Santa Claus, The Employee

My annual re-post of a very clever article analyzing the FLSA and Jolly Ol' Saint Nick, by Natalie F. Hrubos, an attorney in the Philadelphia office of Duane Morris. The original article can be found here: http://www.duanemorris.com/articles/santa_and_the_FLSA_4698.html

Delivering presents to the well-behaved children all over the world in a single night is hard work. Sure, Santa Claus makes it look easy with his jolly disposition, magical sleigh and team of eight flying reindeer. But does that mean he is any less entitled to compensation? Of course not! Let's just assume that Santa's employer—the North Pole, obviously—is covered by the Fair Labor Standards Act (FLSA). To comply with the law, the North Pole, like any other employer, has to ask itself certain questions.

First, is Santa's position exempt or nonexempt? There's no doubt that Santa works more than 40 hours per week during the holiday season. Think of all the letters pouring in from kids across the globe. Think of how much time it takes to figure out who's been naughty and who's been nice. The guy sees you when you're sleeping. If Santa's nonexempt, the North Pole owes him some serious overtime.

Santa may qualify for one of the FLSA's white-collar exemptions. For instance, Santa likely meets the duties test of the executive exemption if his primary duty is managing the North Pole enterprise: He customarily and regularly directs the work of at least two or more full-time elves, and he has the authority to make employment decisions, such as when to promote someone to lead reindeer. But if it's really Mrs. Claus and the head elf who perform these duties, then Santa likely does not qualify for the executive exemption.

Santa may, however, qualify for the administrative exemption. He probably meets the duties test for this exemption if his primary duty is the performance of office or non-manual work that is directly related to the management of the North Pole or its general business operations and if his work involves the exercise of discretion and independent judgment with respect to matters of significance.

Who goes on what list (naughty or nice) is certainly a matter of significance for the North Pole. But how clean must a child's bedroom be to earn her a spot on the nice list? How often must she share her toys with her siblings? And what if she tells the truth most, but not all, of the time? Santa necessarily uses his discretion and independent judgment when making these determinations.

That said, to qualify for the exemption, Santa's primary duty must be the performance of office or non-manual work. Traveling from house to house, sliding down chimneys and placing presents under Christmas trees would surely be considered nonexempt, manual work. But Santa does that only one night per year. Responding to letters from children could qualify as office work, but is that Santa's primary duty and is it directly related to the running or servicing of the North Pole's business? If either answer is "No," Santa may not qualify for the administrative exemption.

The reality is that even though the North Pole may pay Santa on a salary rather than an hourly basis, that doesn't mean Santa qualifies as exempt from the FLSA. If he doesn't meet the duties test for one of the FLSA exemptions, Santa is nonexempt and must be paid overtime compensation for every hour he works over 40 hours per week.

If Santa's position is nonexempt, then his Christmas Eve responsibilities present a number of additional compensation issues, such as whether the North Pole has to provide and/or pay Santa for his milk-and-cookie breaks; whether Santa is "on the clock" when he's using his iPhone to check in with the head elf; and whether his travel time to and from the North Pole and from house to house is compensable.

In some cases, the law of the North Pole may be more restrictive than the FLSA, and Santa's employer will be required to comply with whichever law is more beneficial to employees. The same is true with state law. For example, if a certain state requires employers to provide meal breaks, an employer is required to comply with the state law even though federal law does not impose such a requirement.

It doesn't take three wise men to figure out that an underpaid Santa Claus could put a real damper on the holiday season. Even if you're not the North Pole, you don't want to be on the wage-and-hour naughty list. Much like Santa, costly wage-and-hour lawsuits keep coming to town, so you may want to consider checking with counsel on how best to review and, if necessary, correct your pay practices. Happy holidays!

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.

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.

