources representative would have kept a record of the discussion and provided the alleged victim with a copy of their harassment and discrimination policy, as well as, their reporting policy. Then if a claim arose at a later date, the following may have happened in the context of a deposition:

Attorney: You were contacted by Mr. X, the human resources representative, on January 14, 2006, is that right?

Alleged Victim: Yes.

Attorney: At that time the HR person told you that there was a concern that you may have been the victim of sexual harassment or inappropriate conduct, is that right?

Alleged Victim: Yes

Attorney: In response you told the HR person that you were not being sexually harassed, is that right?

Alleged Victim: Yes.

Attorney: You also told him that you were not exposed to any conduct in the workplace that was inappropriate, isn't that correct?

Alleged Victim: Yes.

Attorney: At the conclusion of the meeting you were provided copies of the company harassment and discrimination policy and the policy on reporting harassment and discrimination, right?

Alleged Victim: Yes

Attorney: You signed this receipt acknowledging that these policies were given to you?

Alleged Victim: Yes.

Attorney: You were also told that you could always contact the HR representative, or anyone, in the HR office, if you felt you were the victim of sexual harassment, right?

Alleged Victim: I don't remember....maybe.

Attorney: So if the HR representative were to testify he was always available if you wanted to talk, you would not disagree with that.

Alleged Victim: I guess not.

Okay, before I get emails from cynics, let's take that question head on. What if the person denied being contacted by the HR person? Well, you still have the HR person's testimony, their contemporaneous record of the interview and the document acknowledging receipt of company policies. That still puts the company in a better position than it would be if it ignored the problem.

I just have one question for employers like this fire department. To quote Dr. Phil, "How's that workin' for ya'?"

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. In the event you have a legal concern, you should immediately contact an employment law attorney for an evaluation of your claim and for legal advice tailored to the facts of your case.

2008-08-18T12:46:00.000-07:00

Facebook comment leads to settlement

Although I don’t make it a habit of discussing cases that don’t involve claims under state or federal law, I came across an article while reading a London newspaper. The case was of interest because it seemed to be the perfect storm of what not to do.

Sarah Whitefoot, a model and former television personality, was hired to manage an upscale beauty salon that catered to the wives of wealthy footballers(soccer players). As soon as Sarah, started her job she began to see the signs of trouble. Her boss and owner:

1. Repeatedly invited her out for drinks via text message;
2. Bought her a glass sex toy to celebrate her first week on the job;
3. Constantly referred to her as “babe” and included kissing symbols in text messages;
4. Told her in one of her text messages, “If u look after me I’ll look after u”;
5. Took a mobile phone picture of her and sent it to his friends with the message, “Fancy a full massage?”; and
6. Described her on his Facebook site as a “nympho.”

Ms. Whitefoot, understandably, was upset by her bosses conduct and showed the text messages to his fiance, who, in turn, dumped him. The boss then fired Sarah by text message.

Sarah sued her boss and settled out of court for a sum in excess of “$10,000 pounds”( about $18,600.)

The Bottom Line:

This case not only sounds like a hostile work environment sexual harassment claim, but also sounds like a quid pro quo claim (“If u look after me I’ll look after u”). Since I don’t know the first thing about the laws in the UK, I will not comment of the settlement amount, other than to say, in Washington, this case could have easily resulted in a six figure settlement.

Text messaging and social networking sites are becoming increasingly problematic for employers and employees. Employees should be reminded through periodic training and through your handbook that text messaging should be limited to business related communication. In addition, your company should have a blogging and social networking site policy that is disseminated to your entire workforce.

Think of ways to educate your workforce. While we are all familiar with training and handbooks, think outside the box. Consider having your HR department sending out a broadcast email once a month that highlights one handbook policy and explains what is meant by that policy. My preference is to require the employee to acknowledge receipt of the email for record-keeping purposes. Another approach is to have your HR department, perhaps with the help of your legal counsel, highlight a court decision in your company newsletter. Discuss how your company handles claims of that nature, what policies are involved, and the resources available to employees internally.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. If you have an employment law problem, please seek the advice of an experienced employment law attorney that can tailor their advice to your legal circumstance.

2008-08-03T21:27:00.000-07:00

7th Circuit: Joint Employer Doctrine in context of the FMLA

Employer's that employ 50 or more employees in a 75 mile radius ( as the car drives not as the crow flies) must comply with the Family Medical Leave Act (FMLA). In enacting the FMLA, Congress understood that small employers are always able to shoulder the financial burdens imposed by FMLA compliance. Congress charged the Department of Labor (DOL) to create regulations that assure the purposes behind the FMLA are carried out. One of many regulations promulgated by the DOL is the joint employer doctrine. The joint employer doctrine allows an employee add the employees of two or more employers to achieve the 50 person threshold required for FMLA compliance. According to the DOL, a joint employment relationship may exist where

(a) Where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under FMLA. Joint employers may be separate and distinct entities with separate owners, managers and facilities. Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:
(1) Where there is an arrangement between employers to share an employee’s services or to
interchange employees;
(2) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or,
(3) Where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.

Denise Moldenhauer's Claim:

Denise Moldenhauer worked for the Tazewell-Pekin Consolidated Communications Center as a dispatcher. She missed a considerable amount of time from work due to chronic pancreatitis. Eventually, she was terminated. After she was terminated, she sued alleging her termination was in retaliation for her exercising rights guaranteed her under the FMLA. Since the Communications Center, a non-profit agency did not employ 50 employees, she also sued the cities of Tazewell and Pekin alleging they were joint employers. In support of her argument that she was joint employer of both cities and the communication center she pointed to the following:

1. The Center rented space from the City of Pekin and, to enter the building, had to wear City of Pekin employee badges;

2. The Center employees were considered employees of the City of Pekin for workers compensation, health insurance and participation in a municipal employees retirement plan;

3. Center employees are listed as employees on W-2 forms,

4. Center employees were required to comply with a sexual harassment policy that named an employee of the City of Pekin as the point of contact.

The cities defended by arguing that the Center was an independent agency and they exercised no control over the terms and conditions of the employment.

The court, after analyzing decisions from other appellate courts, held that the cities and the Center were not joint employers for purposes of the FMLA, because they did not exercise control over the working conditions of the Ms. Moldenhauer. There was no evidence the cities were involved in activities typically associated with the degree of control an employer exercises over an employee such as sets wages, determining hours worked or the number of individuals working on a shift. As a result, the court ruled in favor of the Center and the two cities.

The Bottom Line:

Any time an employer decides to share employees with another employer, there a pitfalls to consider. One of those is where the sharing arrangement can create liability under workplace and other laws. Any decision to enter into a joint employer relationship should only be made after consulting with legal counsel.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. If you have a legal problem, you are encouraged to seek the advice of an attorney who can provide you with advice tailored to your legal circumstance.

2008-07-10T22:27:00.000-07:00

New WISHA poster available

The Washington Department of Labor and Industries has announced that it has a new mandatory poster that must be posted by all employers in Washington State. To get the poster, click here. If you are not sure you have all Washington State required posters click here.

To get all required federal posters, click here.

