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Politics in the workplace: how to remain legally compliant during election season

lisahein — Thu, 20 Aug 2015 15:22:07 +0000

With the election approaching, and presidential campaigns underway, the water cooler discussions have already started. While it is natural for employees to discuss current events at the workplace, how far should the political discussions reach? What are an employer’s obligations to keep the office politics free?

Limiting political discussions

While the First Amendment governs free speech rights, the protections apply only to state action. Employers have the ability to regulate political discussion in the workplace. First Amendment protections do apply to public employers and protects a public employee’s rights to free speech. While some states have statutes that regulate free speech in the work place, others do not.

A clear employment policy is the best way for employers to control politics in the workplace. Employers can discipline or discharge an employee for violation of workplace policies, as long as the policy is applied consistently to all employees. In most cases, employers should reserve discipline or discharge to instances where the employee’s conduct interferes with his/her work activities or creates a disruption in the workplace.

Political activities away from work

An employer must be careful when regulating an employee’s off duty conduct. In general, before considering a policy or practice that regulates an employee’s off-duty political speech, an employer must determine whether there is a legitimate business reason to limit the conduct. Examples of a legitimate business activity might include:

the company’s reputation

disruption to the workplace and employee morale

potential legal liability to the employer because of the conduct

loss of business relationships related to the conduct.

Absent a legitimate business reason, employers can face claims of discrimination, or claims for invasion of privacy for trying to regulate non-work-related conduct.

Political campaigning at work

Non-solicitation policies

Generally, employers can require that employees refrain from activities, such as campaigning, or passing out political literature during their work hours, excluding breaks and meal times. Employers with non-solicitation policies may apply those policies evenly with respect to all areas of solicitation, including selling cookies for a child’s school fundraiser, to soliciting for political purposes. Employers must be mindful of the NLRB’s protection of employee’s ability to protected concerted activity for their “mutual aid and protection.” These rules allow employees to generally discuss the terms and conditions of employment. Because the NLRA protects union-related activities (but not political speech), employers must take great care to distinguish the two when establishing a non-solicitation policy.

Political dress, including badges and buttons

When it comes to employees wearing badges, buttons, or other political dress, an employer may establish a neutral dress code that prohibits the employee from wearing T-shirts or other types of clothing. However, with respect to badges and buttons, the NLRA will allow employees to wear badges or buttons that are related to a union or to unionization as long as doing so does not create a safety hazard, or impact another legitimate business purpose. In general, if an employee is wearing a political button that also includes a union message, employers should refrain from prohibiting that activity.

Therefore, when considering a policy to regulate political speech and solicitation, employers should consider the following:

Applying a neutrally enforced policy that restricts solicitation only during work hours (not on lunch breaks or rest breaks), employers can refuse to let employees distribute or post political flyers at work.
It is a good idea to send out a reminder to employees of your policy in the weeks leading up to Election Day.
If an employer prohibits wearing political buttons or posting political posters, the company should be certain that the prohibition is followed absolutely.
Employers can also ban political slogan buttons or T-shirts as part of your dress code policy, particularly for employees who come into contact with clients or customers.

The ban must be uniformly applied – if anyone (including the company president) wears a political election button, the ban loses its force and an employee disciplined for violating the policy may have a claim for wrongful discipline or discharge, or even coercion under state law.

Any embargo on buttons may not extend to union buttons worn during a union organization or election as this is protected under the NLRA, but more about that later.

Use of an employer’s company equipment

Employer company equipment includes items such as bulletin boards, copy machines, telephones and computer systems. While employees enjoy limited rights to solicit and distribute union-related materials on company property, an employee enjoys no such right with respect to use an employer’s equipment for union or other purposes, including political campaigning.

Employers who wish to control the use of their company’s computer systems, including email, must have and regularly enforce an electronic communication policy that warns employees that the computer systems are company property and that regulates the type of discussion that can take place on a computer system. An employer can limit the political discourse that takes place on its computer systems through an electronics communication policy,.

