Welcome to the Company, Please Sign Here: Workplace Documentation
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This document summarizes the key topics and policies covered at the 24th Annual HR Law & Solutions conference. The agenda included discussions of critical handbook policies, additional wage/hour policies, LGBT issues in the workplace, acknowledgement of probation/reemployment, background check best practices, avoiding NLRB issues, non-compete agreements, and confidentiality agreements. Key policies reviewed included FMLA leave, anti-discrimination, timekeeping, travel time, and salary basis. Presenters provided guidance on complying with wage/hour laws and handling personnel evaluations, LGBT workplace issues, restrictive covenants, and protecting trade secrets.
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Welcome to the Company, Please Sign Here: Workplace Documentation
- 3. Critical Handbook Policies • Over 50 Employees? – Family and Medical Leave Act – Domestic Violence Leave 24thAnnual HR Law & Solutions 9
- 4. Agenda • Critical Handbook Policies • Additional Wage/Hour Policies • LGBT Issues in the Workplace • Acknowledgement of Probation/Reemployment • Background Check Best Practices • Avoiding the NLRB’s Wrath • Non‐Compete/Non‐Solicit Agreements • Confidentiality Agreements 24thAnnual HR Law & Solutions 4
- 5. The Halo Effect Best practices for evaluations: Review should be objective, clear, accurate, and timely Convey employer’s expectations vs. employee’s performance Evaluate: strengths, weaknesses, attitude, goals Address performance deficiencies accurately and respectfully 24thAnnual HR Law & Solutions 26
- 6. Critical Handbook Policies – Company is an at‐will employer. This means that either Company or the employee may terminate employment with or without notice or cause. This employee handbook is not an express or implied contract of employment. Company reserves the right to change, modify, or delete any provision of this employee handbook at its sole discretion and without notice. 24thAnnual HR Law & Solutions 6
- 7. Critical Handbook Policies • Equal Employment Opportunity Statement – List protected classes – Don’t forget religion, marital status, genetic information 24thAnnual HR Law & Solutions 7
- 8. Critical Handbook Policies • Anti‐Discrimination/Anti‐Harassment Policy – Zero tolerance statement – Anti‐retaliation statement • Employer will not retaliate for a good‐faith complaint – Reporting procedure • “Shall” report – do not leave wiggle room • Have at least 2 clear reporting channels 24thAnnual HR Law & Solutions 8
- 9. Critical Handbook Policies • Over 50 Employees? – Family and Medical Leave Act – Domestic Violence Leave 24thAnnual HR Law & Solutions 9
- 10. Critical Handbook Policies • No Call/No Show Policy • Wage/Hour Policies – Payroll/pay period • Make sure you have a clearly defined seven day period – Overtime • It is okay to require approval, but pay no matter what! 24thAnnual HR Law & Solutions 10
- 11. Critical Handbook Policies • Wage/Hour Policies (cont’d) – Salary basis policy • Example policy – Work schedules/timekeeping • Example policy 24thAnnual HR Law & Solutions 11
- 12. Critical Handbook Policies: Salary Basis Policy – Part I It is the Company’s desire to comply with applicable wage and hour laws and regulations. The improper pay deductions specified in the Code of Federal Regulations (§541.602(a)) may not be made from the pay of employees who are subject to the salary basis test under the Fair Labor Standards Act. If you believe that any deduction has been made from your pay that is inconsistent with your salaried status, you should immediately contact your supervisor or human resources. 24thAnnual HR Law & Solutions 12
- 13. Critical Handbook Policies: Salary Basis Policy – Part II Any complaint will be resolved within a reasonable time given all the facts and circumstances. If an investigation reveals that you were subjected to an improper deduction from pay, you will be reimbursed and the company will take whatever action it deems necessary to ensure compliance with the salary basis test in the future. 24thAnnual HR Law & Solutions 13
