Employment Law Updates

TAKE AFFIRMATIVE STEPS TO STAVE OFF EMPLOYEE FRAUD

Even in the best of economic times, employees defraud their employers.  When times are tough, like now, the incentive to take from one’s employer is even greater.  To minimize your company’s exposure to fraud from within, Leah DiGregorio, a Portland CPA, suggests taking the following steps: (1) implement and monitor internal controls to create an environment where the opportunity for fraud is minimized; (2) be alert to the pressures and rationalizations employees may experience like the loss of a spouse’s job or addiction or gambling problems; and (3) look for fraud warning signs like rising costs without explanation, an employee with too much control, or an employee who is unwilling to share duties.  A vigilant, proactive approach to employee fraud could save your company thousands if not millions of dollars.   

EMPLOYERS MAY BE SUED FOR EMPLOYEE’S CELL PHONE USE

Did you know that your company could be held liable for an accident caused by an employee’s use of a cell phone while driving?  Several such cases settled recently for millions of dollars each.  All of those cases were premised on the rule that an employer can be held liable for damages if an employee injures someone in a vehicular accident while using a cell phone, even if the employee was using her own phone or making a personal call.  Not only is the use of a cell phone while driving a proven hazard, it can have severe financial consequences for your company.  Accordingly, employers should strictly prohibit the use of cell phones while driving company vehicles and/or on company time. 

DO YOUR WRITTEN POLICIES ACCURATELY REFLECT YOUR PRACTICES?

Has this ever happened to you?  You know your written policy is detailed and straight-forward, but you (or one of your management staff) choose to make an exception to the policy because it may be easier, less confrontational, or it just seems like the right thing to do. 

It is important to remember that an employer’s written policies are only enforceable if its day-to-day practices comply with those policies.  A company can essentially amend or modify its written policies through conduct, especially when those policies are consistently ignored.  In a recent court opinion, the Ninth Circuit Court of Appeals determined that a supervisor’s consistent deviation from the employer’s written policy modified the employer’s written policy – even though the written policy was clear, the supervisor had no official authority to make policy, and the supervisor’s manager was unaware that the supervisor was not following the policy.

To avoid getting caught in this situation, it is important that your written policies are consistent with your true day-to-day practices.  It is also vital that supervisors are aware of the company’s written policies and why they must act consistently with those policies.

MYTH BUSTER: THE NATIONAL LABOR RELATIONS ACT DOES NOT AFFECT NON-UNION EMPLOYERS

It is a widely-held belief that non-union employers are not impacted by the National Labor Relations Act (“NLRA”).  In fact, the NLRA protects both non-union and union employees against discrimination based on protected concerted activities.  Examples of protected concerted activities include:

·     Two or more employees approaching their employer about improving their working conditions and pay;

·     One employee speaking to his employer on behalf of himself and one or more co-workers about improving workplace conditions; and

·     Two or more employees discussing pay or other work-related issues with each other. 

Employers who prohibit this type of conduct are in violation of the NLRA, regardless of whether the workforce is unionized.  When drafting policies as well as defining acceptable and unacceptable work behavior, keep in mind that employees engaged in protected concerted activities cannot be disciplined or terminated for that behavior.  Because of the complexities surrounding the NLRA, and because even a good faith violation can result in liability, you should always consult with your employment attorney if you have any questions regarding this complicated area of the law.

AN EMPLOYEE POLICY HANDBOOK – WHO NEEDS IT?

You run a small operation – fewer than 50 employees. The business has been run the same way for years. You have low turnover, and your employees appear to work well together. Why would you need a policy manual? Wouldn’t written policies only serve to make the workplace more rigid and complicated?

Granted, an employee handbook may give the appearance of an employment contract even when it contains a disclaimer explaining that employment is at-will (meaning that employment can be terminated by either party at any time for any nondiscriminatory reason.)  And having policies stated in writing does give your business something to live up to. However, consider the following:

An employment contract may already exist. That’s right, juries in some wrongful termination lawsuits have decided in favor of employees who contend that their employers made oral promises to the employees that constituted an employment contract. If your policies are in writing, you have some leverage against claims that your company made oral promises that are contrary to your written policies. Furthermore, communicating policies orally inevitably leads to inconsistent application, which can translate to charges of discrimination.

Your employees deserve to know what to expect. From a practical point of view, a written policy manual provides your employees with a clear and reliable source for workplace rules. For example, a policy manual answers questions such as “What time does the boss expect me at work?” “When do I get paid?” “What should I wear?” “What holidays are recognized?” “What conduct is likely to get me fired?” “Do I have any recourse when a decision seems unfair?” A manual also clarifies the employer’s expectations, so that when the employee’s conduct falls short of those expectations, the consequences should come as no surprise to the employee. In other words, understanding those expectations gives the employee a better opportunity to succeed in the workplace. Clear policies that are applied consistently also contribute to employee morale and, in turn, increase productivity.

A policy manual benefits the employer as well. For example, a handbook establishes and defines the kind of work environment the employer wishes to build, the prevailing management style, and the spirit of the enterprise. When creating a policy manual, the employer is required to think about what the manual conveys about the employer’s business.

A policy manual also provides an employer with a setting in which to make important statements concerning at-will employment, the authority of the company to change the terms of employment at any time, and the nonbinding nature of published policies. Disclaimers located prominently in the policy manual can also prevent misunderstandings about the nature of the employment relationship that may have been communicated in less formal ways.

A manual can showcase policies of nondiscrimination and anti-harassment. Not only does publication of such policies help prevent discrimination by putting employees on notice, it can also constitute a defense to some discrimination claims and help reduce damages in instances where discrimination occurred.

Finally, a manual helps protect the enterprise by clearly articulating the company’s expectations regarding confidential information about clients, operations, finances and trade secrets; the use of drugs and alcohol; and electronic communications.

Why consult an attorney about your policy manual? You may be convinced that your business would benefit from a policy manual, but you believe you can develop one on your own. After all, you know your business better than anyone else does. However, there are several dangers in writing your own policy manual or adopting someone else’s.

First, whatever is written may be construed as a contract made with the employee. While you want to define your enterprise and the work environment you wish to create, your interests would not be served by unwittingly creating a contract you cannot uphold. An employment law specialist can identify statements that bind your business in ways you do not intend by helping you choose language carefully and inserting the appropriate disclaimers. Additionally, your legal specialist has the experience necessary to analyze the contents of the manual for policies that could lead to sticky real-life situations. A comprehensive legal review will include a search for pesky buzz words that have one meaning in everyday usage and another after an employee has filed a lawsuit. Finally, your attorney can make sure your manual complies with the state and federal laws applicable to your business.

An expensive proposition? The cost may be less than you think, and will undoubtedly pay off in employee relations.

HELICOPTER PARENTS LAND AT HR

Parents who have hovered over their children into their college years are showing up at recruitment fairs and job interviews, and employers are feeling the pressure:  HR managers are reporting that parents are calling companies to ask recruiters to hire their 20-something children; and candidates are stalling on job offers specifically to buy time to consult with their parents, who then call the employer to renegotiate offer packages.  Later, parents will call to protest negative comments on their offspring’s evaluations, or inject themselves into harassment investigations.  In most situations, calls from parents should be handled by reminding the parent that the company has an employment relationship with their “child” and that information surrounding that relationship is confidential.

WHAT A PHOTO IS WORTH . . .

Employers are not legally obligated to keep photographs of their employees on file, yet doing so may help protect against workplace violence.  For example, a local employer recently had to deal with a very serious workplace violence issue involving an employee who had pulled a handgun on another employee.  The employer maintained a copy of the assailant’s driver’s license on file, and was therefore able to immediately provide a photograph of the employee to the police, rather than offering a verbal description.  The photograph was also available to security officers who were subsequently hired to monitor the company property.  If you currently require identification badges or other security measures, consider preserving electronic or hard copies of your employees’ photographs in a readily accessible (but protected) location.  In a time-sensitive situation, it may prevent the need for a thousand words.