2008-06-19T22:06:00.000-07:00

New Case Protects Privacy of Text Messages

The Ninth Circuit Court of Appeals, in a case entitled Quon v. Arch Wireless, held that text messages stored on the server of a cellular provider cannot be disclosed to an employer subscriber without the consent of the employee that is using the text messaging device.

To employers, this means, that unless you store text messages and instant messages on your company owned server, the employee will be able to assert they are entitled to privacy rights to the content of those text messages. Based on the tenor of this case, employers should consider altering their Internet usage, email, text and voice communications policies to provide that an employee, by using any company owned property or company provided service, consents to a review of any content of any communication including content that is stored by third party vendors. Since consent is being obtained, it would be of benefit to have the employee sign the consent.

To those of my readers that work for governmental agencies, the Quon case also creates a 4th Amendment protection in the content of text messages held on the servers of third party providers. To read this case, click here.

Nothing in this Blog should be consider legal advice or to form an attorney client relationship. In the event you have a legal matter, you are urged to contact an attorney who can address your particular legal matter.

2008-06-19T09:54:00.000-07:00

No Match Letter does not give right to fire.

Aramark employs approximately 170,000 people in the United States. In 2003, Aramark received notice from the Social Security Administration (SSA) that 3,300 of its employees did not provide social security numbers that matched those in the SSA database. These type of notices are typically referred to as "no match letters." Forty eight (48) of those employees worked at the Staples' Center sports arena in Los Angeles.

On April 15 and 16 of 2003, Aramark sent a letter to the 48 Staples Center Aramark employees advising them to obtain either a new social security card or to provide verification that an application for a new social security card had been submitted to the SSA. These employees were given 3 days from the date of the letter to accomplish this task. Practically, if one takes into account that it would take one day for the letter to be mailed, the employees had two days or less to comply. Fifteen (15) employees were able to timely get the information requested. Thirty-three (33) employees did not and were fired.

The fired employees took this matter to a union arbitration and won. Aramark appealed and sought intervention by a federal court. The trial court found in Aramark's favor and the union appealed to the 9th Circuit Court of Appeals.

Aramark defended its actions by arguing that the no match letters provided constructive knowledge that the 33 fired employees were illegal workers. Aramark contended it had to fire the employees since, under the Immigration Reform and Control Act of 1986 (IRCA), it would be subject to civil and criminal penalties if had actual or constructive knowledge that the employees had undocumented status. According to Aramark, the receipt of a no-match letter constituted constructive knowledge of the worker's illegal status. As a result, Aramark argued the terminations were justified.

The 9th Circuit Court of Appeals disagreed. It felt the no match letters, by themselves, did not provide constructive notice of undocumented status. In so holding, the court observed that the SSA's stated purpose in mailing no match letters is to alert individuals that social security contributions are not being properly credited due to mismatched records. The SSA also advises employers that they are not to infer that a no match letter is indicative of undocumented status nor are employers to take adverse action merely due to the receipt of a no match letter. Based on this, the court felt that a no match letter was not the type of positive information from the government that provides constructive knowledge to an employer.

From the opinion, it appears that the court was most concerned by the relatively short period of time within which employees had to act (3 days from date of letter). While Aramark permitted the terminated employees to reapply for employment once they obtained proper documentation, the court felt it was unfair to give employees less than 3 days to correct a problem that could take as long as 90 days to resolve. The court expressed concern that, under similar circumstances, an employer could use the receipt of a no match letter to justify a discriminatory termination under the pretext of compliance with IRCA. To bolster its argument that the employees were not give sufficient time to correct the no match, the could observed that under regulations adopted after this case was filed, employers are provided a safe harbor ( a window of immunity from prosecution, under IRCA, based on constructive knowledge) if employees, are given 90 days, after the employer receives a no match letter, to provide necessary verification. Under these regulations if a no match cannot be corrected within that time frame, the employer can qualify for a safe harbor if it submits an I-9 that relies on information other than a social security number to verify the employee's status.

The Bottom Line:

It always comes down to fairness and perceived fairness. While Aramark may have felt its actions were justified by a legitimate concern that criminal and civil penalities for IRCA violations could be imposed, the actions taken were too drastic and did not recognize institutional barriers that could make impossible for some employees to resolve issues created by the no match letters. The actions taken by this employer failed to be fair and failed to create the appearance of fairness.

Nothing in this Blog should be considered to be legal advice or to form an attorney client relationship. The matters discussed in this Blog are general in nature and are not intended to be relied upon by individuals faced with a legal problem. Nothing can substitute for the legal advice of a seasoned legal professional, who can tailor her/his advise to your particular legal cirumstance.

2008-06-19T09:46:00.000-07:00

Wednesday's Excuse

on Thursday

Two words that automatically invoke sympathy on the part of anyone:

Root Canal.

2008-06-10T22:21:00.000-07:00

11 Things to Think About Before You Fire

Firing an employee is difficult. Many times employers realize that an employee has to be let go, but put off the decision. Some explore other avenues to correct performance or behavior deficits, while others ignore the problem until it reaches a critical stage.

The decision to discharge an employee should be made only after careful reflection. Yes, I understand there are circumstances where the misconduct is so significant that immediate termination is warranted. Those instances tend to be the exception rather than the rule. In most cases, the employer is aware that things are just not working out, but is either distracted with more pressing issues or just does not want to address the problem.

The purpose of this Blog post is to review some areas for consideration before the decision to discharge is made. Ultimately you will have to weigh these considerations and make the call.

1. Have all the pertinent facts been recorded?

Before making a discharge decision, employers should make sure that all facts are recorded accurately. That means an assessment of all documents in the employee’s personnel file and all notes kept by management concerning the employee. Assemble all performance evaluations, attendance and payroll records, customer communications, calendars, discipline and warning records, any records of unsatisfactory performance that have been discussed with the employee and any documents that may be lost during the normal cycle of business.

Once these records are compiled, take the time to read them. All of them. Evaluate them for thoroughness, fairness, and compliance with any published internal processes. Oftentimes, particularly in cases of underachieving employees, a review of the records will reveal that performance evaluations are neutral, there are no records of unsatisfactory performance that were discussed with the employee, and there are no discipline records. This may cause you to reconsider the decision to terminate or, at the very least, assure that, in the future, your management team is more disciplined in its record keeping.

2. Is the decision being made on facts, not inference, suspicion or emotion?

Over the years, I have consulted with numerous employers that were sued as a result of terminating an employee. As I reflect back on these cases, the majority resulted in litigation because the employer allowed rumor or emotion to dictate rather than the facts. While it may feel cathartic to tell an employee, “You’re fired! No, you are double fired, and so are your wife, your children, your neighbors, your pastor, and your grandmother!”, it rarely leads to a productive dialogue. Decisions to terminate that are not grounded in fact, rarely involve a clean parting of ways, and, more often than not, result in attorney or administrative agency involvement.

3. Is the decision maker or decision-making group aware of all critical facts?

If your company is the subject of a lawsuit arising out of a termination, rest assured that a competent attorney will have all the facts at their disposal that relate to their client and the manner in which others within the company have been treated. The failure to communicate critical facts to decision makers creates the perception of bias, unfair processes, and the suspicion that the action taken was not based on legitimate business criteria.

4. Have other options been considered and rejected?

Are there other options that have been used with other employees under similar circumstances? If so, why are they not being used now? Consider whether other options, such as a transfer, demotion or suspension, may be just as effective as a termination. In most cases, termination does not conclude the process. A new employee will have to be hired, trained, and learn your institutional processes. All of this involves the allocation of time, financial, and human resources.

5. Has anyone taken the time to communicate with the employee?

In an age of email, instant messaging, text messaging, and time pressures, face to face communication has become a lost art. Some of the questions that should be asked are:

a. Does the employee fully understand the job requirements and behavior standards?

b. Have you explained where the employee failed to meet job performance or behavior standards?

c. Has the employee received at least one warning of possible dismissal and are you sure the employee understood the warning? Was a record kept of the warning?

6. Has the employee been given sufficient time and opportunity to correct any performance and behavior deficits?

An employee that has been placed on a performance improvement plan should be given the opportunity to perform in accordance with the goals contained in the plan. That means that the goals must be realistic and the employee should have access to internal resources and coaching so they have every opportunity to succeed. Generally speaking, an employee that has been given a fair opportunity to correct their performance and has failed, will understand that discharge is a necessary step.

7. Has the employee’s story been heard?

It is easy to make a decision if all your information comes from one source. That is why it is important to hear the employee’s story and consider the facts from their point of view. Consider whether the employee has personal difficulties, special situations, or any other mitigating factors. By taking this approach, not only will you have a fair process but one that appears fair. In addition, this can help identify any areas where you may have a legal duty to act.

Since terminations are rarely events that are devoid of emotion, it is my preference to ask the employee to provide a written report of events. This assures you have a written record of what you were told and avoids, or at leasts minimizes, future disputes over what you were told.

8. Have you thought about the goose and the gander?

One of my mother’s favorite phrases was, “What is good for the goose, is good for the gander.” Of course, as a young child I had no clue what a gander was but I knew that this meant that she would be fair in every respect. Nevertheless, this old saying is one that employers should keep in the back of their mind when making a termination decision. I can tell you, from having represented employees, that one of the first things an experienced employment lawyer will examine is the manner is which your company has handled similar circumstances. If it turns out that a similarly situated male employee received a suspension while a female employee was terminated for the same conduct, your company may find itself on the receiving end of a gender discrimination lawsuit. Consistency in the application of policies, processes and discipline is a vital component to any termination decision.

9. Are there issues of discrimination or unfair treatment that may need to be addressed before a final decision is made?

Unless you are faced with issues of serious misconduct, make sure that any reports of discrimination, unfair treatment or retaliation have been thoroughly investigated and, preferably, concluded, before going forward with a discharge. On occasion, I have seen employers decide to terminate an employee while there is a pending complaint of harassment or discrimination. Their reasoning has been that the employee is an “at will” employee and, thus, can be terminated at any time and for any reason. While that may be true, courts will look to the temporal relationship between a decision to terminate and a report of harassment or discrimination. The closer in time these two events are, the more likely a judge or jury will conclude that your actions were the product of illegal retaliation rather than a desire to part ways with someone that did not perform adequately.

10. Have you planned how the dismissal will be communicated to the employee?

Once you have decided to part ways with an employee, you will need to consider when to communicate the decision, where to communicate the decision, who will deliver the news, what the employee will be told, how their employment will be concluded and to define the parameters of the exit interview.

a. When and where

Give some thought to timing and privacy. Once an employee is terminated, they should not have to return to work, nor should they have to suffer the embarrassment of having to pack their personal belongings in the presence of their coworkers. A better approach is to select a time and location that will eliminate or minimize the employee’s personal interaction with coworkers. Complete the process, allow the employee to leave, and have their personal belongings delivered via a delivery service.

b. Who

Select someone who is respected and is considered detail oriented so you can be assured that all necessary items will be addressed.

c. What.

It would be nice if a termination could be as simple as a quick, “You’re fired.” While that may work for a mom and pop business, that approach will only create difficulties for larger employers. You should be able to articulate the reason for termination, discuss wage and benefit information, advise when the employee will receive their final paycheck, when they will be paid for any accrued but unused personal time off, have benefits forms available, obtain contact information, arrange for the return of company property in their possession, be prepared to discuss any post employment restrictions, such as non-compete agreements and confidentiality agreements, obtain passwords, and conduct an exit interview. In the event the employee is unable or unwilling to complete an exit interview, make an appropriate notation in their file.

Finally, avoid meaningless statements such as, “I understand how you must feel.” No you don’t and you will never understand how this employee feels. Statements of this nature should be avoided, since they only engender ill feelings on the part of the departing employee.

11. Would a jury-six months later-conclude that the treatment accorded the discharged employee was unquestionably fair?

If, after review of these eleven questions, you continue to believe discharge is the correct decision then proceed with the discharge.

2008-06-04T15:28:00.000-07:00

Employer Alert

Washington Employers should be mindful of the following laws that are going into effect.

June 12, 2008

Leave for Military Spouses:

This law applies to all employers, regardless of size and allows 15 days of leave to the spouse of individuals that are on leave from military deployment or before and up to military deployment. To qualify for this leave, an employee must work a minimum of 20 hours per week and provide the employer with notice of their intention to take leave within 5 days of receiving official notice that the employee’s spouse will be on leave or has been called to active duty. For more information on this law, click the following link to access the Department of Labor and Industries website: http://www.lni.wa.gov/WorkplaceRights/files/FamilyLeave/2008-04-01LeaveForMilitarySpouses.pdf

July 1, 2008

Mandatory hands free cell phones:

All drivers in Washington will have to use a hands-free cell phone while driving. Practically, this is a good time for you to adopt a new cell phone policy that addresses text messaging and use of cell phones. For companies that provide cell phones to employees, consider purchasing hands-free devices for use with existing cell phones.

Employers should consider adopting handbook policies that address the issues raised by these laws.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The observations made in this Blog are general in nature and should not be used as a substitute for legal advice that is tailored to your particular circumstance.

2008-05-29T13:45:00.000-07:00

Wednesday Excuse on a Thursday

I don't know about you but 4 day workweeks throw my schedule out of whack. I love the 3 day weekend that comes along with it. Unfortunately, when I arrive at work on Tuesday, my brain says Monday. So even though its Thursday, I'm feeling Wednesday. That's my excuse and I'm sticking with it.

2008-05-21T22:20:00.000-07:00

Wednesday's Excuse

Last week, I was trying to find a good excuse while at the Mid-Town Station Coffee House and Wine Bar in Sumner. The owner promised that she would have a good excuse for me this week. So here it is:

I couldn't make it in because I was eating caramel cheesecake.

Hey, I don't make the excuses, I just report them.

2008-05-20T14:08:00.000-07:00

More thoughts on Telecommuting

As gas prices continue to spiral upward, telecommuting is an excellent way for a company to lessen the economic impact on employees and to be viewed as a good corporate neighbor by decreasing the carbon footprint of your workforce and traffic congestion.