Asking employees to support employers’ political views

Under federal law, employers have some ability to ask executive or administrative personnel who are exempt from the Fair Labor Standards Act (FLSA) and have policymaking, managerial, professional or supervisory responsibilities to vote for or against a particular political candidate. This ability does not apply to the rank and file employees. However, employers are restricted from influencing employees’ actions in state elections. It is a violation of the election laws for a person acting alone or through another person to directly or indirectly subject any person to undue influence with intent to induce any person to:

refrain from registering or voting

be or refrain from or cease being a candidate

contribute or refrain from contributing to any candidate, political party or political committee

render or refrain from rendering services to any candidate, political party or political committee

challenge or refrain from challenging a person offering to vote

apply or refrain from applying for an absentee ballot

sign or refrain from signing a prospective petition or an initiative, referendum, recall or candidate nominating petition.

“Undue influence” under this statute means “force, violence, restraint or the threat of it, inflicting injury, damage, harm, loss of employment or other loss or the threat of it, or giving or promising to give money, employment or other thing of value.”

Still have questions about dealing with politics in the workplace?

For more information about preparing your workplace for election season, check out your state-specific handbook. We also recommend signing up for our weekly, light-hearted employment law newsletter, the HR Update. Click here to sign up.

Termination Series: Communicating the reason for discharge

lisahein — Tue, 23 Jun 2015 13:31:10 +0000

Do employers need to provide a reason to a discharged employee?

Federal law does not require employers to provide terminated employees with a written explanation for their discharge. However, many states have litigation in place that calls for an employer to provide documentation outlining the reason for termination. This is a called a service letter, and some state laws decree that you give this to the employee immediately upon termination while others only require a service letter to be issued upon an employee’s request.

Be honest and succinct

Regardless of state law, it is usually a good idea to let an employee know why they are being terminated and to keep a record of this information. When conducting a termination, you should honestly state the reason for discharge. The explanation should be factual and brief. In some cases, an employer’s failure to state the true reason for the termination or stating reasons inconsistently has been considered evidence of bad faith or discrimination.

Note:

Don’t try to avoid difficult discharge decisions by classifying the discharge as a “layoff.” Calling a discharge a layoff can be dangerous if a true layoff did not occur as the error may be enough for a reasonable juror to determine the employer’s reason is a pretext for discrimination.

Steer clear of defamation

Avoid giving defamatory or derogatory reasons for termination. This means you should be sure to not communicate a statement to the employee that may injure his or her reputation, especially if the statement may not be factual. A defamation claim typically is comprised of the following:

a false and defamatory statement (a statement that injures the reputation or community standing of another person or discourages others from associating with that person)
concerning the plaintiff
that is “published” or communicated to a third party
with fault amounting to at least negligence (some states have not required a showing of fault or negligence if the plaintiff is a private person and the defendant is not a member of the media)
and
with proof of damages or a presumption of damages to the plaintiff as a matter of law.

An ex-employee may bring a defamation claim if an employer gives information to prospective employers without a release. However, employers should also be aware that a subsequent employer could possibly sue the former employer for negligent referral if the employee commits the same type of wrongful conduct she or he committed at the previous job. Careful consideration should be given to any communication regarding the reason for the termination.

If the reason for discharge is documented, the documented reason must be the same reason that was stated to the discharged employee in the event that the employee files for wrongful termination. In the event that the termination involves a complicated matter, you may wish to seek legal counsel before drafting a separation notice.

Looking for more details about the termination process?

Check out our Hiring, Firing and Discipline for Employers guide, authored by the expert attorneys at FordHarrison. You can also check out the requirements specific to where you live by visiting our homepage here and selecting the options for your state.

Avoiding penalties under the Affordable Care Act

jeff — Fri, 22 May 2015 15:26:02 +0000

The Affordable Care Act (ACA) has been around since 2010 but it is still relatively new to a lot of people, including employers. For employers, it’s really important to be ahead of the curve when it comes to labor law to avoid possibly hefty fines and penalties. So here’s a run-down of the Section 4980H (the “Play-or-Pay” mandate), recordkeeping requirements, and the possible penalties for violating the ACA.

What is the Section 4980H–Employer ‘Play-or-Pay’ Mandate?