Santa and the FLSA

Reposting a very clever and important article written by Natalie F. Hrubos, an attorney in the Philadelphia office of Duane Morris. The original article can be found here: http://www.duanemorris.com/articles/santa_and_the_FLSA_4698.html

 

Delivering presents to the well-behaved children all over the world in a single night is hard work. Sure, Santa Claus makes it look easy with his jolly disposition, magical sleigh and team of nine flying reindeer. But does that mean he is any less entitled to compensation? Of course not! Let's just assume that Santa's employer—the North Pole, obviously—is covered by the Fair Labor Standards Act (FLSA). To comply with the law, the North Pole, like any other employer, has to ask itself certain questions.

First, is Santa's position exempt or nonexempt? There's no doubt that Santa works more than 40 hours per week during the holiday season. Think of all the letters pouring in from kids across the globe. Think of how much time it takes to figure out who's been naughty and who's been nice. The guy sees you when you're sleeping. If Santa's nonexempt, the North Pole owes him some serious overtime.

Santa may qualify for one of the FLSA's white-collar exemptions. For instance, Santa likely meets the duties test of the executive exemption if his primary duty is managing the North Pole enterprise: He customarily and regularly directs the work of at least two or more full-time elves, and he has the authority to make employment decisions, such as when to promote someone to lead reindeer. But if it's really Mrs. Claus and the head elf who perform these duties, then Santa likely does not qualify for the executive exemption.

Santa may, however, qualify for the administrative exemption. He probably meets the duties test for this exemption if his primary duty is the performance of office or non-manual work that is directly related to the management of the North Pole or its general business operations and if his work involves the exercise of discretion and independent judgment with respect to matters of significance.

Who goes on what list (naughty or nice) is certainly a matter of significance for the North Pole. But how clean must a child's bedroom be to earn her a spot on the nice list? How often must she share her toys with her siblings? And what if she tells the truth most, but not all, of the time? Santa necessarily uses his discretion and independent judgment when making these determinations.

That said, to qualify for the exemption, Santa's primary duty must be the performance of office or non-manual work. Traveling from house to house, sliding down chimneys and placing presents under Christmas trees would surely be considered nonexempt, manual work. But Santa does that only one night per year. Responding to letters from children could qualify as office work, but is that Santa's primary duty and is it directly related to the running or servicing of the North Pole's business? If either answer is "No," Santa may not qualify for the administrative exemption.

The reality is that even though the North Pole may pay Santa on a salary rather than an hourly basis, that doesn't mean Santa qualifies as exempt from the FLSA. If he doesn't meet the duties test for one of the FLSA exemptions, Santa is nonexempt and must be paid overtime compensation for every hour he works over 40 hours per week.

If Santa's position is nonexempt, then his Christmas Eve responsibilities present a number of additional compensation issues, such as whether the North Pole has to provide and/or pay Santa for his milk-and-cookie breaks; whether Santa is "on the clock" when he's using his iPhone to check in with the head elf; and whether his travel time to and from the North Pole and from house to house is compensable.

In some cases, the law of the North Pole may be more restrictive than the FLSA, and Santa's employer will be required to comply with whichever law is more beneficial to employees. The same is true with state law. For example, if a certain state requires employers to provide meal breaks, an employer is required to comply with the state law even though federal law does not impose such a requirement.

It doesn't take three wise men to figure out that an underpaid Santa Claus could put a real damper on the holiday season. Even if you're not the North Pole, you don?t want to be on the wage-and-hour naughty list. Much like Santa, costly wage-and-hour lawsuits keep coming to town, so you may want to consider checking with counsel on how best to review and, if necessary, correct your pay practices. Happy holidays!

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.

Illegal Interview Questions

Frequently, I hear from clients on the topic of interviewing. Specifically, what can be asked and what can't be asked of an applicant. As much as you may want to know if an applicant has children, and thus there is an allegedly higher possibility of missing work when the kids are sick, or if she owns her home, which means that she's not very likely to move away, you cannot ask these questions.
Here are a few others to avoid:

• Are you married?
• What does your spouse do for a living?
• Do you have plans to get pregnant in the future?
• Have you ever taken a leave of absence from a job?
• Do you go to church?
• Will you have to hire a babysitter if you get this job?
• From what country does your family originate?
• What year did you graduate from school?
• How will you get yourself to work?

Some other guidelines:

If the job requires occasional overtime, you may ask the applicant if he is available and how much advance notice he needs to work extra hours.

It's permissible to ask him if he speaks a foreign language, as long as you do not inquire if he is a native speaker.

If the job involves overnight travel, you may ask the candidate if she is able to leave town and again, how much notice she will need.

You may ask an applicant if she owns a car and has insurance only if driving her own vehicle while on company time is part of the job. Otherwise, questions about transportation are limited to asking if she has reliable transportation to get to work. If she considers the bus, her bicycle, or a neighbor willing to give her a ride to work reliable transportation, then this is reliable transportation.

Additionally, you may not ask an applicant if he has a disability. You may (and should) ask if he is able to perform the job — every applicant should be asked this. For example, you could say, “This job requires you to stand on your feet and walk without assistance for two hours before taking a break. Are you able to do this?”

During an interview, a job seeker may voluntarily bring up something that falls under the category of questions that you should not ask. When this happens, change the subject quickly and do not write the information down in your interview notes. This is for your own protection.  If, at a later date, someone accuses you of not hiring them because they have four children, and your interview notes indicate that they have four kids, you may have a hard time proving your contrary argument if the candidate otherwise meets the criteria for the job.

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.

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.

The Latest Installment In The Facebook Series

Earlier this year, I posted about an NLRB settlement involving an employee who had called her boss a “scumbag” on Facebook. Her employer had fired her relying upon its policy prohibiting employees from disparaging the company online without permission. The NLRB sought to protect the 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 the employee’s termination 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.

A New York Appeals Court recently ruled that there are limits on how much proof of employee dishonesty can be discovered through Facebook. In a personal injury suit, the employer, Turner Construction Co. was attempting to use information from the employee’s Facebook account to show that he was not being truthful about the extent of his injuries. In this decision, the court held that the employer could not have access to everything in the employee’s Facebook account was not sufficiently specific. The decision stated that the employer could only peruse Facebook activities that are relevant in that the information contradicts or conflicts with the plaintiff’s alleged restrictions, disabilities, losses and other claims. That judgment includes activities that are set to private or offer only restricted access to outsiders, aka non-Facebook friends of the plaintiff.

Though this is an incongruent ruling as compared to previous decisions, it is clear that postings on social media have wide implications. Specifically, these cases highlight the growing trend of social media use in civil suits, with some courts granting increasing access to what was once considered off limits because of the employee’s site privacy settings.

The courts are essentially saying that the employer can have access to information in those accounts but only use it in trial insofar as the content contradicts a plaintiff’s allegations.

The constant in all of these cases is that Facebook and other social media sites will continue to be targeted by lawyers reaching to find information helpful to their clients. And now, even password protected information may be open game.

So why is all of this important even here in on the West Coast? Simply put, civil law is established by court precedence, that is court decisions like those above. This means that the likelehood of a local court relying on a decision in a distant state is high. So even those rulings have the ability to eventually effect how you do 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.

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).

 

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.

Is It Illegal To Refuse To Hire The Unemployed?

I’m re-posting an online article that I found interesting.

Businesses Refuse to Hire Unemployed, EEOC says

by Stephanie Rabiner

When speaking to the unemployed, discrimination is usually the last thing on their mind. After all, they’re not employed, right? But once they settle in and start browsing the web for that next job, things change. Inevitably, they come across a promising ad, only to be devastated when the ad lists “currently employed” under qualifications. Discrimination has taken on new meaning.