On a personal note, I could write for days about the benefits of a decreased commute or not having a commute at all. A little over 6 months ago we moved our office. At the time my commute was what I would consider in the average range here in the Puget Sound, about an hour to an hour and fifteen minutes each way. Now I am about 6 miles from home which takes about 10 to 15 minutes, depending on the time of day. What prompted the move. Many things. First, I was spending about a work week commuting each month. Second, technology has reached a stage where it is no longer necessary for me to be in close physical proximity to my clients. With web conferencing, Blackberrys, and email, I can be just as accessible to clients as I was before. With the exception of depositions, my interface with employers was typically at their business location and with employees once in my office for the initial meeting. Traffic in the Puget Sound had already forced us to be more creative and efficient in manner in which we interacted with clients. Third, I am blessed to have some great clients. When I shared my decision with them, they completely endorsed the move. Nothing is without its hiccups. After I made the decision, I was faced with possibly losing one staff person who has been with me for almost 10 years. That was unacceptable. Since I am of the mind that nothing is more valuable that a loyal and hardworking employee, I chose to explore telecommuting with this employee. It has worked wonderfully. Now this employee works remotely and comes to our office one day a week. Sure there are times when I need that person here more than one day, but I make sure it is the exception rather than the rule.

I wish I could say that my decision to move my office was prompted by my incredible ability to forecast future events such as gas prices and a general economic downturn. It wasn’t. These are the things your employees are facing today. The other day, while driving to the office, I was listening to a local radio station. The DJ asked listeners what changes they made to account for the recent increases in gas prices. I was surprised to hear a number of callers state “I quit my job and found one closer to home.” It would be a shame to lose a valued employee just because you did not take the time to think outside the box.

In this post, I will address some of the things that should be considered when you decide to permit telecommuting.

1. Telecommuting is not a reward.

Some positions will lend themselves favorably to telecommuting. Others will not. Additionally, you have a business to run. That means you probably can’t have all your employees out of the office at the same time. As a consequence, you will need to determine which positions qualify for telecommuting and the criteria to be used to select those who will be permitted to telecommute. In plain english that means that if a particular job will permit telecommuting, then all employees, who meet the criteria, should be eligible to participate in the program that option.

2. Have you given consideration to the privacy rights of the employee?

Often employers forget that when an employee telecommutes they are working from their home. As with any position, there may be occasions when you will want to have direct interface with the employee or view their work area to assure they are being as efficient as possible and are not engaged in actions that could compromise confidential information. You should give consideration to how this will be handled.

Some employers address this by creating policies that identify when and under what circumstances, they will perform a home visit. I have several friends that telecommute and I am sure there are occasions when they are working on their laptop wearing very relaxed attire.

Also, if there have been certain problems in the past, such as a sexual harassment report made by an employee against their supervisor, it is not advisable to have that person conduct the home visit. Use common sense and be mindful of common courtesy.

2. Remember wage and hour laws apply?

I have a friend who is always looking for a 2-fer. I will share one of Rod’s Rules with you. “There are no 2-fers in life and there certainly aren’t any in the workplace.” What I mean is that you cannot disregard wage and hour laws because an employee is telecommuting. It is your responsibility to made sure that employees, who are working off site, accurately record their time. The failure to do so could put your company on the wrong end of a wage and hour lawsuit. Time can be tracked manually, or an employee can be required to log into your company server and electronically record their time.

3. What about confidential and proprietary data?

One of the reasons companies have a business location is security. The concept of security has taken on new dimensions in the Internet age. At a minimum, your employees should have a refresher course on what your company considers proprietary and confidential, the steps that must be taken to protect proprietary and confidential data, and the consequences of failing to adhere to your confidentiality policy.

My preference has always been that an employee should only perform work on a company computer with proper encryption. Do not assume that an employee, working from home, will always use a hard wire Internet connection. In many instances they will prefer to use a wireless connection. Raise that issue with your employees and confirm their wireless signal is encrypted. Always consult with your IT department about security measures that should be in place. Finally, consider providing a shredder and requiring all hard copies to be shredded or returned to your business location.

4. Consider the workers compensation implications?

Yes, employees are covered by worker compensation while they are working at home. Any lawyers reading this post, are now creating hypothetical nightmare scenarios. For example: Joe is talking to a customer on his cell phone, while he is in the kitchen making a PB&J sandwich. As he is returning the jelly to the refrigerator, he drops the jar, slips on the jelly, falls on the floor injuring his back, impaling his arm with the cell phone antenna, and, in the process, inconveniencing your customer. Is he covered under workers compensation laws? The answer in Washington, is probably, since our state does not have a PB&J defense. The answer might be different if Joe injured himself while he was not engaged in a work activity. To some employers, the mere thought of this happening is enough to drive them to a point where they insist that an employee only engage in work activities in a specified area of the home. Great idea but, people will be people. Use a good dose of common sense and, in most instances, you will be just fine.

My experience has been that employers spend more time worrying about the potential, yet to happen, worker’s compensation claim than is merited. Instead, employers should spend that time educating employees on the manner in which worker’s compensation claims should be reported and insure their employees understand that all claims should be reported promptly, regardless of where they arise.

5. Have a telecommuting policy and agreement.

Besides salary, some studies have shown the ability to telecommute is the second most important factor in attracting and keeping top talent. Unfortunately, employers tend to jump on the telecommuting bandwagon before they have policies in place that accurately communicate their expectations and the limitations of their telecommuting policy. At a minimum, the telecommuting policy should address work hours and availability, confidentiality and security, equipment to be provided and who will bear the risk of loss in the event that equipment is damaged, how performance will be measured, and the manner in which work hours will be recorded and reported. In addition your policy should reserve, in the employer, the sole discretion to revoke this policy with or without notice. The policy should be signed by your employee.

For those that are new to my Blog, the picture above is my telecommuting picture.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal matters often turn on specific facts. We encourage you to take your legal problem to a seasoned lawyer who can provide you with her/his opinion on the best course of action to follow.

2008-05-14T19:10:00.000-07:00

Wednesday's Excuse-Late Edition

So I’m sitting at the Mid-Town Station Coffee House and Wine Bar. We just call it the Mid-Town. Great restaurant by the Sound Transit Station in scenic downtown Sumner, Washington. The nice thing about a city like Sumner is that you tend to run into people that run the small businesses that are the backbone of our country. The Mid-Town is where a lot of them hang out. It’s also a good place to get some free Wi-Fi access, a great Northwest cup of coffee and half price nachos during happy hour.

As I’m sitting here, I run into one of the local business owners. He asks what I’m doing. I tell him, “It’s Wednesday and if I don’t get a real life work excuse posted on my Blog, I’ll have to post a Thursday’s excuse for not posting a Wednesday excuse which will make two excuses in one week.” It was obvious he didn’t get it. That’s ok. So I asked one of the servers for a good excuse she has used. Probably wasn’t a good idea. After all, if it works, you don’t want to clue your boss in who might be reading this Blog. We agreed to invoke the attorney-client privilege. So her excuse is, “I never call in sick unless I’m really sick.” Nothing. Undeterred, my server asked the cook. Still nothing. I’m starting to get a little desperate. Then I remembered, I had an excuse just in case I ran into a problem. It’s not great, but here’s Wednesday’s excuse:

I am stuck in the blood pressure machine down at Wal-Mart.

By the way, if you happen to drop in at the MidTown, tell them you read about them on Rod the lawyer's Blog.