As added by the ACA, section 4980H of the Internal Revenue Code requires that all “large” employers (those with 50 or more employees) must provide health care coverage that meets minimum essential benefits requirements to all full-time employees and their children or pay a penalty. The coverage must provide the minimum value to plan participants and must be affordable.

The “minimum value” standard is a health plan that can pay at least 60% of the total cost of medical services for a standard population. The coverage is considered “affordable” – as it relates to the premium tax credit – if the employee’s share of the annual premium for the lowest priced self-only plan is no greater than 9.56% of the annual household income.

What are the requirements for large employers?

All “large” employers are those with 50 or more employees. They must provide the minimum essential coverage (MEC) to at least 70% of their full-time employees (and their children). For determining coverage of the ACA, “employee” is defined either as:

an employee who works 30 or more hours per week
or
a “full-time equivalent” employee, which is counted by dividing the total number of monthly hours worked by part-time employees by 120.

“Part-time” employees are counted towards determining ACA coverage, but are not included for purposes of the “Play-or-Pay” penalties.

Are there any requirements for smaller employers?

Small employers, those with fewer than 50 full-time equivalent employees, are not subject to the “Play-or-Pay” mandate. In order to encourage small employers to offer medical insurance, the ACA provides tax credit to qualifying small employers. To be eligible for a credit, the employer must pay at least 50% of employee health care coverage. Additionally, to be eligible for the credit, a small employer must:

have no more than 25 full-time equivalent employees
and
pay an average wage of less than $50,000 per year.

However, the maximum credit will only be available to employers that:

have 10 or fewer full-time equivalent employees
and
pay an average wage of less than $25,000 per year.

What are the recordkeeping requirements?

The ACA requires employers and/or health insurance issuers to report the IRS information about employer-sponsored health coverage. The Form 1095-C (Employer-Provided Health Insurance Offer and Coverage) is to be used to report the required information with respect to each covered employee, and Form 1094-C is used to transmit the 1095-C return to the IRS. The IRS will use these forms to determine whether the employer owes a penalty under Section 4980-H.

What are the possible penalties for violating Section 4980-H?

Large employers could face two types of penalties, depending on whether or not they choose to offer health care coverage to employees. The two separate penalties are:

Do not offer coverage
Large employers that do not offer coverage and have at least one full-time employee receiving a premium tax credit from the government under the ACA must pay a penalty of $2,000 per full-time employee (excluding the first 30 full-time employees).
and
Do offer coverage
Large employers that do not offer coverage, but have at least one full-time employee receiving a premium tax credit und the ACA because the employer offers coverage that does not meet the “minimum value” or is “affordable,” must pay the lesser of $3,000 per employee receiving a premium credit or $2,000 per full-time employee.

Looking for more details about the Affordable Care Act?

For more information about ACA provisions and future mandates, check out Employee Benefits – An Employer’s Guide as well as your state-specific handbook. We also recommend signing up for our weekly light-hearted employment newsletter, the HR Update. Click here to sign up.

Wearable Technology

shannon — Tue, 16 Sep 2014 03:46:34 +0000

In the last year, we have seen a rise in wearable technology. From the newly released Apple Watch to the spread of Bluetooth devices, it seems that technology is becoming more integrated into our daily lives than ever. These new advancements are causing people are to view their technology as a permanent accessory and not just a device that is used periodically throughout the day. Many carry their cellphones constantly in their hands, feeling the need to have them easily accessible at moments notice. While this shift towards constant technology use can result in higher productivity and better communication, it can also cause a whole mess of problems for employers. Below are a few issues that can arise out of what experts are calling "wearable technology."

Protecting company information

While convenient and popular with employees, the common practice of allowing employees to use electronic devices throughout the day poses significant risks that require careful management. The practice results in company information residing on devices/networks that the company does not own or control. When the security and protection of the company information is left up the discretion of the employee, information may not be as secure as an employer would like it to be.

Texting during work hours

There are positives aspects to text messaging that can be applied to the workplace. For instance, employees could be in an environment where they cannot make a phone call or send an email. Such an instance may arise in a sales pitch. Sales personnel might need to send a quick message to someone at the home office to verify a calculation. Unfortunately, using a telephone to call or a computer to send an email to someone at the home office would likely not be an option during a sales pitch. Despite the positive aspects of text messages and the sometimes unavoidable reality of text messages, many issues arise as a result of texting in the workplace.