Discrimination against the unemployed has finally come to the attention of the Equal Employment Opportunity Commission, which has just announced that it is now investigating whether the practice is as widespread as anecdotal evidence suggests, and whether the practice of requiring current employment is illegal. Employment law experts are unsure what the EEOC will do, reports The Wall Street Journal.

While the EEOC seeks evidence, it’s still possible to consider the legal side of the issue. Is it even legal to discriminate against the unemployed?

This is actually a tough question that requires a lot of statistical evidence. As it stands, employment discrimination laws do not explicitly protect the unemployed. Discrimination laws do, however, outlaw discrimination on the basis of race, color and age (over 40 years old).

Title VII and the Age Discrimination in Employment Act outlaw seemingly non-discriminatory selection policies that disproportionately affect protected classes of persons. This is referred to as a disparate impact.

As of January, the unemployment rate for African-Americans was 15.7%, 11.9% for Hispanics, and only 8% for whites. Not only that, one in every three short- to medium-term unemployed person was over 40, while over half of all long-term unemployed persons were also above 40. One expert also estimates that the anti-unemployed policies lower the chance of a minority being hired by 1/3.
Clearly an overwhelming proportion of unemployed persons are racial minorities or over the age of 40. And clearly these policies have a disproportionate impact on these legally protected groups. But that doesn’t make the policy illegal. The law also takes into consideration whether current employment is a necessary qualification, if there’s a less discriminatory alternative, and whether the policy is reasonable. So until there’s a final decision answering these questions, for those that are unemployed, discrimination will just have to be part of the game.

Related Resources:

• EEOC Asks: Are Employers Discriminating Against The Jobless? (Huffington Post)
• Speakers at EEOC Meeting Say Ban on Unemployed Job Applicants Could Discriminate Illegally (ABA Journal)
• Unemployed need not apply (Kansas City Star)

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.

 

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.

Criminal Backgrounds Checks, Credit Histories & Hiring

Recent Equal Employment Opportunity Commission (“EEOC”) initiatives are focused on eradicating what the EEOC views as more covert forms of discrimination, such as policies that exclude applicants with bad credit reports or criminal convictions. In light of this new scrutiny, employers who conduct credit or criminal background checks should make sure that their practices do not give rise to claims of “disparate impact” discrimination by members of protected classes.

EEOC Guidance on Criminal Background Checks

EEOC guidance provides that a blanket exclusion of individuals from employment due to a criminal record violates Title VII of the Civil Rights Act of 1964, unless the policy is consistent with business necessity or otherwise required by law. The EEOC has previously found that employment decisions based on this type of criteria disproportionately exclude African-American and Hispanic applicants. As a result, the EEOC has also stated that employers should not consider arrests, but only convictions.
If an applicant is excluded from employment because of a previous conviction, the EEOC calls for consideration of three factors: (1) the nature and gravity of the offense; (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.

Use of Credit Information in Employment Decisions

The EEOC is also evaluating the common hiring practice of checking the credit history of applicants. In October of 2010, the EEOC held a public Commission meeting on the use of credit histories in the employment selection process. At this meeting, representatives of civil rights groups cited studies showing racial minorities and women tended to have lower credit scores than non-Hispanic white males. These groups emphasized studies that show little correlation between “bad credit” and job performance. Thus, a blanket exclusion of applicants with “bad credit” may have a disparate impact on protected groups, without being justified by business necessity. This would violate Title VII.

Employer representatives emphasized the use of credit histories as part of mandatory background checks for jobs that involve access to customer and company money. These same speakers noted that credit reporting agencies do not reveal actual credit scores to potential employers, but rather a narrative of the individual’s credit history. Finally, proponents of credit checks argued that no research has shown a relationship between use of credit reports and a disparate impact on minority job opportunities. The statements of the panelists at the October 2010 Commission meeting, along with their biographies, can be found on the EEOC’s website. http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm

While the EEOC has no immediate plan of action on these issues, it reiterated that employers should ensure that any use of credit history in the employment process be entirely job-related.

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.