- 14. Critical Handbook Policies: Work Schedules/Timekeeping–Part I Company exercises care in complying with wage and hour regulations. Cooperation of all employees is essential. Each non‐exempt employee is responsible for accurately tracking his/her time. An employee's time clock reports should correspond with the employee's prescribed work schedule. If a non‐ exempt employee arrives to work prior to his/her scheduled start time, or stays after his/her scheduled end time, the employee shall not perform any work. 24thAnnual HR Law & Solutions 14
- 15. Critical Handbook Policies: Work Schedules/Timekeeping‐Part II If the employee does perform work during this time, the employee must clock in. Likewise, if a non‐exempt employee is required to attend a meeting or perform any work whatsoever outside his/her scheduled time, the employee must clock in so he/she can be properly paid. Violations of this policy can lead to discipline, up to and including termination. 24thAnnual HR Law & Solutions 15
- 16. Additional Wage/Hour Policies Timecard Disclaimer I certify that this time card accurately reflects my work time and use of leave, and that I have not worked any hours during this time period that are not reported on this time card. I understand that the accurate recording of working hours is a serious matter and that those who falsify information are subject to discipline, up to and including termination of employment. 24thAnnual HR Law & Solutions 16
- 17. Additional Wage/Hour Policies: Travel Time Acknowledgement • When is travel time compensable? – Employee is performing work for employer’s benefit: • Picking up supplies • Required to drive other workers • Making business phone calls or scheduling • Required to meet at a particular location, then drive 24thAnnual HR Law & Solutions 17
- 18. Additional Wage/Hour Policies: Travel Time Acknowledgement • When is travel time compensable? – Car pool • Not compensable if for employee’s benefit/voluntary • No work performed, no supplies picked up, etc. • What about the driver? – If required to drive, must pay – If voluntary, do not have to pay 24thAnnual HR Law & Solutions 18
- 19. DOL Proposed OT Regulations • Major modification to salary basis: – $23,660 ($455/week) to $50,440 ($970/week) – Highly Compensated Employee: from $100,000/year to $122,148/year • Salary basis to automatically change based on percentile of earnings for full‐time salaried workers • Timeline? 24thAnnual HR Law & Solutions 19
- 20. DOL Proposed OT Regulations • What should you do? – Start planning now for impact on bottom line – Budget for salary and OT increases – Carefully review all classification decisions, particularly the salary component – Consider wage/hour audit 24thAnnual HR Law & Solutions 20
- 22. LGBT Issues in the Workplace • Legal Status – Not currently protected under Florida or federal law – Courts, including Eleventh Circuit, have held that discrimination because of gender nonconformity is sex discrimination – Executive Order 13672 (July 2014) added sexual orientation and gender identity to protected classes for Executive Order 11246 – EEOC cases (Lakeland Eye Center) 24thAnnual HR Law & Solutions 22
- 23. LGBT Issues in the Workplace • How to address in handbooks/policies • EEO Policy • Non‐Discrimination/Non‐Harassment Policy • Dress Code • Gender Transition Issues/Plan • Transitioning employee should be guide • Training is critical • Restrooms? • Nametags? 24thAnnual HR Law & Solutions 23
- 25. The Halo Effect • Poor performing employee with glowing performance reviews • When confronted with a lawsuit, John Doe was the WORST. EMPLOYEE. EVER. • But, personnel file tells a different story 24thAnnual HR Law & Solutions 25
- 26. The Halo Effect Best practices for evaluations: Review should be objective, clear, accurate, and timely Convey employer’s expectations vs. employee’s performance Evaluate: strengths, weaknesses, attitude, goals Address performance deficiencies accurately and respectfully 24thAnnual HR Law & Solutions 26
- 28. Acknowledgement of Probation • Employee acknowledges he/she is in “probationary period” for the first 90 days • Sign within first seven days of employment • Allows employer to avoid being charged with reemployment benefits if discharge for poor performance – Employee may still get benefits • Only covers initial 90 days 24thAnnual HR Law & Solutions 28