2008-05-07T18:16:00.000-07:00

Storm Clouds at The Weather Channel

The Weather Channel is currently embroiled in litigation concerning the outcome of a sexual harassment and retaliation arbitration in which the arbitrator issued what one media outlet has described as a “blistering arbitration ruling in favor of a former anchorwoman...” Presently, The Weather Channel is attempting to keep the results of that arbitration cloaked in secrecy.

Here are the facts as I understand them:

The plaintiff (Hillary Andrews) went to work for The Weather Channel in 2003 and eventually was paired with a male anchor (Stokes). Andrews replaced another female who had reported sexual harassment by Stokes. According to Andrews, her predecessor suffered daily abuse by Stokes and would hide in her dressing room in between shifts to avoid Stokes. The predecessor was eventually let go after five (5) reports to management complaining of Stokes’ conduct. For a more detailed description of what Andrews’ and her predecessor endured click here.

Andrews alleged that Stokes was “sexually attracted to her and romantically obsessed with her.” Stokes would make crude sexualized comments such as, “Will you lick my swizzle stick?” In addition, he would grill her on her personal intimate life, including her sex life with her former husband. Stokes would ask “the same invasive questions about her sex life over and over again, non-stop. He would interrogate her for at least an hour during the three-hour time period between our shows on both Saturday and Sunday. He was relentless in his questioning; he would press incessantly, asking the same questions over and over.”

Andrews also alleged that Stokes would stare at her chest, follow her into her dressing room and invade her personal space. He would make some of the following comments:

a. “It tortures me when you wear those heels and skirt.”
b. “You are the most attractive woman I’ve ever worked with.”
c. “I find you very attractive.”
d. “You know I find you attractive.”
e. “I could win you over if I wanted to.”
f. “I know you are attracted to me, tell me, just say it.”
g. “ Sometimes I think about what it would be like.”

Andrews rebuffed Stokes. Once it became apparent to Stokes that he was not getting anywhere he began to sabotage Andrews on the air.

At first, Andrews was reluctant about reporting to management because she knew of what happened to her predecessor and she knew managers would speak of “putting up with Bob.” When she finally requested a different partner, she asked her supervisor, “Do you need me to tell you why?” Her supervisor responded, “No, I understand.”

After reporting this incident to The Weather Channel and advising that she would no longer tolerate Stokes’ abuse, Ms. Andrews received poor job assignments. Later, she would learn that her contract would not be renewed.

Andrews alleged that The Weather Channel failed to take action on her claim because Stokes had high ratings and was popular with viewers. The Weather Channel lost this case in an arbitration proceeding in which the arbitrator was highly critical of the manner in which this case was handled. Stokes was fired after the arbitration.

Lessons Learned:

When you have a problem, address it head on.

From the facts of this case, it is clear that the employer was aware of Stokes’ conduct but chose not to be proactive. Although there may be some reluctance in taking action when a highly placed or public employee has engaged in inappropriate conduct, put those concerns aside. You have an obligation to address those problems. Handling events of this nature always becomes more complex as the size of your company grows. In small companies these events can be handled discreetly. That luxury that is not available to larger publicly-held entities who have reporting requirements and risk, in today's volatile economic climate, having the price of their stock tumble with the disclosure of allegations of harassment or discrimination by a major figure within the company. In many of these cases, the signs were present, but no one wanted to be proactive.

Handling the complaint saves you money and sends a message.

One of the great myths is that employers who do the right thing and address sexual harassment in the workplace, will get sued. My experience has been that most employees only come into a lawyer’s office once it appears their employer is not willing to address a problem or they perceive they are not being treated fairly.

By being proactive, more often than not, you can stop a claim in its tracks. In addition, you will save the hard costs of litigation which can run upwards of several hundred thousand dollars in defense fees and costs, as well as, the soft costs of litigation. By soft costs I mean the general loss in productivity that is experienced, the loss of time associated with the retrieval of data as the parties exchange information, and the loss of time associated with participation in litigation related events such as depositions and trial. Don’t misunderstand what I am saying. You should never roll over just because a claim is made. However, if you determine unlawful harassment or discrimination has occurred, be firm, consistent, and make it clear to all concerned that you intend to stop the problem. In doing so, you will send a message that your company does not tolerate this type of conduct. This is one time where the rumor mill will work to your advantage. Consider the following. Joe is fired for sexually harassing female coworkers. When his replacement is hired, one of the first questions to coworkers will be, “What happened to the person who had my job?” What do you think Joe’s coworkers will say?

Think about how the actions you take today will look to a jury that is evaluating the case with the benefit of 20/20 hindsight.

Always take considered actions. Not only should you be fair but you should appear fair. In The Weather Channel case, perhaps someone should have thought of how their actions would be perceived at a later date. In many cases, a report of harassment or discrimination may not have the necessary components needed to succeed in court but, the employer will act in such a way that gives rise to a claim for retaliation.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal matters often turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional who can address your particular legal needs.

2008-05-07T10:13:00.000-07:00

Wednesday’s Excuse

“I won't be able to come in today. It seems that I have some unknown contagious disease; but I'll be fine on Monday."

2008-04-30T13:00:00.000-07:00

Wednesday’s Excuse

This is an excuse that will only work in the rainy Pacific Northwest:

“Dude, it’s sunny outside and I’m Vitamin D deficient!”

2008-04-30T10:55:00.001-07:00

USERRA Claimant does not have to pay filing fee.

In most instances, individuals, that want to have their case decided by the court, are required to pay a filing fee at the time they file their lawsuit. Robert Davis brought a lawsuit against his employer, Advocate Health Center, for a violation of USERRA (Uniformed Services Employment and Reemployment Rights Act). When he filed his lawsuit, he asked the court to waive the filing fee because USERRA excused him from paying the fees and costs of litigation. The court disagreed and gave him 25 days to pay his filing fee or his case would be dismissed. Undeterred, Roberts waited for the 25 days to expire and filed an appeal with the 7th Circuit Court of Appeals (The federal court that handles appeals from federal trial courts in Wisconsin, Illinois and Indiana. To see how the federal courts are divided by circuits click here).

On appeal, the 7th Circuit Court of Appeals reviewed USERRA and observed the statute provides that “[n]o fees or court costs may be charged or taxed against any person claiming rights under this chapter.” The Court noted that there really isn’t much case law on this issue, but in the case law that exists, including those cases interpreting the rights of members of the armed services under other statutes, it is clear that Congress intended to lessen the costs of litigation for service members and veterans, thereby allowing them to start a lawsuit without paying a filing fee. Roberts case was reversed and reinstated.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature and is not a substitute for the advice of a legal professional who can address your unique legal circumstance.

2008-04-29T19:10:00.000-07:00

Gas Up + Economy Down = Dissatisfied Employees

Recently, I had the distinct pleasure of gassing up for the bargain price of $3.93 a gallon. As I was getting ready to leave, I was approached by a young man that just paid a whopping $137 to fill up his diesel pickup truck. It was a beautiful truck but it wasn’t $137 worth of beautiful. If the media is correct, gas prices could easily exceed $4 a gallon by summer, as they already have for diesel fuel.

As I left the gas station, I could not help but think of how the increase in gas prices has impacted everyone, especially those individuals that have to live in the distant suburbs because they can’t afford housing closer to work. Those employees are now considering whether it makes sense to take a lesser paying job, nearer to their home, because wages are just not keeping up with the escalating price of gas and food.

