This document provides an overview and agenda for the 31st Annual Employment Law Seminar. It discusses common employment law issues small businesses and startups face such as wrongful termination, wage claims, and workplace safety. It outlines statutory protections for different classes and common law claims. Issues specific to startups like inventions, non-competes, and overtime are addressed. Best practices for hiring, firing, and protecting trade secrets are also covered.
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Second of 8 slide decks aimed at small to medium enterprises on factors to consider when commissioning a web site. This slide deck focusing on a changing legal environment brought about because of legislation like the EU GDPR
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Second of 8 slide decks aimed at small to medium enterprises on factors to consider when commissioning a web site. This slide deck focusing on a changing legal environment brought about because of legislation like the EU GDPR
Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants (...Financial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/recruiting-and-hiring-including-restrictive-covenants-2020/
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You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
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See more at https://www.financialpoise.com/webinars/
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You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/recruiting-and-hiring-including-restrictive-covenants-2021/
Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants (...Financial Poise
To view the accompanying webinar, go to: https://www.financialpoise.com/financialpoisewebinars/view-webinar/?id=261915068&slides=8FFUUS9Gyz9IpR
You only get one chance to make a first impression, so you want to make sure you’re your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
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Presented by Jackson Lewis.
Compliance is an essential part of HR, but it is always the bare minimum and should be assessed and analyzed as part of an overall culture strategy. Issuing a policy that says "We don't discriminate" is not the same as a comprehensive inclusion and diversity program.
Following the rules and filing reports are just part of creating a work environment where compliance happens on the way to larger goals for learning, performance, and wellness. But since HR never has to make the business case for compliance, it can be a persuasive approach to larger culture initiatives.
In this presentation, we survey compliance issues, who they affect, and why it's essential to see compliance as a culture issue.
You will learn:
- What compliance issues create risk for the organization.
- What compliance issues create risk for employees.
- Why people are the most important aspect of all compliance issues.
- When compliance problems are symptoms instead of causes.
- How to approach different compliance issues using tech, training, coaching and data.
- How to make compliance an effective part of a comprehensive approach to work culture and strategy.
The original webinar featured Mike Bollinger, Vice President-Thought Leadership and Advisory Services, Cornerstone OnDemand and Heather Bussing, Employment Attorney and Principal Analyst at HRExaminer.
Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants (...Financial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/recruiting-and-hiring-including-restrictive-covenants-2020/
Welcome to the Team! Recruiting and Hiring, Including Restrictive CovenantsFinancial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
Part of the webinar series: PROTECTING YOUR EMPLOYEE ASSETS: THE LIFE CYCLE OF THE EMPLOYMENT RELATIONSHIP 2022
See more at https://www.financialpoise.com/webinars/
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To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/recruiting-and-hiring-including-restrictive-covenants-2021/
Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants (...Financial Poise
To view the accompanying webinar, go to: https://www.financialpoise.com/financialpoisewebinars/view-webinar/?id=261915068&slides=8FFUUS9Gyz9IpR
You only get one chance to make a first impression, so you want to make sure you’re your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
Traklight Webinar with Nicole Druckrey on Trade Secrets: You Have Them! Here ...Traklight.com
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Policies, Procedures and Productivity (Series: Protecting Your Employee Asset...Financial Poise
Our society is increasingly bureaucratized and documentation is essential to working this bureaucracy. From a cost vs. benefit standpoint, having a written workplace handbook that highlights conduct, compensation and benefits, generally saves more money than it costs. While downloading a handbook from the internet, even if it’s free, may sound like a good idea, you generally get what you pay for as one-size-fits-all solutions are rarely as effective as solutions tailored to your needs. What makes the most sense for your organization? What policies are must-haves? What are the latest best practices when it comes to employee handbooks? What about training your staff and your managers? This webinar presents practical advice for employers looking to put themselves in the best position possible to not only defend against employment-related claims but—hopefully—to help avoid them in the first place.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/an-ounce-of-prevention-policies-procedures-and-proactivity-2021/
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On 12 March 2014, Australia’s privacy laws were significantly amended. The amendments go further than merely requiring businesses to update their privacy policy, as the new laws mandate businesses to critically examine how they collect, use and disclose individuals’ personal information. Find out how these changes affect your business.