Non working hours

Some supervisors may text their subordinates with a question or assignment after the subordinate has gone home. Requiring nonexempt employees to handle work-related texts without recording their hours worked could result in litigation under the FLSA involving lost wages, liquidated damages and attorneys’ fees. If supervisors frequently text nonexempt employees with work questions or assignments when they are no longer working, the employer could be subject to a FLSA class action.

Safety

Cellphone use is frequently a distraction. In an environment with dangerous equipment, employees could injure themselves if they are distracted by their electronic device and thus open the employer up to workers’ compensation claims and liability under the Occupational Safety and Health Administration Act. Further, employees who drive while texting could cause an accident, again opening the employer up to workers’ compensation claims or tort liability for third parties injured in the accident. Finally, certain states, such as California, prohibit texting when driving altogether. In those states, if employees text while driving, they are not legally compliant.

Document retention

Text message, brief phone calls, and social media use are generally not routed through an employer’s network meaning that unlike email exchanges, employers often have a difficult time tracking and recording for future reference. What is said via these outlets may have important business significance and it is up to the employer to instill policies which prompt employees to make records of such information exchanges.

Alternatively, such exchanges between employees are not documented and if anything illegal or improper transpires employers will have a difficult time getting to the bottom of the matter.

Back to school time is here!

shannon — Mon, 25 Aug 2014 04:40:06 +0000

Every August millions of students return to school from summer vacation. While it may not seem that relevant to the 9 to 5 workforce, the school year can impact employers in several ways, from internships to continuing education benefits Here are a few things to look out for as school gets back in session.

Ending internships

The internship should be for a set amount of time, established prior to the start of the internship. Further, unpaid internships should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, the court will consider that individual to be an employee under the FLSA.

Student learners

Individuals who qualify as student learners are not prohibited from working in certain occupations which are otherwise restricted to them by virtue of their age. To qualify, the individual must meet the following criteria:

16 to 18 years of age
enrolled in a youth vocation training program under a recognized state or local educational authority
employed under a written agreement which contains the name of the student learner, and is signed by the employer, school coordinator, principal and parent or legal guardian. The agreement must provide that:
- the work in the occupation declared particularly hazardous will be incidental to the training
- the work will be intermittent and for short periods of time and under the direct and close supervision of a qualified and experienced person
- that safety instruction will be given by the school and correlated by the employer with on-the-job training
- a schedule of organized and progressive work processes to be performed on the job will be prepared.

Only certain occupations, otherwise prohibited for individuals under age 18, are permitted under this exception for student learners.

Continuing education benefits

Some employers provide educational assistance to employees for certain education expenses incurred by its employees on a tax-advantaged basis.

Qualifying expenses include:

tuition
fees
supplies
books
equipment.

Qualifying expenses generally do not include:

education related to hobbies
games
sports.

Undergraduate and graduate degree courses may qualify.

Employers are not obligated to reimburse employees for continuing education programs. Many employers choose to do so, however, because they believe such programs benefit the company by encouraging employees to become better educated in their respective fields of specialization and thereby improving company productivity.

If an employer elects to have a tuition reimbursement program, its terms should be in writing and contain the requirements for receiving reimbursement. To provide the employee funds for educational purposes in advance, the employer may wish to utilize a loan document and wage assignment to authorize payroll deduction in the event the employee terminates employment prior to completing the course or otherwise fails to complete or pass the course. It also should be noted that employees generally must be compensated for time spent attending mandatory on‑the‑job training programs or seminars.

SAMPLE POLICY

As a full‑time employee of ABC Company, you may qualify for tuition reimbursement. The Company will reimburse you fully for tuition, fees, and books for courses taken that are directly related to improvement of relevant job skills with the Company. This policy also covers all courses taken to fulfill the requirements of a degree program approved by your manager. All reimbursements are subject to the approval of your supervisor or manager and the Human Resources Manager.