Sure, I understand that when the economy is down it is difficult, if not impossible, to give your employees a pay increase. On the other hand, by not being proactive and recognizing the financial hemorrhaging that many families are undergoing, you are at risk of losing valued members of your workforce. With their departure you will also witness the loss of the time and money invested in training these employees, not to mention the time and money you will invest in finding and training suitable replacements.

Perhaps, now is a time to rethink how you conduct business. Maybe some of the following will help you hold on to your employees until the economy takes an upturn:

1. Have your employees work 4 ten hour days. By eliminating one day of a 40 mile round trip commute you are saving your employee about 2 gallons of gas or $7 a week, that translates into roughly $364 annually.

2. Conduct meetings over the web. The technology we dreamed of during the “dot com” era, is finally here. Many if not all meetings can be conducted over the web through web based services such as Yugma, WebEx and GoToMeeting.

3. Consider telecommuting for some of your workforce. Many employees can work just as well from home as they can in the office. (For some reason, allowing your workforce to work in their sweats and t-shirts makes them more productive.) Most of the concerns that employers with telecommuting relate to accurately tracking work time and confidentiality. The former can be addressed by tracking the time that employees log into and off of your server. If that doesn’t work, I remember back in the day we had this process that worked extremely well in tracking time. It was called “pen and paper.” In addition, you will have to address the issue of proprietary and confidential information. This again, is not difficult. Besides having happier workers, there are other benefits to your company. Depending on how often you permit employees to telecommute you can realize savings in real estate costs, energy costs and increased employee productivity.

In my next post, I will give you some of my tips on telecommuting. At the end of the day, the business case for keeping your workforce will probably out weigh any initial inconvenience or financial outlay. Till then, let’s keep thinking “outside the office walls.” By the way, if you are wondering why there is a different picture in this post, that is my telecommuting attire.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature and is not a substitute for the advice of a legal professional who can address your unique legal circumstance.

2008-04-24T14:43:00.000-07:00

After speaking at two seminars this week, I decided that I wanted to republish a post that I made about a year ago. Back then it was called Top 10 Handbook Mistakes. In the past year, I have reflected on this issue and added some additional mistakes and retitled it Top 10 Handbook Mistakes Plus 3.

Top 10 Handbook Mistakes PLUS 3

Is it a good idea to have a company handbook? Absolutely. A properly drafted employee handbook allows management to communicate their expectations to their workforce. Unfortunately, all handbooks are not created equal. What works well for one company may not work for another. To be effective, your handbook should be tailored to meet the needs of your business. More often than not, less is more when it comes to drafting a handbook. Unfortunately, most employers only become concerned about the deficiencies in their handbook after a lawsuit is filed. Once the lawsuit is filed, it’s too late.

So let’s take a look at what I call the top 10 handbooks mistakes, plus 3.

1. The “form” or plagiarized handbook.

Form handbooks are just what they claim to be: forms. They are not designed to meet your business needs. Many companies will buy a “form” handbook, print it out, and never read it. After all it must be “legal” if they sell it at the local office supply store, right? Worse yet, companies will decide to create their own handbook by plagiarizing all or portions of handbooks used by competitors on the theory that if they use it, it must be “legal.” These approaches are recipes for disaster.

For a handbook to be effective it must communicate management’s expectations to its workforce . In addition, management needs to appreciate that it will be held to the statements made in the handbook. Accurate expectations cannot be conveyed unless management has read the handbook and considers what will work for the way it does business. For example, if the handbook contains a progressive discipline policy but management will not follow it or will use it only in the most extreme circumstances, then the policy is not only meaningless but may be used against you in the context of a wrongful termination lawsuit.

2. Failing to have a policy that addresses discrimination and harassment in the workplace and that provides a reporting mechanism.

We all know that discrimination and harassment are prohibited. Hopefully, you know that your handbook should address these issues. I never cease to be amazed at how many handbooks contain prohibitions against workplace discrimination or harassment, but never instruct their workforce on how and to whom a report of discrimination should be made. As a consequence, these employers deprive themselves of potential defenses in the event of a lawsuit or administrative agency investigation and increase the likelihood that an employee will consult an attorney to remedy their problems.

3. Failing to have an “at will” disclaimer.

If your employees are truly at will employees then say it in your handbook. More importantly, make it clear that as an at will employee they are free to terminate their employment at any time, for any reason, with or without notice, just as the company is free to terminate the employment relationship at any time, for any reason, with or without notice. Generally, “at will” does not mean an employee can leave at any time and for any reason, as long as they give two (2) weeks notice.

This disclaimer, like all critical policies, should be signed and dated by the employee with an acknowledgement that they have read and understood the policy.

4. Failing to reserve the right to change the policy without notice.

Let’s face it, employees look at the statements contained in the handbook differently than you do as the owner of the company. To employees, these are promises. To you they are considered guidelines to follow but you don’t consider them as etched in granite. If that is the case, then tell your employees that these policies are guidelines and can change at any time without notice.

5. Having a probationary period.

When I see the handbook from a company that tells their employees that they have a probationary period, my first question is, “Are your employees at will?” I understand the rationale for a probationary period. From the employees’ perspective, the probationary period is a period of at will employment during which they can be terminated with or without cause. As a result, once the probationary period is completed, employees believe the only reason they can be terminated is for cause. If your employees are truly at will employees, you can terminate that employee at any time, for any reason, with or without cause, as long as you don’t terminate them for an illegal reason. The probationary period is unnecessary and confusing to your workforce.

6. Failing to leave wiggle room in the discipline policy.

Discipline policies can be helpful in conveying your expectations to the workforce. Many discipline policies try to classify offenses as minor and serious. The latter will result in termination and the former will not. The question then becomes, “How many minor infractions does it take to constitute a major policy violation?” By being too detailed, again you are placing yourself in a box. Other employers include a laundry list of acts that will result in immediate termination, but never enforce the policy or, worse yet, they do not state the list is not all inclusive.

The same holds true with regard to progressive discipline policies. Many employers have elaborate progressive discipline policies. Usually, the problem is not with the policy but with its implementation. If there is a concern about policy implementation, you would be much better off to avoid having such a policy. Remember a good lawyer can use your failure to follow the policy against your company.

7. Failing to assure consistency between the policy and company practice.

Read the employee handbook. Read it again. Read it one more time. Give thought to the policies. Is the handbook internally consistent? Do the policies in your handbook mirror the way your company does business? If your answer is no to either one of these questions, you should rethink the policy or practice.

8. Failing to review your policies.

Now that you have an employee handbook, you must review it periodically to determine if it is consistent with the manner in which you conduct business or with applicable law. Your failure to review the employee handbook on at least an annual basis can be the recipe for a future disaster.

9. Making broad statements that make people feel “warm and fuzzy.”

The employee handbook is supposed to communicate your company’s expectations of employee behavior. It is not promotional material designed to tell your workforce about how great you are or how tolerant the company will be because “we are one big family.” Leave the “Rah Rah” statements for the company picnic and let the policy convey expectations and you will avoid heartache and financial exposure.