22% of employees visit social networking sites 5 or more times per week, yet only 54% of employers have a policy dealing with social media inside and outside the workplace. During this presentation, participants will learn about potential legal issues involved in adopting a policy and how to avoid those issues. Sample provisions will be discussed and recommended actions addressed.
Presented by Jackson Lewis.
Compliance is an essential part of HR, but it is always the bare minimum and should be assessed and analyzed as part of an overall culture strategy. Issuing a policy that says "We don't discriminate" is not the same as a comprehensive inclusion and diversity program.
Following the rules and filing reports are just part of creating a work environment where compliance happens on the way to larger goals for learning, performance, and wellness. But since HR never has to make the business case for compliance, it can be a persuasive approach to larger culture initiatives.
In this presentation, we survey compliance issues, who they affect, and why it's essential to see compliance as a culture issue.
You will learn:
- What compliance issues create risk for the organization.
- What compliance issues create risk for employees.
- Why people are the most important aspect of all compliance issues.
- When compliance problems are symptoms instead of causes.
- How to approach different compliance issues using tech, training, coaching and data.
- How to make compliance an effective part of a comprehensive approach to work culture and strategy.
The original webinar featured Mike Bollinger, Vice President-Thought Leadership and Advisory Services, Cornerstone OnDemand and Heather Bussing, Employment Attorney and Principal Analyst at HRExaminer.
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Employment Basics for Small Businesses and Start Ups
1. 31st Annual Employment Law Seminar
M A R R I O T T C I T Y C E N T E R H O T E L | S A LT L A K E C I T Y, U TA H
PA R S O N S B E H L E . C O MN AT I O N A L E X P E R T I S E . R E G I O N A L L AW F I R M .
Employment Basics for
Small Businesses and Start Ups
Sean A. Monson
801.536.6714 | smonson@parsonsbehle.com
3. 3
Statutory Basis
Title VII –Race,
color, national
origin, gender,
pregnancy, religion
ADA
ADEA
Genetic
Information
(2008)/Veteran
Status
Retaliation
Statutory
Protected Classes
FMLA
FLSA
Common Law—
Implied in Fact
Contract
Pre-Employment
Statements
Statements During
Employment
Written
Statements
Employer
Practices
Common Law—
Public Policy
Legal Right or
Privilege (Voting)
Insisting on
Compliance with
the Law
(Whistleblower)
Legal Duty
(Jury Duty)
Refusing to
Perform an Illegal
Act
Employment Litigation Framework –
Wrongful Discharge/Discrimination
4. 4
Common Issues – Start Up Entities/Tech Companies
• Inventions/Confidentiality/Non-Solicitation/Non-Competition
• Overtime/Break Time
• Employee Handbooks
◦ At-will Acknowledgment
◦ Drug and Alcohol Testing Policy
◦ Sexual Harassment Policies
◦ FMLA Policies
• Best practices – hiring
• Best practices – firing
5. 5
Confidentiality and Inventions Agreement
• The most important document for technology companies
• Confidentiality agreements protect confidential information of the
employer from being distributed to third parties or used by the
employee to compete
• Confidential information does not have to rise to the level of a
trade secret to be protectable but is more likely to be protectable
if it is
• Inventions agreements ensure that new inventions belong to the
employer
6. 6
• Utah Uniform Trade Secrets Act:
• “Trade Secret” means information, including a formula,
pattern, compilation, program, device, method, technique, or
process, that:
◦ (a) derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable
by proper means by, other persons who can obtain economic value
from its disclosure or use; and
◦ (b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
What is a Trade Secret?
7. 7
• Information is more likely to be protected as a trade secret if
it is:
◦ Not known outside of the business
◦ Known only by employees involved in the business
◦ Protected by the business
◦ Has value
◦ Difficult to independently possess or
◦ Is a compilation of otherwise public information
What is a Trade Secret?
