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.

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.

Wednesday's Excuse

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

Ohio Court rules private sex video not admissible

Kristina Conti, Emily Dutton and Shawna Smith worked for Spitzer Auto World. These employees alleged they were subjected to sexual harassment on nearly a daily basis. Ms. Conti alleged that two sales managers routinely viewed pornography on work computers and forced her to view pornography on a number of occasions that included acts of intercourse between men and women and women and women. Ms. Conti also alleged that a sales manager rubbed up against her and forced her to touch his buttocks. According to the employees, they were regularly queried about the type and color of their underwear, their private sex lives and their interest in different sexual positions.

At trial the employer convinced the trial judge to allow it to question Ms. Conti concerning a private sex tape made with her husband. The employer argued this evidence was admissible to show that Ms. Conti could not have been emotionally damaged by being forced to view pornography in the workplace. Ms. Conti was not allowed to present any evidence that the video was made by her husband without her consent or any other mitigating factors. After Conti lost at trial, she appealed.

The appellate court held that consensual sexual activities between a husband and wife cannot be used as a defense against sexual harassment which by definition is not consensual. The court felt the employer’s rationale would allow a complete stranger to pursue sexualized behavior toward a woman since she may consent to that type of behavior in the privacy of her home with her husband or significant other. As a result the appellate court felt Ms. Conti’s right to a fair trial was prejudiced and she was permitted to have a new trial, this time without the admission of evidence concerning her private activities with her husband which had no bearing on whether Ms. Conti was forced to view graphic pornography at work.

The Bottom Line: An employee cannot be sexually harassed if they have invited or consented to sexualized conduct. Here the employer was successful in convincing the trial judge to admit highly prejudicial evidence that had no bearing on the key inquiry of whether she was sexually harassed at work. The appellate court’s opinion may have been radically different had Ms. Conti shown the private home video to others, coworkers or otherwise publicized its existence.

This case also highlights that blatant sexual harassment continues in today’s workplace. Sometimes, given the attention that has been directed to sexual harassment over the past two decades, it is easy for human resources professionals to be lulled into a false sense of security that flagrant sexual harassment does not exist. Unfortunately, due to the ease with which sexually explicit material can be obtained, employers must be ever vigilant. Training on issues of sexual harassment, reporting procedures and proper use of company email and Internet access are a key component to minimizing an employer’s exposure. In addition, an environment must be created where employees and management are encouraged to report unwelcome conduct in the workplace.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter can turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional.