In an interesting effort to accommodate non-Judeo-Christian public employees, a new Washington law, which took effect on June 12, 2014, gives public employees an additional two unpaid holidays per calendar year "for reasons of faith or conscience." The measure amends RCW 1.16.050, which had granted public employees one paid floating holiday per calendar year in addition setting out the legal holidays recognized by the State of Washington. The new law adds two unpaid holidays allows for accommodation of employees with holy days which do not coincide with state legal holidays. The bullet points of the new law are:
1. Affected Employers. The statute covers employees of the state and its political subdivisions, including all colleges, universities, counties, cities and towns. It also likely extends to municipal corporations such as fire districts and public transit agencies.
2. Covered Absences. The new law covers absences for “a reason of faith or conscience or an organized activity conducted under the auspices of a religious denomination, church, or religious organization.” This definition encompasses religious holidays, services and other activities organized by a religious organization, even if not inherently religious. The statute also applies to employees who desire time off for reasons of “conscience,” thus covering employees who do not belong to organized religions.
3. Denying Requests for Leave. Employers may deny requests for leave under the new law if the absence would impose “an undue hardship,” or if the employee’s presence is necessary to maintain “public safety.”
4. Implementation. Although employers have a previous obligation under the Washington Law Against Discrimination to accommodate employee religious beliefs, this new statute creates a clear entitlement for two unpaid holidays each year. The new law requires that “local government employers” adopt guidelines implementing the new leave entitlement by ordinance or resolution of their legislative authority. Other public employers should implement the statute by adopting guidelines in personnel policies and procedures. These guidelines should explain the process for requesting leave, specifying where the request should be directed, the amount of required advance notice, and the person responsible for evaluating the request.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Showing posts with label Employee Handbooks and Policies. Show all posts
Showing posts with label Employee Handbooks and Policies. Show all posts
Monday, October 13, 2014
Wednesday, June 12, 2013
New Washington Social Media Law Protects Employees’ Accounts
In response to growing issues related to privacy and an employee's online presence, Governor Jay Inslee recently signed s new law making it unlawful for employers to require an employee or applicant to disclose social networking website usernames or passwords, or to force an employee or applicant to add any person to the employee’s list of social networking contacts. This law will become effective July 28.
Washington joins a host of other states that have taken legislative action to protect employee social media accounts. Utah, New Mexico, California, and Michigan have passed similar laws, and more than 20 other states have similar bills pending.
Pertinent aspects of the new Washington law include:
* The law applies to “any person, firm, corporation, or the state of Washington, its political subdivisions, or municipal corporations.” Employers of any size are therefore covered by the law.
* The law specifically states that it does not prohibit an employer from using public domain to obtain information about an employee or applicant Thus, employers may continue to access publicly
available social networking profiles or comments. (Be sure to read up on the articles related specifically to Facebook and LinkedIn or give me a call to discuss some of the other risks and implications related to using even public information.)
* Employer-maintained social networking accounts remain fully accessible and are not impacted by this law. Employers are also still free to enforce existing social media policies that do not conflict with the new law or the National Labor Relations Act.
* Certain workplace investigations are specifically exempt from the new law. When employers are conducting workplace investigations surrounding an employee’s activity on his or her personal social networking account, they are permitted to request content from an employee’s account but are still prohibited from requesting an employee’s login information. Under this narrow exception,
the purpose of the investigation must be to: “(i) ensure compliance with applicable laws, regulatory
requirements, or prohibitions against work-related employee misconduct; or (ii) to investigate an
allegation of unauthorized transfer of an employer’s proprietary information, confidential information, or financial data to the employee’s personal social networking account.”
With this new law in mind, employers whose policies currently require employees or applicants to disclose personal username and passwords should begin implementing a change to those policies. Employers should also train anyone involved in making employment decisions on the new law’s provisions.
If an employer determines that it may need social media content to investigate legal compliance, work-related misconduct, or the improper disclosure of the employer’s proprietary or confidential information, then the law allows employers to request content from personal social media sites. Employers should consider seeking advice of counsel when considering whether such a need exists in a particular situation.
Employers should periodically review their existing social media policies and practices to make sure that they are in compliance with all current laws.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Washington joins a host of other states that have taken legislative action to protect employee social media accounts. Utah, New Mexico, California, and Michigan have passed similar laws, and more than 20 other states have similar bills pending.
Pertinent aspects of the new Washington law include:
* The law applies to “any person, firm, corporation, or the state of Washington, its political subdivisions, or municipal corporations.” Employers of any size are therefore covered by the law.
* The law specifically states that it does not prohibit an employer from using public domain to obtain information about an employee or applicant Thus, employers may continue to access publicly
available social networking profiles or comments. (Be sure to read up on the articles related specifically to Facebook and LinkedIn or give me a call to discuss some of the other risks and implications related to using even public information.)
* Employer-maintained social networking accounts remain fully accessible and are not impacted by this law. Employers are also still free to enforce existing social media policies that do not conflict with the new law or the National Labor Relations Act.
* Certain workplace investigations are specifically exempt from the new law. When employers are conducting workplace investigations surrounding an employee’s activity on his or her personal social networking account, they are permitted to request content from an employee’s account but are still prohibited from requesting an employee’s login information. Under this narrow exception,
the purpose of the investigation must be to: “(i) ensure compliance with applicable laws, regulatory
requirements, or prohibitions against work-related employee misconduct; or (ii) to investigate an
allegation of unauthorized transfer of an employer’s proprietary information, confidential information, or financial data to the employee’s personal social networking account.”
With this new law in mind, employers whose policies currently require employees or applicants to disclose personal username and passwords should begin implementing a change to those policies. Employers should also train anyone involved in making employment decisions on the new law’s provisions.
If an employer determines that it may need social media content to investigate legal compliance, work-related misconduct, or the improper disclosure of the employer’s proprietary or confidential information, then the law allows employers to request content from personal social media sites. Employers should consider seeking advice of counsel when considering whether such a need exists in a particular situation.
Employers should periodically review their existing social media policies and practices to make sure that they are in compliance with all current laws.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Thursday, November 10, 2011
Employee's LinkedIn Recommendation May Put Employer At Risk
Many of us send and receive recommendations on social media sites, such as LinkedIn, from co-workers, vendors, and clients about our work performance or services. Recently, employers have realized that these may be inconsistent with the employer’s policies on neutral references. Worse yet, these recommentdation may even be providing false or fraudulent information. Employers need to take a hard look at their employees’ recommendations on social media.
Employers have long realized that providing negative references for former employees can create liability for defamation. As for positive references, a number of courts have found employers liable who provided false positive references for former employees that employers knew had committed crimes or engaged in other misconduct. As a result, many employers today simply provide neutral references for all former employees (name, former job title, salary, and dates of employment) and they have implemented policies requiring their employees not to make recommendations at all.
Unsanctioned recommendations appearing on social media sites, therefore, can cause complications for employers. Take, for instance, an ill-timed positive reference published by a manager on a social media site extolling his former employee’s honesty while, unbeknownst to the manager, the employer was contemplating litigation against the former employee for taking trade secrets or other confidential business information as he was leaving.
To avoid these and other similar issues, employers should consider taking several steps. Most importantly, employers should amend their written social media or reference policies to address unauthorized employee recommendations and references on social media sites. Depending upon the circumstances, barring employees from making such references may be appropriate. However, this is not always practical or prudent for employers who are encouraging employees to promote their businesses through social media. Under these circumstances then an employer may require instead that employees request authorization from their human resources department or a designated individual such as the Controller or CFO before making references or recommendations.
Simply amending social media and references policies and procedures, however, may be insufficient. Employers need to be vigilant and proactive. Appointing suitable personnel and, if possible, a social media manager to monitor public social media sites to ensure that employees are not violating critical policies is another measure employers should consider. Of course, this must be done in a manner that respects the off-duty rights and protected concerted activities of the employee. See March and November 2011 posts regarding Facebook & the NLRB.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Employers have long realized that providing negative references for former employees can create liability for defamation. As for positive references, a number of courts have found employers liable who provided false positive references for former employees that employers knew had committed crimes or engaged in other misconduct. As a result, many employers today simply provide neutral references for all former employees (name, former job title, salary, and dates of employment) and they have implemented policies requiring their employees not to make recommendations at all.
Unsanctioned recommendations appearing on social media sites, therefore, can cause complications for employers. Take, for instance, an ill-timed positive reference published by a manager on a social media site extolling his former employee’s honesty while, unbeknownst to the manager, the employer was contemplating litigation against the former employee for taking trade secrets or other confidential business information as he was leaving.
To avoid these and other similar issues, employers should consider taking several steps. Most importantly, employers should amend their written social media or reference policies to address unauthorized employee recommendations and references on social media sites. Depending upon the circumstances, barring employees from making such references may be appropriate. However, this is not always practical or prudent for employers who are encouraging employees to promote their businesses through social media. Under these circumstances then an employer may require instead that employees request authorization from their human resources department or a designated individual such as the Controller or CFO before making references or recommendations.
Simply amending social media and references policies and procedures, however, may be insufficient. Employers need to be vigilant and proactive. Appointing suitable personnel and, if possible, a social media manager to monitor public social media sites to ensure that employees are not violating critical policies is another measure employers should consider. Of course, this must be done in a manner that respects the off-duty rights and protected concerted activities of the employee. See March and November 2011 posts regarding Facebook & the NLRB.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Thursday, June 9, 2011
Disabled or Not Disabled: That Is The Question...
When the ADAAA (Americans with Disabilities Amendments Act) went into effect January 1, 2009, the Equal Employment Opportunity Commission (EEOC) was directed to amend the ADA’s implementing regulations to reflect the changes of the new law. On March 25, 2011, those Final Regulations went into effect, changing the focus for employers and accommodations for employees with disabilities.
Perhaps the largest impact of the new law will be that the issue of whether an individual has a “disability” is likely an analysis of the past. The Final Regs make it clear that the focus must shift to whether there has actually been a violation of the ADAAA, rather than whether an individual is merely protected by the ADAAA.
My clients are inquiring about other aspects of the ADAAA and the New Regs as well. Here are some of the more common inquiries:
Q: We have a small company. Are we required to comply with the ADAAA?
A: Like the ADA, the ADAAA and the Final Regs apply to all private companies with 15 or more employees. It is important to note, however, that state statutes protecting individuals with disabilities may apply to companies with as few as one employee and are often interpreted in much the same way as their federal counterpart. So, for example, under the Washington Law Against Discrimination, the employer need only employ 8 individuals and, if the situation involves a termination related to a disability, state common law basically removes the WLAD from the analysis.
Q: How does the ADAAA affect courts’ and the EEOC’s interpretations of the ADA?
A: When Congress enacted the ADAAA, it rejected both the EEOC’s and many courts’ narrow interpretations of the term “disability.” Under the Final Regulations, individuals who wish to seek the law’s protection will be able to much more easily demonstrate that they have a “disability.” As a result, the EEOC anticipates that the focus of ADA claims will shift to the merits of the case itself, rather than an analysis of the threshold question of whether a particular individual can satisfy the definition of the term “disability.” Thia is a huge shift in how employers should approach disability accommodations.
Q: How is “disability” defined under the Final Regulations?
A: The ADAAA and the Final Regs define “disability” as follows:
1. A physical or mental impairment that “substantially limits” one or more major life activities (i.e., an “actual” disability), or
2. A record of a physical or mental impairment that “substantially limited” a major life activity (i.e., a “record of” a disability), or 3. When an individual is subjected to an employment action prohibited by the ADA because of an actual or perceived impairment, regardless of whether that impairment “substantially limits” a major life activity (i.e., “regarded as” having a disability).
Q: How do the Final Regs define “major life activities”?
A: The ADAAA includes a specific (but non-exhaustive) list of “major life activities,” including seeing, hearing, eating, sleeping, walking, standing, sitting, breathing, learning and reading, as well as “major bodily functions.” The EEOC’s Final Regs go even further, including a non-exhaustive list that is more expansive than that found in the text of the ADAAA, including sitting, reaching, interacting with others and “operation of an individual organ within a body system.”
Q: Do the Final Regs offer any guidance regarding what it means for an impairment to “substantially limit” a major life activity?
A: Just as the ADAAA expanded the definition of “major life activities,” it also expanded the definition of “substantially limits.” The Final Regs set forth “rules of construction” to be applied when determining whether an impairment “substantially limits” a major life activity, including the following:
1. The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts.
2. An impairment does not need to prevent or significantly restrict a major life activity to be considered “substantially limiting.” However, not every impairment will constitute a “disability.”
3. The term “substantially limits” should be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
4. The determination of whether an impairment “substantially limits” a major life activity requires an individualized assessment, just as it did under the ADA.
5. With one exception (ordinary eyeglasses or contact lenses), the determination of whether an impairment “substantially limits” a major life activity must be made without regard to the ameliorative effects of mitigating measures, such as medication, hearing aids and prosthetic limbs.
6. An impairment that is episodic (such as epilepsy, hypertension, asthma, diabetes or major depressive disorder) or in remission is a “disability” if it would “substantially limit” a major life activity when active.
7. In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of whether an individual has a “disability” should not require extensive analysis.
With these changes in mind, employers should shift their focus to the following main considerations:
1. Engaging in an interactive process with an individual who asks for reasonable accommodation,
2. Documenting the interactive process, all accommodations requested and made, and any assessment that the accommodation requested by the individual poses an undue hardship, and
3. Documenting legitimate, non-discriminatory reasons for adverse actions in employment (e.g., terminations and demotions).
Perhaps the largest impact of the new law will be that the issue of whether an individual has a “disability” is likely an analysis of the past. The Final Regs make it clear that the focus must shift to whether there has actually been a violation of the ADAAA, rather than whether an individual is merely protected by the ADAAA.
My clients are inquiring about other aspects of the ADAAA and the New Regs as well. Here are some of the more common inquiries:
Q: We have a small company. Are we required to comply with the ADAAA?
A: Like the ADA, the ADAAA and the Final Regs apply to all private companies with 15 or more employees. It is important to note, however, that state statutes protecting individuals with disabilities may apply to companies with as few as one employee and are often interpreted in much the same way as their federal counterpart. So, for example, under the Washington Law Against Discrimination, the employer need only employ 8 individuals and, if the situation involves a termination related to a disability, state common law basically removes the WLAD from the analysis.
Q: How does the ADAAA affect courts’ and the EEOC’s interpretations of the ADA?
A: When Congress enacted the ADAAA, it rejected both the EEOC’s and many courts’ narrow interpretations of the term “disability.” Under the Final Regulations, individuals who wish to seek the law’s protection will be able to much more easily demonstrate that they have a “disability.” As a result, the EEOC anticipates that the focus of ADA claims will shift to the merits of the case itself, rather than an analysis of the threshold question of whether a particular individual can satisfy the definition of the term “disability.” Thia is a huge shift in how employers should approach disability accommodations.
Q: How is “disability” defined under the Final Regulations?
A: The ADAAA and the Final Regs define “disability” as follows:
1. A physical or mental impairment that “substantially limits” one or more major life activities (i.e., an “actual” disability), or
2. A record of a physical or mental impairment that “substantially limited” a major life activity (i.e., a “record of” a disability), or 3. When an individual is subjected to an employment action prohibited by the ADA because of an actual or perceived impairment, regardless of whether that impairment “substantially limits” a major life activity (i.e., “regarded as” having a disability).
Q: How do the Final Regs define “major life activities”?
A: The ADAAA includes a specific (but non-exhaustive) list of “major life activities,” including seeing, hearing, eating, sleeping, walking, standing, sitting, breathing, learning and reading, as well as “major bodily functions.” The EEOC’s Final Regs go even further, including a non-exhaustive list that is more expansive than that found in the text of the ADAAA, including sitting, reaching, interacting with others and “operation of an individual organ within a body system.”
Q: Do the Final Regs offer any guidance regarding what it means for an impairment to “substantially limit” a major life activity?
A: Just as the ADAAA expanded the definition of “major life activities,” it also expanded the definition of “substantially limits.” The Final Regs set forth “rules of construction” to be applied when determining whether an impairment “substantially limits” a major life activity, including the following:
1. The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts.
2. An impairment does not need to prevent or significantly restrict a major life activity to be considered “substantially limiting.” However, not every impairment will constitute a “disability.”
3. The term “substantially limits” should be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
4. The determination of whether an impairment “substantially limits” a major life activity requires an individualized assessment, just as it did under the ADA.
5. With one exception (ordinary eyeglasses or contact lenses), the determination of whether an impairment “substantially limits” a major life activity must be made without regard to the ameliorative effects of mitigating measures, such as medication, hearing aids and prosthetic limbs.
6. An impairment that is episodic (such as epilepsy, hypertension, asthma, diabetes or major depressive disorder) or in remission is a “disability” if it would “substantially limit” a major life activity when active.
7. In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of whether an individual has a “disability” should not require extensive analysis.
With these changes in mind, employers should shift their focus to the following main considerations:
1. Engaging in an interactive process with an individual who asks for reasonable accommodation,
2. Documenting the interactive process, all accommodations requested and made, and any assessment that the accommodation requested by the individual poses an undue hardship, and
3. Documenting legitimate, non-discriminatory reasons for adverse actions in employment (e.g., terminations and demotions).
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Tuesday, March 1, 2011
Can An Employee Be Fired For Calling Her Employer A 'Scumbag' on Facebook?
The answer is not as obvious as previously believed. On Feb. 7, 2011, the National Labor Relations Board (NLRB) and American Medical Response of Connecticut, Inc. (AMR) settled a charge related to this very issue. The fact of settlement is a signal to employers that their social media policies need to be clearly communicated and in compliance with NLRB regulations.
In this matter, an AMR employee posted derogatory comments about her employer on Facebook from her home computer. Specifically, she referred to her supervisor as a “scumbag” and compared AMR management to psychiatric patients. AMR fired the employee citing its policy prohibiting employees from disparaging the company or commenting on the company online without permission.
The NLRB characterized AMR’s nondisparagement policy as “overbroad” because it potentially infringed on an employee’s right to discuss working conditions with other employees. Such a restraint on employee activity is prohibited under federal labor law. The NLRB also claimed that AMR’s termination of the employee was illegal because she was complaining about the general terms and conditions of her employment and her co-workers had been prompted by her posting to respond.
The NLRB considers such “water cooler conversations” about shared working conditions “protected concerted activity.” For an employer this means that Facebook complaints may be deemed protected speech – especially where more than one employee is involved in the “conversation.” The NLRB’s position is that taking adverse action against an employee under such circumstances is unlawful. This means that “overly broad” social media policies create potential liability for employers under the NLRB.
Under the terms of the settlement, the company agreed to revise its social media policy to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. Because part of the allegation was that the employee was denied union representation during an investigatory interview before she posted the Facebook comments at issue, AMR also agreed that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-facebook-comments
The lesson from this case is to consider whether your company’s social media policy restricts off-duty conduct. Relevant case law suggests that employers need to be cautious when attempting to restrict what an employee can or cannot say about the company off-the-job. One key suggestion is to avoid policies that overrun areas where employees have a high expectation of privacy (e.g., personal e-mail and password-protected Web pages like Facebook). Also avoid penalizing employees for engaging in protected concerted activity (e.g., discussing working conditions with co-workers, no matter the forum). Importantly, a policy prohibiting employees from denigrating the employer’s product or services on a social media website would likely be enforceable.
Remember that a policy addressing employee use of social media is not a “one-size-fits-all” endeavor and if you are using a handbook found online it is vital to review it with an eye towards the ever-changing laws on these issues. I advise my clients to ensure that an experienced employment lawyer reviews their handbooks. Your social media policy is not the only policy that may be subject to legal constraints. Different employers bring different legal considerations to that review and the lawyer reviewing your handbook needs to be well-versed in those considerations.
As always, any policy should reflect the unique needs and values of the company and its core values and mission statement. These tend to set the tone for the employer-employee relationship and the social media policy should reflect these ideals just like every other policy in your handbook.
Finally, consider how the policy will be communicated to employees. Ensure that employees and supervisors are educated about the new policy and provide training, if needed. Review the policy on a regular basis to make sure it effectively addresses the world of social media and its evolving landscape.
In this matter, an AMR employee posted derogatory comments about her employer on Facebook from her home computer. Specifically, she referred to her supervisor as a “scumbag” and compared AMR management to psychiatric patients. AMR fired the employee citing its policy prohibiting employees from disparaging the company or commenting on the company online without permission.
The NLRB characterized AMR’s nondisparagement policy as “overbroad” because it potentially infringed on an employee’s right to discuss working conditions with other employees. Such a restraint on employee activity is prohibited under federal labor law. The NLRB also claimed that AMR’s termination of the employee was illegal because she was complaining about the general terms and conditions of her employment and her co-workers had been prompted by her posting to respond.
The NLRB considers such “water cooler conversations” about shared working conditions “protected concerted activity.” For an employer this means that Facebook complaints may be deemed protected speech – especially where more than one employee is involved in the “conversation.” The NLRB’s position is that taking adverse action against an employee under such circumstances is unlawful. This means that “overly broad” social media policies create potential liability for employers under the NLRB.
Under the terms of the settlement, the company agreed to revise its social media policy to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. Because part of the allegation was that the employee was denied union representation during an investigatory interview before she posted the Facebook comments at issue, AMR also agreed that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-facebook-comments
The lesson from this case is to consider whether your company’s social media policy restricts off-duty conduct. Relevant case law suggests that employers need to be cautious when attempting to restrict what an employee can or cannot say about the company off-the-job. One key suggestion is to avoid policies that overrun areas where employees have a high expectation of privacy (e.g., personal e-mail and password-protected Web pages like Facebook). Also avoid penalizing employees for engaging in protected concerted activity (e.g., discussing working conditions with co-workers, no matter the forum). Importantly, a policy prohibiting employees from denigrating the employer’s product or services on a social media website would likely be enforceable.
Remember that a policy addressing employee use of social media is not a “one-size-fits-all” endeavor and if you are using a handbook found online it is vital to review it with an eye towards the ever-changing laws on these issues. I advise my clients to ensure that an experienced employment lawyer reviews their handbooks. Your social media policy is not the only policy that may be subject to legal constraints. Different employers bring different legal considerations to that review and the lawyer reviewing your handbook needs to be well-versed in those considerations.
As always, any policy should reflect the unique needs and values of the company and its core values and mission statement. These tend to set the tone for the employer-employee relationship and the social media policy should reflect these ideals just like every other policy in your handbook.
Finally, consider how the policy will be communicated to employees. Ensure that employees and supervisors are educated about the new policy and provide training, if needed. Review the policy on a regular basis to make sure it effectively addresses the world of social media and its evolving landscape.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Sunday, February 6, 2011
Protecting The Health of Your Practice: A Note From An HR (Juris) Doctor
I am an attorney. That said, the thought of putting together a will or providing advice on the impact of a bankruptcy strikes fear in my heart. I know just enough about those areas of law to be dangerous. The area of expertise on which I focus is employment law. When a friend or client asks me for guidance outside of my practice area, I tell them they are asking a foot doctor to practice brain surgery and refer them to an appropriate specialist.
Over the years, I have had a surprisingly high number of law firms and solo practitioners as clients. Unfortunately, every one of them has come to me after an issue has arisen. Each has been focused on practicing law. Along the way, though, they have forgotten that they are also managing a business and, consequently, employees. Perhaps they have just enough knowledge of employment law to be dangerous or, perhaps, the issues never occurred to them. Each made mistakes that could have been avoided with a little preventive care.
● Wage and Hour Laws. The most prevalent mistake my law firm-clients have made is no different from the mistake many employers make; they did not consider the implications of wage and hour laws on their business. Too many are paying a paralegal and/or an office administrator a “salary” and presuming that this covers any overtime pay requirements. This mistake has the potential to sneak up on them in one of two painful ways. Either the employee becomes disgruntled and sues, or, on a more frequent basis, the Department of Labor & Industries conducts an audit. The Department then demands fines and back payment of all the taxes that should have been paying into the system all those years. Then the auditor usually refers the matter to his counterpart at the Department of Revenue where this agonizing process starts all over again.
● Employment Contracts. The number of law firms that have “employment contracts” with associates continually surprises me. An employment contract is no different from any other contract; there are financial repercussions if it is breached. But in the employment arena, an employment contract is rarely necessary and, if not thought out thoroughly, can cost the firm both financially and emotionally. An employment relationship can generally be governed at the employer’s discretion. But if there is a contract, it takes on the characteristics of a business relationship and the employer has signed away a host of rights. Granted, there are occasions when a contract is to the benefit of both parties. I worked for a number of years at a general practice firm and, on occasion, a corporate lawyer negotiating a deal would think to have one of us in the employment law department review the executives’ contracts. There was always astonishment at the number of revisions we made. With our different practice focus comes knowledge of a variety of potential prognoses that should be considered.
● Handbook and Performance Reviews. Once a lawyer-client told me that he thought he should avoid documentation whenever possible. Documentation is, however, the best friend of anyone handling HR issues. Just like having a contract at the outset of a partnership gives all of the parties notice of the expectations of that relationship, a well‑formed handbook notifies employees of their employer’s expectations. Well‑written performance reviews are notice of whether the employee is meeting those expectations at various points along the way. Further, documentation is proof: proof of performance issues, proof of communication, proof of the relationship and its struggles and triumphs.
These are some of the most prevalent HR gaffes I have seen when working with small employers. There are others but most, if not all, are avoidable. Most can be resolved with minimal pain via consultation with an employment law practitioner. The good news is that a little preventive care can protect what you are working so hard to accomplish: a strong and healthy business.
Over the years, I have had a surprisingly high number of law firms and solo practitioners as clients. Unfortunately, every one of them has come to me after an issue has arisen. Each has been focused on practicing law. Along the way, though, they have forgotten that they are also managing a business and, consequently, employees. Perhaps they have just enough knowledge of employment law to be dangerous or, perhaps, the issues never occurred to them. Each made mistakes that could have been avoided with a little preventive care.
● Wage and Hour Laws. The most prevalent mistake my law firm-clients have made is no different from the mistake many employers make; they did not consider the implications of wage and hour laws on their business. Too many are paying a paralegal and/or an office administrator a “salary” and presuming that this covers any overtime pay requirements. This mistake has the potential to sneak up on them in one of two painful ways. Either the employee becomes disgruntled and sues, or, on a more frequent basis, the Department of Labor & Industries conducts an audit. The Department then demands fines and back payment of all the taxes that should have been paying into the system all those years. Then the auditor usually refers the matter to his counterpart at the Department of Revenue where this agonizing process starts all over again.
● Employment Contracts. The number of law firms that have “employment contracts” with associates continually surprises me. An employment contract is no different from any other contract; there are financial repercussions if it is breached. But in the employment arena, an employment contract is rarely necessary and, if not thought out thoroughly, can cost the firm both financially and emotionally. An employment relationship can generally be governed at the employer’s discretion. But if there is a contract, it takes on the characteristics of a business relationship and the employer has signed away a host of rights. Granted, there are occasions when a contract is to the benefit of both parties. I worked for a number of years at a general practice firm and, on occasion, a corporate lawyer negotiating a deal would think to have one of us in the employment law department review the executives’ contracts. There was always astonishment at the number of revisions we made. With our different practice focus comes knowledge of a variety of potential prognoses that should be considered.
● Handbook and Performance Reviews. Once a lawyer-client told me that he thought he should avoid documentation whenever possible. Documentation is, however, the best friend of anyone handling HR issues. Just like having a contract at the outset of a partnership gives all of the parties notice of the expectations of that relationship, a well‑formed handbook notifies employees of their employer’s expectations. Well‑written performance reviews are notice of whether the employee is meeting those expectations at various points along the way. Further, documentation is proof: proof of performance issues, proof of communication, proof of the relationship and its struggles and triumphs.
These are some of the most prevalent HR gaffes I have seen when working with small employers. There are others but most, if not all, are avoidable. Most can be resolved with minimal pain via consultation with an employment law practitioner. The good news is that a little preventive care can protect what you are working so hard to accomplish: a strong and healthy business.
Sunday, January 9, 2011
Smart Management Article Published In Yarn Market News
I’m excited to say that industry magazine, Yarn Market News, published my article on employee handbooks and policies in the Smart Management column of their January 2011 issue. The article is accessible only to subscribers to the magazine but I’m re-publishing excerpts of it here:
You were sitting in your favorite coffee shop, dreaming of turning your passion into a business. You decided to open a yarn shop, a place where people who shared your love of knitting could gather. Your shop would be a part of the community, just like that coffee shop. You would create a place with a creative and unique ambiance. You dreamed of finding the perfect location, the yarn you would carry, the classes you would offer, and the displays that would set your shop apart.
I would lay odds that you never imagined that your dream would also include the amount of personnel management that it does. If you are lucky enough to be like Lauren Lindeman, of So Much Yarn in Seattle, most of your employees have been good fits with your shop. Lindeman says that she usually knows her employees in some other capacity before they are hired on. She describes her shop as “small enough that we are like a family at home where everyone knows the rules.” Still, Lindeman feels that having written policies would help with the smooth operation of her shop and that this would save her time in the long run. Also, as an employer, you want to have some control over how the job is performed and how an employee conducts herself. In the absence of written policies, the employment relationship is often an improvisation. Essentially, you make up your policies as situations arise, or, more likely, after they have arisen.
For these reasons, I encourage clients to be proactive and do the minimal work involved in putting together a few key documents before they need them. The most important of these documents is an employment handbook. When I use the term “handbook” I sometimes get resistance. Many employers, especially in a cottage industry, do not want to “corporatize” their workplace. They feel a handbook is part of a workplace culture that they want to avoid. Do not avoid it simply because you do not like what it connotes. Instead have policies that are in tune with your workplace culture.
I work with my clients to create handbooks that are personal to their workplace. It is important that their policies reflect their approach to managing employees. Together we consider the practical implications of each policy. We also discuss the federal and state laws that are applicable to their business.
One of the problems with a one size fits all template that you might find online is that it is not state specific nor is it necessarily appropriate for your business. I recommend to my clients that they find basic policies online but spend the extra funds to have an attorney spend an hour or two tailor them. Be certain he or she is an employment attorney who is fully versed in the state laws that are pertinent to you. Every state has its own workplace laws and many of these are only applicable to your business if you have a specific number of employees.
Managing employees seems like a secondary priority when you are focused on running your business. But when the first employee issue happens, and it will, you may find that it could have been avoided by written policies. The following policies are among the most important to include.
Disclaimer. One danger of written employment policies is that your employees can “reasonably rely” on promises you make. A court can then find that your handbook is a contract with your employees. For this reason, expressly state that your handbook is not a contract and does not constitute a specific promise in any specific circumstance. Also leave yourself some “wiggle room.” Always give yourself the right to apply your policies as you see fit.
Code of Conduct. I recommend having a code of conduct policy. It can be a simple expectation of common sense, honesty and respect. Or it can be a detailed list of prohibited conduct like theft, workplace violence, and harassment. Lindeman says that the primary employee issue she has come up against is employee attitude. For Lauren, I would recommend a clear policy on the expected demeanor and deportment of her employees. No matter how you approach it, leave yourself the discretion to address any issue that might arise; you cannot anticipate everything so give yourself the flexibility to decide what discipline may be necessary in every situation.
Anti-Harassment and Anti-Discrimination. An employer who exercises “reasonable care” to avoid harassment and provides employees with ways to address harassment has an affirmative defense when a complaining employee fails to take advantage of the employer’s safeguards. A written policy stating how seriously you take harassment is an important part of establishing that defense and your workplace culture. Include the email address and cell phone number of at least one senior manager to make it as easy as possible for an employee to make their complaint.
Whichever policies you decide are most appropriate for your shop, be certain to give yourself the right to change them if and when you see fit. You will find that a good handbook gives you some “authority” when you sit down with the employee who does need performance coaching.
Simultaneously, a handbook gives your employees a greater sense of security and professionalism. Finally, it allows you to spend less time answering questions and explaining yourself, and more time doing what you love most, running your business.
You were sitting in your favorite coffee shop, dreaming of turning your passion into a business. You decided to open a yarn shop, a place where people who shared your love of knitting could gather. Your shop would be a part of the community, just like that coffee shop. You would create a place with a creative and unique ambiance. You dreamed of finding the perfect location, the yarn you would carry, the classes you would offer, and the displays that would set your shop apart.
I would lay odds that you never imagined that your dream would also include the amount of personnel management that it does. If you are lucky enough to be like Lauren Lindeman, of So Much Yarn in Seattle, most of your employees have been good fits with your shop. Lindeman says that she usually knows her employees in some other capacity before they are hired on. She describes her shop as “small enough that we are like a family at home where everyone knows the rules.” Still, Lindeman feels that having written policies would help with the smooth operation of her shop and that this would save her time in the long run. Also, as an employer, you want to have some control over how the job is performed and how an employee conducts herself. In the absence of written policies, the employment relationship is often an improvisation. Essentially, you make up your policies as situations arise, or, more likely, after they have arisen.
For these reasons, I encourage clients to be proactive and do the minimal work involved in putting together a few key documents before they need them. The most important of these documents is an employment handbook. When I use the term “handbook” I sometimes get resistance. Many employers, especially in a cottage industry, do not want to “corporatize” their workplace. They feel a handbook is part of a workplace culture that they want to avoid. Do not avoid it simply because you do not like what it connotes. Instead have policies that are in tune with your workplace culture.
I work with my clients to create handbooks that are personal to their workplace. It is important that their policies reflect their approach to managing employees. Together we consider the practical implications of each policy. We also discuss the federal and state laws that are applicable to their business.
One of the problems with a one size fits all template that you might find online is that it is not state specific nor is it necessarily appropriate for your business. I recommend to my clients that they find basic policies online but spend the extra funds to have an attorney spend an hour or two tailor them. Be certain he or she is an employment attorney who is fully versed in the state laws that are pertinent to you. Every state has its own workplace laws and many of these are only applicable to your business if you have a specific number of employees.
Managing employees seems like a secondary priority when you are focused on running your business. But when the first employee issue happens, and it will, you may find that it could have been avoided by written policies. The following policies are among the most important to include.
Disclaimer. One danger of written employment policies is that your employees can “reasonably rely” on promises you make. A court can then find that your handbook is a contract with your employees. For this reason, expressly state that your handbook is not a contract and does not constitute a specific promise in any specific circumstance. Also leave yourself some “wiggle room.” Always give yourself the right to apply your policies as you see fit.
Code of Conduct. I recommend having a code of conduct policy. It can be a simple expectation of common sense, honesty and respect. Or it can be a detailed list of prohibited conduct like theft, workplace violence, and harassment. Lindeman says that the primary employee issue she has come up against is employee attitude. For Lauren, I would recommend a clear policy on the expected demeanor and deportment of her employees. No matter how you approach it, leave yourself the discretion to address any issue that might arise; you cannot anticipate everything so give yourself the flexibility to decide what discipline may be necessary in every situation.
Anti-Harassment and Anti-Discrimination. An employer who exercises “reasonable care” to avoid harassment and provides employees with ways to address harassment has an affirmative defense when a complaining employee fails to take advantage of the employer’s safeguards. A written policy stating how seriously you take harassment is an important part of establishing that defense and your workplace culture. Include the email address and cell phone number of at least one senior manager to make it as easy as possible for an employee to make their complaint.
Whichever policies you decide are most appropriate for your shop, be certain to give yourself the right to change them if and when you see fit. You will find that a good handbook gives you some “authority” when you sit down with the employee who does need performance coaching.
Simultaneously, a handbook gives your employees a greater sense of security and professionalism. Finally, it allows you to spend less time answering questions and explaining yourself, and more time doing what you love most, running your business.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
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