All tuition reimbursements must be requested in writing and approved prior to beginning the course. Reimbursement may be subject to taxes. To qualify for reimbursement, you must receive a passing grade and you must be an employee in good standing at the time of reimbursement. Courses must be taken at times other than during scheduled working hours. Proof of passing grade or certificate of satisfactory course completion and receipts for tuition, fees, and books must be turned in to the Human Resources Department in order to receive your reimbursement.

Parental leave

During the last decade, there has been an increased interest in promoting flexibility for employees with caregiver responsibilities, including parents of school-aged children. Federal lawmakers have proposed amending the Family and Medical Leave Act (FMLA) to allow employees to take unpaid leave to participate in their children's school-related and educational activities. These activities might include parent-teacher conferences, class parties, volunteer activities, assemblies, sporting events, and other extracurricular activities. Currently, there is no obligation under either federal law to offer employees parental leave. If the employer elects to offer paid or unpaid parental leave, a policy should be spelled out in clear and detailed terms so that employees understand the nature and limitations of the benefit.

Some employers choose not to offer parental leave because it is a benefit that is not available to all employees and because parental leave can be difficult to define and limit. Alternatively, if an employer does not want to offer separate parental leave, the employer’s policies concerning personal days or paid time off (PTO) (discussed above) could provide that such leave can be used at the employee’s discretion for activities such as parent-teacher conferences or other school events.

SAMPLE POLICY

ABC Company recognizes that many of its employees must balance work requirements with parental responsibilities. For this reason, the Company provides unpaid parental leave to full‑time employees who are the parent, guardian, or foster parent of a child (or children) who is attending school or licensed daycare and is under age 18. Parental leave may be used only for the employee’s attendance of conferences or classroom activities that cannot be scheduled during the employee’s non-work hours.

Eligible employees may take up to 10 hours of unpaid parental leave per child during any calendar year. An employee may substitute accrued paid vacation leave or other appropriate paid leave for unpaid parental leave. Parental leave must be requested at least one week in advance and approved by Human Resources and the employee’s supervisor. Employees using unpaid parental leave may be required to provide written documentation of their attendance of a conference or classroom activity.

Nepotism: Favoring relatives and friends in the workplace

shannon — Tue, 05 Aug 2014 00:57:37 +0000

It is not unusual for multiple members of a family to work for the same employer. However, such situations can be troublesome if the family members are in a superior-subordinate relationship because:

the relationship may give rise to favoritism or to suspicions of it
the subordinate family member takes advantage of the situation by not working as hard or by not following the orders of the superior family member
the superior family member cannot or will not control the activities of the subordinate (including administering discipline when needed or offering constructive criticism on performance evaluations).

It sometimes happens that employees in a superior-subordinate relationship marry during the employment. Employers generally allow both parties to remain with the company unless there is no open position to which one of the employees may be moved. However, it is important to address such situations on a case-by-case basis to avoid gender discrimination claims.

In hiring

The recruitment of current employees’ relatives tends to perpetuate the racial, religious and ethnic characteristics of the existing workforce. Therefore, nepotistic recruiting may be discriminatory where the current workforce is predominantly or exclusively of one race, religion or ethnic group.

Policies against nepotism

Anti-nepotism policies prevent related individuals from working in the same company or department. Employers choosing to adopt such a policy should state that cases concerning the employment of relatives will be dealt with on a case-by-case basis to ensure maximum flexibility in handling such situations. Also, the policy should contain an explanation of why the employer discourages the employment of relatives and should describe the circumstances and types of relationships covered by the policy. The employer might also include a list of circumstances and relationships that would be permitted by the policy.

There are a number of sound reasons for anti-nepotism rules and “no fraternization” policies including:

avoiding involvement in emotional problems at the home
avoiding supervisory conflicts between spouses and relatives
avoiding hiring decisions based on favoritism or the appearance of favoritism
avoiding vacation and day off scheduling problems
avoiding family influence regarding grievances and work conflicts.

Title VII does not prohibit discrimination on the basis of marital status. However, many state laws prohibit employers from discriminating based on marital status.

A thoughtful “anti-nepotism” policy should allow the employment of family members while avoiding the common operational issues associated with such situations.