8. 8
• Sales prospect information that has been compiled into a
unique form
• Unique attributes of customers
• Buying patterns
• Internal pricing strategies
• Strategic market or sales information
• Secret formulas
• Competitive information
Common Trade Secrets
9. 9
• Your key employee resigns and says they are working in a completely new industry,
and not for a competitor
• Your key employee resigns and says they are working for a competitor
• Your key employee resigns to start their own business and the barriers to entry are
low
• Your key employee threatens to resign unless they get a significant raise
• Your key customers or sales prospects suddenly stop communicating with you and
go dark
• Your key employee is suddenly working odd hours or remotely
• Several key employees start to meet discreetly or after hours
• Several key employees quit at the same time
Key Point: Most employee theft happens BEFORE the employee quits or resigns, and is done in
anticipation of resignation
Red Flags & Warning Signs of Potential
Trade Secret Theft
10. 10
Immediate Action Steps Upon Key
Employee Resignation
• Conduct an exit interview
◦ Where are they going to be employed?
◦ Get phones and computers back, and
preserve
• Interview friends and colleagues of
departing employee
• Review their e-mail and other
communication
• Get employee to sign in writing that
they have no trade secrets in their
possession, custody or control
• Do not turn on phones or computers
(give to forensic expert)
• Have IT investigate all hardware used
by employee
• Review all computer log-in information
for unusual activity
• Review phone call history
• Review salesforce.com history
• Review social media, including
LinkedIn, etc. . .
• Hire a data forensic expert if anything
suspicious
• Consider involving law enforcement
early if have proof because law
enforcement is slow
11. 11
Non-Compete/Non-Solicitation
• Key issue a court is going to look at is “protectable interest”
• Is there a legitimate reason for the court to place restrictions on
an employee’s ability to make a living in his or her chosen
industry
• Think of an inverse pyramid in terms of protectable interests –
confidential information on top, non-solicitation covenants in the
middle, non-compete covenants the tip at the bottom
• Courts are likely to find that an employer has legitimate interest
in preventing its confidential information from being used by a
competitor
12. 12
Immediate Action Steps Upon Key Employee
Resignation With Suspicion
• Issue an internal litigation hold letter to
make sure everyone knows to preserve
all documents and evidence
• Hire investigation counsel promptly
◦ Counsel can send preservation letter to
competitor; and
◦ Counsel can send litigation hold letter
to former employee(s);
• Touch base with key prospects and
clients to ascertain any inappropriate
contacts or activities
• Preserve the suspected devices to
prevent tampering, spoliation and
overwriting
• Leave the device exactly as it was –
even turning a device on can alter a
device
• Disconnect the device from the network
• Locate all employee contracts
• Send a reminder letter of employee’s
obligations to company
• Send a letter to new employee of
former employees obligations
13. 13
• Thumb drives
• External drives
• Smartphones, including photographs
• Cloud services such as Dropbox
• Public e-mail accounts like Yahoo
• Printing copies
• Texts
• Phone calls
Common Methods of Stealing Data
14. 14
• Encrypted communications software/e-mail like
◦ ProtonMail
◦ Hushmail
◦ Barracuda
• Uploading to other software or apps, i.e., LinkedIn
Common Methods of Stealing Data
15. 15
• Customer lists can be protected as a trade secret if the
customers’ information is:
◦ Not known in the trade;
◦ Discoverable only by extraordinary efforts.
Hammerton, Inc. v. Heisterman (D. Utah 2008).
• Contains unique information not generally known in the
industry, i.e., key contacts, purchasing patterns, historical
purchase information.
Customer Lists
16. 16
• Mark as confidential or proprietary
• Permit only authorized access and for only needed time period
• Prohibit copying
• Inform employees of the secrecy of the information and duties
regarding same
• Keep the information secret and not available beyond those who
have an immediate need to know
• Delete all data after cessation of employment remotely
Ways to Protect Trade Secrets
17. 17
Non-Compete/Non-Solicitation
• Non-Solicitation – middle of the inverted pyramid as to
protectable interest
◦ Customers the employee worked with
◦ Customers as a whole of the employer
◦ Potential customers
18. 18
Non-Competition/Non-Solicitation
• Non-Competition – bottom tip of the inverted pyramid as to
protectable interest
• In Utah, unless the employee is a television broadcaster or
unless the covenant not to compete is negotiated as part of
the sale of a business – cannot be longer than one year
• What is the line between non-solicitation and non-
competition
• Social media posts, general advertising, what if the
customer reaches out first
19. 19
BONUS SLIDE
Non-Competition – Hiring
• Ask candidate if subject to non-compete
• Written verification they are not
• Indemnification if verification is wrong
• Be wary of hiring employees of competitors
20. 20
Overtime – Basic Rules
• Overtime is a federal issue – the Fair Labor Standards Act
(FLSA)
• No state rule/requirement
• Basic rule – paid one and one-half wage rate for every hour
worked past 40 hours in a week
◦ Don’t combine weeks (i.e. 60 in one week, 20 in one week)
◦ Week by week basis
◦ Compare California which requires overtime for time over 8 hours
in one day and for the first 8 hours on the seventh consecutive day
of work – so in California, subject to both federal and state rules
21. 21
Overtime – Exclusions from “Regular Rate of Pay”
• There is a proposed regulation to exclude the following employment
benefits in calculating an employee’s regular rate of pay:
◦ the cost of providing wellness programs, onsite specialist treatment, gym access
and fitness classes, and employee discounts on retail goods and services;
◦ payments for unused paid leave, including paid sick leave;
◦ reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
◦ reimbursed travel expenses that do not exceed the maximum travel reimbursement
permitted under the Federal Travel Regulation System regulations and that satisfy
other regulatory requirements;
◦ discretionary bonuses;
◦ benefit plans, including accident, unemployment, and legal services; and
◦ tuition programs, such as reimbursement programs or repayment of educational
debt
22. 22
Overtime – Exemptions
• Certain categories of employees are “exempt” under the FLSA – don’t
have to pay overtime
• Multiple exemptions – ones most common in start up industries –
Executive, Administrative, Outside Sales, Computer
• Executive, Administrative -- must be paid on a salary basis of not less
than $455 per week (3/17/2019 proposal to move this to $679 per
week)
• Computer – must be paid on a salary or fee basis of $455 per week
(3/17/2019 proposal to move to $679 per week) or, if paid hourly, at
least $27.63 per hour.
• Outside Sales – no salary threshold
23. 23
Overtime Exemptions – Computer Employees
The employee must be employed as a computer systems analyst,
computer programmer, software engineer or other similarly skilled
worker in the computer field performing the duties described below
◦ The employee’s primary duty must consist of:
1) The application of systems analysis techniques and procedures, including
consulting with users, to determine hardware, software or system functional
specifications;
2) The design, development, documentation, analysis, creation, testing or
modification of computer systems or programs, including prototypes, based
on and related to user or system design specifications;
3) The design, documentation, testing, creation or modification of computer
programs related to machine operating systems; or
4) A combination of the aforementioned duties, the performance of which
requires the same level of skills.
24. 24
Computer Exemption – Primary Duty
• “Primary duty” means the principal, main, major or most
important duty that the employee performs. Determination of
an employee’s primary duty must be based on all the facts
in a particular case, with the major emphasis on the
character of the employee’s job as a whole.
25. 25
Overtime Exemptions – Executive Employees
• Must meet salary thresholds
• The employee’s primary duty must be managing the enterprise, or
managing a customarily recognized department or subdivision of the
enterprise;
• The employee must customarily and regularly direct the work of at
least two or more other full-time employees or their equivalent; and
• The employee must have the authority to hire or fire other
employees, or the employee’s suggestions and recommendations
as to the hiring, firing, advancement, promotion or any other change
of status of other employees must be given particular weight
26. 26
Overtime Exemption – Administrative Employees
• Must meet the salary threshold
• The employee’s primary duty must be the performance of
office or non-manual work directly related to the
management or general business operations of the
employer or the employer’s customers; and
• The employee’s primary duty includes the exercise of
discretion and independent judgment with respect to
matters of significance
27. 27
Overtime Exemptions – Outside Sales
• No salary threshold requirement for exemption to apply
• The employee’s primary duty must be making sales (as
defined in the FLSA), or obtaining orders or contracts for
services or for the use of facilities for which a consideration
will be paid by the client or customer; and
• The employee must be customarily and regularly engaged
away from the employer’s place or places of business
28. 28
Breaks
• No federal requirement to provide breaks
• No state requirement to provide breaks (unless employee is
under the age of eighteen – 10 minutes for every 3 hours;
30 minutes after 5 hours from start of shift)
• But . . . If you do provide a break to those over 18
◦ 20 minutes or under – must be paid
◦ 30 minutes or over – need not be paid (if employee is given
freedom to do what he or she wants during that time period)
◦ 20-30 minutes, gray area but most likely not compensable
29. 29
• The FLSA requires covered employers to provide
reasonable break time for employees who are nursing or
breastfeeding mothers to express breast milk.
◦ Employers with fewer than 50 employees are not subject to the
FLSA break time requirement if the employer can demonstrate that
compliance with the provision would impose an undue hardship
• Utah Law requires that public employers provide
“reasonable breaks and private room.”
◦ See Utah Code 34-49-202
Lactation Breaks
30. 30
There is no federal or state law requiring private employers to
provide handbooks to their employees
Reasons to provide a handbook include:
• A handbook provides an opportunity to formally welcome
new employees, introduce the organization and explain
expectations
Employee Handbooks
31. 31
• Grouping various employment policies together in a handbook
makes it easier for an employer to ensure that each employee
receives copies of all relevant policies – the most important of
which are drug and alcohol testing and unlawful
discrimination/harassment
• If subject to FMLA, must have FMLA leave policy in the
handbook
• A handbook is a centralized place for employees to look for
answers to common questions such as how often employees are
paid
• Confirm the at-will nature of the employee’s employment
Key Reasons to Create a Handbook
32. 32
• Avoid overly rigid disciplinary rules and any other language that
could be interpreted as creating a contractual obligation requiring
just cause for termination
◦ TIP: Simply state discretion to discipline and terminate the
employment relationship
• Include enough information so that the policies can be
understood, but avoid providing too much detail
• Language relating to the employee’s conduct should generally
be mandatory “shall” or “will.” Language relating to the
employer’s conduct should generally be discretionary “may” or
“at its discretion”
Creating a Handbook: Drafting Guidelines
33. 33
• At-Will Disclaimer
◦ The policies in the handbook are guidelines only
◦ Company has the right to modify or delete policies in the handbook
without notice
◦ The employment relationship is at-will – at-will disclaimer must be
CONSPICUOUS
◦ Employee can be fired for any or no reason, at any time, without
warning, without process
◦ Consider having employees re-sign every year to eliminate
implied-in-fact contracts that may have cropped up
At-Will Disclaimer
34. 34
• Not required by federal law – but strongly encourage
• Should also have EEO statement and non-discrimination
policy in addition to anti-harassment policy
• It helps to demonstrate reasonable care to prevent and
promptly correct harassing behavior
◦ This is a necessary element of the Faragher-Ellerth defense.
• Clearly delineate two people to whom an alleged victim can
report claims
Anti-Harassment Policy
35. 35
• This is the partner policy to EEO and anti-harassment
policies
• Not required by federal or state law
• A stand-alone retaliation policy is best because retaliation
can occur in contexts other than discrimination or
harassment
◦ i.e., workers' compensation laws, laws governing health and safety
and employment leave statutes
Anti-Retaliation Policy
36. 36
• Family and Medical Leave (FMLA) Policy
◦ Eligible employees entitled to 12 twelve weeks unpaid leave for own illness,
illness of family member, birth of child etc.
◦ Employer can require to run currently with any PTO
◦ Employers covered (generally 50 or more employees) must include a general
notice explaining the FMLA's provisions in their employee handbook
See 29 C.F.R. § 825.300
◦ Employers should ensure that the policy accurately provides which category of
employees are eligible for leave and the requirements that need to be met for
such eligibility
◦ An employer who misrepresents information about an employee's eligibility in
FMLA leave in its employee manual may be liable for FMLA interference under
an estoppel theory
FMLA Leave
37. 37
Drug and Alcohol Testing
• Must have a written policy or can’t use as a basis for
discipline
• Must follow state statute in testing protocol
• Usually can test:
◦ Reasonable suspicion
◦ Random
• Cannot test before offer of employment made
• Should apply uniform pre-offer testing requirements to all
similarly situated employees
38. 38
BONUS SLIDE
Independent Contract v. Employee – Beware the Sirens
• Paying people as independent contractors is very tempting
◦ Tax savings (they pay the employer’s portion of FICA)
◦ No overtime
◦ No workers compensation
◦ No unemployment insurance
• But doing so is very dangerous
• Multiple contexts – tax, FLSA, Workers Compensation,
Unemployment
• Different tests in each context, even in same state
39. 39
BONUS SLIDE
Independent Contract v. Employee – Beware the Sirens
• Right to control the work is a key element in most tests
◦ Timing
◦ Methods
• Work for someone else besides you – trend of cases and
statutes focus on this issue
• Penalties for misclassification can be extreme . . . a lose the
business type of proposition
40. 40
BONUS SLIDE
PTO
• Can implement use it or lose it rule, including at termination