10. Making promises you don’t have to make.

Many employers assume that all employers have to comply with all employment laws. This is incorrect. Before you make promises in a handbook, consider whether you are legally obligated to make those statements or whether those promises are going to further your business purposes.

11. Failing to have general disclaimer.

Employees consider the handbook to be contractual in nature. Employers consider these policies to be guidelines. To avoid a potential claim based on the handbook, cautious employers have handbooks that state the handbook is merely advisory and should not be considered a contract of employment. Without this type of disclaimer, defending your actions may be more difficult at a later date.

12. Failing to pay your employees to review the handbook and sign all key policies.

I know this is where I will catch a lot of flak. Remember, when I see problems arise in a handbook, it is usually after a lawsuit is filed. It has led me to conclude that employers should rethink how they handle the processing of handbooks. I know from experience that employee acknowledgments on key policies can make or break a case. When employee verify they have read and understood the policy, it becomes difficult, at a later date, for them to claim, they never saw the policy and really did not understand it. Most employers, when processing their employees, hand them all their new hire documents and ask them to sign key documents and leave it at that. Once a lawsuit arises, the employer has no proof the employee has read the handbook and the employee testifies that key policies upon which a defense may rest were never brought to their attention. By being penny wise and pound foolish, the employer may have deprived themselves of key defenses or made their assertion more difficult. Instead, a better practice would be to require your employees to read the handbook on the clock, initial the bottom of each page indicating they have read and understood the page and sign all key policies again verifying they have read and understood the policy. If all your policies are maintained electronically, then have your employee sign on to your intranet, using a unique identifier and password, and make these acknowledgments on line.

13. You can pay your lawyer now or you can pay your lawyer later.

Many years ago, Fram had an oil filter advertisement. In the commercial, a mechanic would tell his customer, “ You can pay me now or pay me later.” In other words, by being cheap and failing to install a good oil filter a customer would end up paying for costly engine repairs in the future.” The same holds true with a handbook. Unless you have a lawyer on staff, have the handbook reviewed by your lawyer to determine whether it is compliant with state law and federal law and whether you are making makes promises that need not be made. Yes, it will cost you money. It will, however, be far less expensive than defending a lawsuit.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal cases, often, turn on specific facts. Please do not use this Blog, or the information contained in this Blog, as a substitute for sound legal advice given by an experience legal professional.

2008-04-23T23:29:00.000-07:00

Wednesday's Excuse

Can't make it in. I have a chance of filling in for someone on jury duty.

2008-04-19T12:01:00.000-07:00

Dentist gets hit for doing more that just flossing

While enrolled in the Bryman College dental assistant program, Candace Wahl was placed in an unpaid externship at Dash Point Family Dental Clinic. The clinic was co-owned and operated by Dr. Don S. Moore. Candace did well in her externship and received two (2) favorable written evaluations. According to the clinic’s office manager, Dr. Moore liked to work with her.

After completing her externship, she was hired by Dr. Moore’s clinic in a full time capacity. A few months after her hire, the doctor began to make inappropriate and sexually explicit comments to Candace. These comments included discussions about his wife’s preferences during sex, his physical attraction to Wahl’s mother (Wahl’s mother was a patient), comments about oral sex, his sex life and the size of his penis. In addition, the doctor would comment about the bodies of female patients and employees, including Wahl.

In the final months of her employment, the doctor’s sexual comments became more graphic. His office manager, testified that she heard the doctor’s comments. She also testified that Dr. Moore demanded that the office manager perform oral sex on him. He also asked the office manager to buy condoms so he could have sex with her on the conference room table. Apparently, this conduct caused the office manager to warn externs about Dr. Moore and describe him as a “pervert.”

Candace, like most young people in this circumstance, tried to ignore the doctor and just do her job, however, the doctor would not stop. On Monday, February 23, 2004, Dr. Moore told Ms. Wahl that he wanted her to watch him masturbate. Later that day, he asked her to accompany him to the darkroom so he could teach her how to duplicate patient films. While in the darkroom, Wahl could smell lotion and hear the doctor masturbating. The doctor also asked Wahl to stop what she was doing and turn around so he could “finish faster.” Wahl refused to turn around and told the doctor that what he was doing was wrong. This incident ended when Wahl’s wife, a dental hygenist at the clinic, knocked on the darkroom door. Wahl quit the following Monday. She would later report this to the police.

After Wahl quit, Dr. Moore instructed the office manager to write a letter denying any sexual misconduct occurred between the them, that is the doctor and the office manager. The doctor also directed the office manager to write letters of reprimand, back date them and place them in Wahl’s personnel file. The doctor would later admit to back dating the documents but claimed the letters accurately reflected violations of clinic policies.

At trial, the judge found Dr. Moore’s explanations not credible and felt that he fabricated events. The trial judge found that Wahl had been wrongfully discharged in violation of Washington’s public policy against gender discrimination. The appellate court agreed with the trial judge explaining that an employee can be terminated either expressly or constructively. An express termination is one where the employee is told, “You’re fired.” Here the court felt that Ms. Wahl was constructively terminated (also referred to as constructive discharge) in that the doctor “made working conditions so intolerable that a reasonable person would have felt compelled to resign.” The court also held that, as a small employer, one that does not fit the definition of an employer under Washington Law Against Discrimination (employers with 8 or more employees), Dash Point Family Dental Clinic could be held accountable under Washington’s common law. For those interested in reading more about the court’s reasoning, click here.

The Bottom Line: At one time, some employers felt, that since they did not employ 8 or more people, they were immune from laws protecting our citizens against discrimination. That is not the case. While an employee that brings suit against an employer with less than 8 people, may not have the same arsenal of tools available, as they would if their claim were brought under the Washington Law Against Discrimination, they still are able to vindicate their rights in court.

I think we can all agree that the doctor not only crossed the line but went way over into the next county. Dr. Moore was fortunate that Ms. Wahl had this trial in front of a judge since the result in front of a jury would probably have been far worse.

Employers, when an employee leaves use common sense.

First, conduct an exit interview. That way you define the basis for their departure and any potential claims that might be out there.

Second, never, did I say Never? Well I meant, NEVER!!! Never recreate documents or back date documents. That only creates suspicion. I know there are times when employers fail to document an event or complete a form. If you feel a need to document an employee’s “sins” following their departure, then do it in a memorandum form, after talking to your lawyer.

Employees, remember that you have the burden of proving an intolerable workplace in the event you contend you were constructively discharged. The law presumes that you quit unless you were fired or laid off. This is important because your unemployment benefits could be denied if you fail to prove constructive discharge and it could also impact the amount you will be able to recover in a later lawsuit.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal cases often turn on specific facts. Please do not use the information in this Blog as a substitute for sound legal advice given by an experienced legal professional.

2008-04-11T15:33:00.000-07:00

Correction

Many thanks to one of our readers who emailed me today to advise of an error in my post of April 9, 2008 @ 12:52 am. In that post, I stated that, the change in Washington law that allows leave for the spouse of an individual to be deployed or who is on leave from military deployment, goes into effect on July 12, 2008. That is incorrect. The new law is effective June 12, 2008. For more information on this law, click here

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The observations made are general in nature and should not be used as a substitute for legal advice designed to address your particular legal problem. Individuals are encouraged to seek legal counsel that can advise them based on their unique matter.