Sample anti-nepotism policy

ABC Company welcomes the opportunity to hire and retain qualified employees who are related to one another by blood or marriage. However, since such relationships sometimes can create problems in the workplace, including suspicions of favoritism if the related employees are in a supervisor-subordinate relationship, it is the policy of ABC that:

Any employee of ABC who has or acquires a familial relationship (as defined below) with another employee shall not have any direct or indirect administrative or operational authority over the other person. This prohibition means not only that a person cannot supervise a family member but also that the family member cannot be in that person's chain of command; for example, a family member cannot work in a department in which a family member is the Vice President.
An employee of ABC cannot use his/her authority or position with ABC to benefit or to disadvantage another employee in a familial relationship. Although all such potential misuses of authority cannot be listed here, examples include an employee signing an evaluation for a family member or signing/approving a check payable to a family member.
Employees are required to notify the company’s Human Resources Department of (a) any existing familial relationships; (b) any familial relationships that are created among employees (for example, by the marriage of two employees); and (c) the potential employment by ABC of a family member.
ABC will refuse to hire a job applicant who is in a familial relationship with a current employee if the applicant would be in a supervisory or subordinate position to the existing employee. ABC employees who marry one another during their employment will be allowed to remain with the company unless they are in a superior-subordinate relationship and there is no open position to which one of them may be moved.
“Familial relationship” within the meaning of this policy means two employees (or an employee and a job applicant) in the relationship of husband, wife, father, mother, brother, sister, son, daughter, uncle, aunt, nephew, niece, grandfather, grandmother, grandson or granddaughter, or any of those relationships arising as a result of marriage (for example, brother-in-law).

Need more employee policies? Check out what’s available for your state here.

Looking to stay as up-to-date as possible? Sign up for the HR Update, our free e-newsletter that uses simple (and often hilarious!) language to keep you in the loop with what’s new in the HR world. Click here to sign up.

Whistleblowing

shannon — Tue, 29 Jul 2014 02:29:07 +0000

What is whistleblowing?

While the definition of whistleblower varies depending on the statue being cited, the term generally describes an employee who reports an employer for violations of laws or regulations.

To give a little more detail we can look at one commonly cited definition of whistleblower, found in the Occupational Safety and Health Act (OSH Act):

“No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise of such employee on the behalf of himself, herself, or others of any right afforded under this Act.”

What are the possible sources of whistleblower protection?

There are various sources a whistleblowing employee may turn to in seeking protection against employer retaliation. These sources include:

federal statutes
state statutes
retaliatory discharge claims based on state common law exceptions to the employment-at-will doctrine.

When it comes to federal and state statutory protection, whistleblower protection for employees may result from general whistleblower laws or topic-/industry-specific statutes that cover whistleblowing. These topic- and industry-specific statutes may provide protection to certain employees who report employer actions that violate the particular statute. However, not all state and federal statutes contain whistleblower provisions.

What protections are there for whistleblowers under federal law?

There are several federal protections for employees who decide to report their employers. Additionally, many states have their own laws to protect whistleblowers – employers should check with their Department of Labor for more information.

The Occupation Safety and Health Act (OSHA)
Section 11(c) of the Occupational Safety and Health Act protects employees from discrimination for filing an OSHA complaint. Further testimony in an OSHA proceeding (including inspections) are protected, as are safety complaints to an employee’s employer.
An employee alleging a violation of Section 11(c) of OSHA may file a complaint with the Director of OSHA within 30 days of the alleged violation – unless there is a basis to equitably toll the 30-day requirement.
Sarbanes-Oxley
Employees of publicly traded companies are protected by whistleblowing provisions of Section 806 of the Sarbanes-Oxley Act from retaliation for:
filing complaints
providing information
testifying regarding employer conduct the employee reasonably believes violates:
mail, bank, wire or securities laws
or
any rule of the Securities and Exchange Commission
or
any federal law relating to frauds against shareholders.
False Claims Act
The False Claims Act protects employees reporting on their employers and/or others who are defrauding government programs. Complaining parties are entitled under a qui tam provision, which allows individuals to sue on the government’s behalf and be entitled to a percentage of any recovered damages. Actions are brought in federal court.