• But the rule must be express
• Trend is for no/unlimited PTO
• Take the time you need, get the job done
• Ripe for abuse, have to be vigilant in imposing
accountability to “get the job done”
41. 41
Hiring – Proper and Improper Questions
• Proper: Current and previously used names
• Improper: Origin of applicant’s name which could suggest
lineage or national origin
• Proper: Current address
• Improper: Prior or current foreign address (which could
constitute an inquiry into national origin)
• Improper: Inquiry into birthplace of applicant, parents,
spouse or relatives
42. 42
Hiring – Proper and Improper Questions
• Improper: Inquiry into age prior to employment (unless there
is a minimum age requirement for performance of job)
• Proper: Ability to perform job-related tasks; describe or
demonstrate, with or without reasonable accommodation,
ability to perform job
• Improper: Inquiry about whether disabled or nature or
severity of disability
43. 43
Hiring – Proper and Improper Inquiries
• Improper: Inquiries into gender, pregnancy or plans to have
children
• Improper: Inquiries into applicant’s religion, spiritual leader,
religious beliefs (or lack thereof)
• Improper: Inquiries into arrest records
• Improper: Inquiries into height or weight (unless necessary
for job)
44. 44
Discipline and Termination
• File becomes the key to any employment defense
• Written discipline 100x the value of an oral reprimand
• If get a complaint, follow this process:
◦ Get complaining party’s story – have them sign or record
Who, what, where, when
◦ Talk to all witnesses
Who, what, where, when
◦ Make a decision that explains why took steps you took
◦ Give the complained about party a chance to respond
• Document misconduct – if not documented, it did not happen
• CONSISTENCY, CONSISTENCY, CONSISTENCY
FLSA - Employers are required to provide a reasonable amount of break time and a space to express milk as frequently as needed by the nursing mother, for up to one year following the birth of the employee’s child. The frequency of breaks needed to express breast milk as well as the duration of each break will likely vary. The space provided by the employer cannot be a bathroom, and it must be shielded from view and free from intrusion by coworkers or the public.
All employers covered by the FLSA, regardless of the size of their business, are required to comply with this provision. However, employers with fewer than 50 employees are not subject to the FLSA break time requirement if the employer can demonstrate that compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, or structure of the employer’s business.
Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See Wage and Hour Division Fact Sheet #22, Hours Worked under the FLSA.
- For example, a handbook should not claim to list all possible reasons for termination of employment.
- A handbook should not overwhelm employees, for example, by including all office procedures, such as instructions on requisitioning office equipment. Employers often have a separate manual covering workplace procedures.
Welcome Statement
Although not legally required, many employers begin their handbook with an introduction. Frequently, this takes the form of a letter or memorandum from the Chief Executive Officer or someone in management introducing the employer and the handbook, and welcoming employees. It can also include a brief description of the employer, its mission statement and its culture. A handbook should always include contact information for an employer representative, typically someone within Human Resources, who is available to answer any questions from employees. This contact person should be well-versed in the employer's policies and procedures, and prepared to answer any complex questions about terms and conditions of employment that could arise.
Opening Disclaimer
To minimize the risk that a court will treat a handbook as an employment contract and a modification of the at-will employment relationship, all employers should include an opening disclaimer noting that nothing in the handbook creates a contract of employment. A nonunionized employee handbook typically includes the following additional disclaimers:
•The policies in the handbook are guidelines only.
•The employer has the right to modify or delete policies in the handbook without notice.
•The employment relationship is at-will. If the employer has some employees who are employed at-will and others who have an employment agreement with something other than at-will employment specified, the disclaimer can include language that the employment agreement governs to the extent there is any conflict between policies in the handbook and the employment agreement.
Background Check Policy
Employers that use background checks on applicants or employees should implement and maintain a background check policy.
See Tilley v. Kalamazoo Cnty. Road Comm'n, 2015 WL 304190 (6th Cir. Jan. 26, 2015).)