2008-04-09T01:08:00.001-07:00

Wednesday's Excuse

I won't be in to work today. My brain is full.

2008-04-09T00:52:00.000-07:00

Employer Alert: New Washington Leave Laws

The Washington legislature has passed two new laws that impact the workplace. These laws apply to all employers in our State, regardless of size.

The first allows leave for victims of domestic violence and their families. That law went into effect on April 1, 2008. Some of the key components of the law are:

1. The law allows victims of sexual assault or domestic violence to take reasonable leave, including intermittent leave, to receive counseling and/or medical care, as well as, to take care of legal and law enforcement needs.

2. The leave can be paid or unpaid. The employee can use accrued personal time off, sick, or vacation for this leave.

3. The leave also allows families members of a victim of domestic violence or assault to take time off of work to assist the victim obtain help or treatment. Family member is defined as child, spouse, parent, parent in law, grandparent, and person the victim is dating.

For more information on this law, click here

The second leave law goes into effect on July 12, 2008. This law allows 15 days of leave to the spouse of individuals that are on leave from military deployment or before and up to military deployment. To qualify for this leave, an employee must work a minimum of 20 hours per week and provide the employer with notice of their intention to take leave within 5 days of receiving official notice that the employee’s spouse will be on leave or has been called to active duty. For more information on this law, click here

Our recommendation is for employers to immediately adopt handbook policies that address the issues raised by these laws.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The observations made are general in nature and should not be used as a substitute for legal advice designed to address your particular legal problem. Individuals are encouraged to seek legal counsel that can advise them based on their unique matter.

2008-04-04T17:43:00.001-07:00

EEOC holds Sunbelt Rentals Accountable

Clinton Ingram served our country in the United States Army. While in the Army, Ingram converted to Islam. After getting out of the military, he went to work for Sunbelt Rentals in Gaithersburg, Maryland. He started in October 2001, a month after the September 11th attacks. Ingram rose from the position of a truck driver to Rental Manager when he was let go in February of 2003.

Sunbelt allowed Ingram to use a private upstairs room for short prayer sessions, as well as, attend weekly congregational prayer sessions that took place between 1:00-1:45 p.m. on Fridays. It was clear that Ingram was a practicing Muslim. He observed the tenets of his faith by participating in the prayer sessions, he maintained a beard and wore traditional Muslim male headgear (a kufi).

Coworkers and managers were not tolerant of his faith. His coworkers called Ingram “Taliban”, “towel head”, ridiculed his appearance, challenged his allegiance to the United States, and suggested he was terrorist. On one occasion, an employee held a metal detector to his head. After the metal detector did not go off, the employee called Ingram a “fake ass Muslim want-to-be turbine wearing ass.” When his allegiance to the United States was brought into question by a coworker who asked, “are you on our side or are you on the Taliban’s side,” and who also stated, “if you don’t like America or where we stand, you can just leave,” Ingram responded that he was an American and a Muslim.

In addition to the verbal ridicule, Ingram would find his timecard hidden multiple times during the work day, especially on Friday when he would leave for 45 minutes to attend congregational prayer. Ingram was harassed about taking his prayer sessions and told by a manager that he wanted to be a Muslim so he could have eight (8) wives.

Sunbelt employees acknowledged, that due to the September 11th attacks, religious tensions ran high within the company and the country. In addition, the trial judge allowed Sunbelt customers, who were Muslim, to testify how they were treated at the Gaithersburg branch. Those customers testified that Sunbelt employees called them a number of derogatory names including “Bin Laden,” “Hezbullah,” “Ayatollah,” “Kadaffi,” “Saddam Hussein,” “terrorist,” and “sun nigger.

Sunbelt argued that the instances of this adverse conduct were limited, even though Ingram testified he was subjected to religiously intolerant conduct on virtually a daily basis. In addition, Sunbelt argued that it could not be responsible for the actions of coworkers since, once it learned of the conduct, it took prompt remedial action. While the Court acknowledged that Sunbelt could not be charged with “cleansing the workplace environment of all offensive remarks,” it could be held accountable for its failure to to take meaningful action to stop the actions of Ingram’s coworkers, as well as, for the conduct of its managers. In arriving at these conclusions, the Court was convinced that, in spite of the climate that existed in the United States immediately following the September 11th attacks, employees had the right to be free from religiously intolerant conduct in the workplace. The Court also felt the conduct, to which Ingram was exposed was not isolated or trivial in nature, but, instead, was sufficiently severe and pervasive to create a hostile work environment based on Ingram’s professed religion.

The Bottom Line: Regardless of the general environment existing within our culture, employers are required to assure their workplace is free from harassment and discrimination. Here, the prevalence of the harassment, management’s participation in the harassment and the failure to take meaningful steps to end the harassment caused the employer legal exposure. Claims of this nature should not be taken lightly. Employers should take care to address these claims in a timely and meaningful fashion. In this case, Ingram’s claims were bolstered by his repeated report of offense treatment by coworkers and management and the company’s apparent failure to take those reports seriously.

Nothing in this blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature. Nothing can substitute for a consultation with a legal professional who can address your particular legal concern.

2008-04-02T10:30:00.000-07:00

Wednesday's Excuse

This excuse falls under the category of "if you don't have a good excuse, at least make your boss think you are being considerate."

"Work???...I didn't want to be late AGAIN....so I decided to call in sick!!!"

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature. Nothing can substitute for a consultation with a legal professional who can assist you with your legal problem.

2008-03-28T11:15:00.000-07:00

AT&T CEO CAN’T FIND QUALIFIED PEOPLE

AT&T CEO Randall Stephenson is reported to be complaining about his company’s alleged inability to find qualified people to handle 5000 customer service positions being returned to the United States that were outsourced to India. According to Stephenson, AT&T is having difficulty finding people with the skill set necessary to handle the jobs. He goes on to state that, in some communities, the high school drop out rate is 50% and observes, "If I had a business that half the product we turned out was defective or you couldn't put into the marketplace, I would shut that business down."

Although I was unable to find the pay range for jobs that AT&T is trying to create in San Antonio, I did find a posting for a Customer Service Representative I in Lubbock, Texas. That job pays between $368.50 - $505.50 per week. That translates to an hourly wage of approximate $9.21 to $12.64 per hour. My suspicion is that most people, unless they have experience, will start at the lower end of that pay scale. In case the CEO hasn’t noticed, here are the hard facts:

1. At the time this post is made the gas prices in San Antonio are $3.07 to $3.12 a gallon.
2. A one bedroom apartment in San Antonio rents from between $615 to $888 per month.
3. Food prices and the cost of living, in general, are skyrocketing.

The Bottom Line: You don’t have to be a CEO to understand that sometimes it does not make financial sense to take a job even if it is for AT&T. Perhaps the solution is to pay employees a wage they can live on. Generally, that will increase the caliber of the job candidate.

Just in case you wondered, according to Forbes magazine, Mr. Stephenson’s earnings in fiscal year 2007 were as follows: base salary $1,158,583, bonus, $648,750, other long term compensation $20,174,651. Total earnings for the year: $21,981,984.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter turns on specific facts and nothing can substitute for the advice of a legal professional who has a understanding of the unique aspects of your legal matter.