How can employers avoid whistleblower claims?

Employees may find protection from employer retaliation from a variety of sources. To prevent whistleblower claims, employers should familiarize themselves with the laws that apply to their particular operations, including state and federal statutes and any applicable anti-retaliation provisions. Employers should also consider implementing procedures to address employee reports of co-worker or employer wrongdoing. Examples of such procedures include established methods to govern investigations and/or how to implement corrective measures. In addition, employers should remember the main purposes behind whistleblower laws are:

to protect employees who engage in good-faith reporting of employer wrongdoing
and
to encourage employee reporting of employer wrongdoing.

When dealing with whistleblowers, employers should remember the purpose of whistleblower laws and the protections they potentially afford to employees.

Interoffice romance

shannon — Mon, 09 Jun 2014 21:08:39 +0000

A recent poll shows that over 40% of Americans have dated a coworker, making the topic of inter-office romance pretty hard to ignore. While you may be glad that your staff is finding happiness, there are several serious issues that can be brought up when employees start dating and employers should be sure to protect themselves.

Protecting against harassment

One of the biggest concerns with inter-office relationships is harassment. Employers should have a clear anti-harassment policy in place that outlines what behavior is acceptable and unacceptable. Such policies should clearly state that employees are safe from retaliation if they come forth with any harassment claims.

Non-fraternization policies
One option for employers is to completely prohibit relationships at work in order to reduce the risk of sexual harassment and related claims by instituting a "non-fraternization" policy. However, these policies can have negative effects as well. Most likely employees will continue to have relationships and employers won’t have the opportunity to lessen the possible negative results. Also such a strict policy is bad for employee morale as it makes the employer seem overbearing.

Subordinates and managers
Office romances are also problematic when an employee in a position of power dates a subordinate. If the relationship sours, allegations of retaliation or harassment could be made. Even if the relationship goes well, other employees may say the supervisor is showing favoritism. Employers should consider a policy against such relationships, or one that requires employees to disclose these relationships and sign agreements for solutions for if the relationship becomes problematic (i.e. one employee would be transferred).

Love contracts
A consensual relationship agreement, sometimes called a love contract, is a written document signed by two employees in a consensual relationship acknowledging the relationship is voluntary. These disclosures usually contain a reminder of the company's harassment, discrimination, and retaliation policies, as well as a clear acknowledgment that the relationship is consensual. These forms are a good way for employers to remind employees of their policies and protect themselves from future lawsuits.

Prohibiting inappropriate workplace conduct

No matter your stance on inner-office dating, employers should have policies in place outlawing certain behaviors that can make other employees uncomfortable and lead to harassment charges. Employers should have policies which clearly state:

no overt displays of affection at work, including kissing or hand-holding
work communications systems are to be used for work only – no personal email or voice mail using working time or company equipment
employees must behave professionally and in a business-like manner while at work or all company functions
romantic squabbles should be left outside of the workplace.

Click here to order our brand new, all-in-one federal compliance poster for your break room.

Looking for more sample policies and important forms? Click here to gain more access.

Employment law checkup

shannon — Mon, 02 Jun 2014 00:40:51 +0000

Work can get a little hectic sometimes. Running from here to there, meeting after meeting, stressing about a thousand different things – it helps to slow down every once in a while to take an inventory. Here are a few areas we think could benefit from a quick checkup. A few minutes of spot checking could save you a big mess down the line.

Job descriptions

As one of the earliest areas an employer can get themselves into trouble during the employment process, job descriptions need to follow a few rules to be effective. Make sure job descriptions are free of discriminatory language, which can be as innocent as something like "seeking a youthful candidate." Descriptions should also clearly and accurately represent all of the job's true responsibilities as they could be referenced during a potential future lawsuits.

Applications

Similar to job descriptions, applications can get sticky for some employers. Making sure to stick to the necessary information is key. Employment applications should also contain a statement that explains the employer does not discriminate. A simple "[Company] is an Equal Opportunity Employer” can cover a lot of issues.

Performance reviews

When it comes to reviewing employee performance two aspects are essential: documentation and clarity. Reviews are a great way to give employees helpful feedback, but make sure you are doing it consistently, otherwise the benefits may be lost. Reviews can also demonstrate a history of poor performance, which can give an employer some protection in employment-related lawsuits. So make sure you are you are being thorough and maintaining clear records.

Click here to learn more about performance reviews.

Recordkeeping requirements

Are you keeping the right things, in the right places, for the right amount of time? Different forms and information need to be kept for certain lengths of time during and after employment – and in sometimes in specific places, as well. Consult the recordkeeping requirements appendix in your Model Policies and Forms guide for federal and state-specific rules and regulations.

Posting requirements

One way that employers are required to notify their employees of their rights is through employment law posters. In addition to the 6 federal posters, states require posters of their own on varying laws. Additionally, these posters change from time to time, often with little warning. Check the list below to make sure you are using the proper federal posters and check the posting requirements appendix in your Model Policies and Forms guide for state requirements.

Fair Labor Standards Act (FLSA): July 2009
Family and Medical Leave Act (FMLA): February 2013
Job Safety & Health Protection (OSHA): No date, but the most current one has a QR code in the corner (a small black and white symbol)
Employee Polygraph Protection Act (EPPA): June 2012
Uniformed Services Employment and Reemployment Rights Act (USERRA): October 2008
Equal Employment Opportunity (EEOC): November 2009

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Employment references

shannon — Thu, 08 May 2014 20:25:44 +0000

Finding new employees can be stressful. Sure, an applicant will say they are a hardworking overachiever, but are they being honest? That's where reference checks come in. For most positions, it is beneficial for an employer to request and contact previous employers to check on perspective employees as it can protect the employer in any future negligent hiring claims. But what is the right way to get a reference? And what is the right way to give a reference for your own past employees?

Before conducting the check

While there is no law requiring so, an employer should protect themselves by having the applicant sign a broad release before conducting any reference checks. Additionally, employers may be more willing to share information if such a waiver is in place.

Make sure to have a completed application on hand so you can confirm dates of employment and title to make sure the applicant didn't misrepresent themselves.

During the check

While employers may be tempted to gossip or poke for more personal information it is best to stick to the facts. When contacting references, prospective employers should request basic information such as:

dates of employment
job duties
performance assessments
wage history
discipline record
tendency for violence
circumstances surrounding discharge
eligibility for rehire.

The questions asked on the reference check should be specifically job-related and designed to obtain objective information regarding the applicant’s prior job performance.

While employers may not want to share some of this information, employers should make inquiries and take notes in case a negligent hiring claim is brought against them in the future. If the former employer will only provide you with name, former position, and dates of employment, ask if they would rehire the applicant, after all that is the best reference an employer can give.

When giving references

Employers may choose to adopt a policy of providing only “name, rank, and serial number” information about former employees. Under such a policy, employers should decline to volunteer any subjective or undocumented information and provide only the dates of employment and the positions held by the employee to avoid claims of defamation, slander, breach of privacy, or retaliation. Truth is the best defense to any of these claims, so only provide factual, supportable information.

Some employers find it helpful to give references in writing to avoid disclosing too much information. In this case employers should use the same form for each reference given, and stick to the information requested. Such forms can be emailed and then retained in the employee's file. An example is provided below.

Also, employers should make notes of the reference, who it was given to, when, and what was discussed. This information can be helpful in a future lawsuit, and can be kept in the employee's file.

employment reference

Name of applicant:______________________________________________________________________

Stated dates of employment:____________________________________________________________

1. Employed from:____________________________ to _____________________________

2. Reason for termination:__________________________________________________________

3. First job title:_______________________________________ Pay rate_______________

4. Last job title:_______________________________________ Pay rate_______________

5. Description of duties in last position:________________________________________________

6. Eligible for rehire: o Yes o No

If no, why not?__________________________________________________________________

_______________________________________________________________________________

PLEASE RATE THE FOLLOWING:	OUT- STANDING	ABOVE AVERAGE	AVERAGE	BELOW AVERAGE
Skills
Quality of Work
Quantity of Work
Conduct
Attendance

Date:______________________ Signature:________________________________________

Title:_____________________________________________

Company:

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