- 29. Background Check Best Practices • Ban the Box – Legislation dead in Florida…this year • Still, best practice is to conduct a targeted screen – No blanket policy – Is your use of arrest or conviction history “job related and consistent with business necessity”? 24thAnnual HR Law & Solutions 29
- 30. Background Check Best Practices • Consider post offer screen • Written permission/notification • Don’t forget your I‐9s! 24thAnnual HR Law & Solutions 30
- 31. Avoiding the NLRB’s Wrath Concerted Activity Refresher: • Two or more employees • Discussing terms, conditions, or privileges of employment – Wages – Working conditions – Benefits • Cannot take adverse action against employee for engaging in concerted activity 24thAnnual HR Law & Solutions 31
- 32. Avoiding the NLRB’s Wrath NLRB on Confidentiality • Never disclose the Company’s or another’s confidential or proprietary information. Never publish or report on conversations that are meant to be private or internal to the Company. • Misuse or unauthorized disclosure of confidential information not otherwise available to persons outside the Company is cause for disciplinary action, including termination. 24thAnnual HR Law & Solutions 32
- 33. Avoiding the NLRB’s Wrath NLRB on Confidentiality • Do not make fun of, denigrate, or defame your co‐ workers, customers, franchisees, suppliers, the Company, or our competitors. • No defamatory, libelous, slanderous or discriminatory comments about the Company, its customers and/or competitors, its employees or management. • Chronic resistance to proper work‐related orders or discipline, even though not overt insubordination, will result in discipline. 24thAnnual HR Law & Solutions 33
- 34. Avoiding the NLRB’s Wrath Handbook/Policy Disclaimer • Nothing in this policy is designed to interfere with, restrain, or prevent employee communications regarding wage, hours, or other terms and conditions of employment, and the Company’s employees have the right to engage in or refrain from such activities. • Nothing in this policy is intended to infringe upon an employee’s right to engage in protected concerted activity. 24thAnnual HR Law & Solutions 34
- 37. 24thAnnual HR Law & Solutions 37 Non‐Compete Non‐Solicit Agreements • Section 542.335, Florida Statutes – Must be in writing and signed by the party against whom enforcement is sought – Must have a “legitimate business interest” – Must be reasonable in duration and geography – Can be required as a condition of continued employment
- 38. 24thAnnual HR Law & Solutions 38 Non‐Compete Non‐Solicit Agreements Legitimate Business Interest (LBI) 1. Trade secrets 2. Confidential information 3. Substantial relationships with clients 4. Customer goodwill associated with a. Ongoing business; b. Specific geographic location; or c. Specific marketing or trade area 5. Extraordinary or specialized training
- 40. 24thAnnual HR Law & Solutions 40 If your restrictive covenants are: (1) Overbroad; (2) Overlong; or (3) Not reasonably necessary to protect LBI Then the Court can apply the Blue Pencil Doctrine Non‐Compete Non‐Solicit Agreements
- 43. 24thAnnual HR Law & Solutions 43 Confidentiality and Non‐Disclosure Agreements • First identify whether you have any trade secrets or confidential business information • Then, identify all of them and create a system for protecting the information – restricted physical access – password protections – Provision only on need‐to‐know basis
- 46. 24thAnnual HR Law & Solutions 46 Confidentiality and Non‐Disclosure Agreements • Enforcement Considerations – Injunctive Relief – Damages – Potential Defenses – Attorneys’ fees and costs – Companion Claim for Tortious Interference – Defenses
- 47. 24thAnnual HR Law & Solutions 47 Considerations Common to Restrictive Covenants and Confidentiality Agreements • Focus on key employees • Require signature of acknowledgement at the outset of employment disclaiming any to prior obligations • Include provisions related to assignability and venue for enforcement
- 48. 24thAnnual HR Law & Solutions 48 Considerations Common to Restrictive Covenants and Confidentiality Agreements • Create independent documents and independent consideration for agreements • Review continuing obligations at termination of employment and request signed acknowledgement • Always enforce or risk waiving your ability to enforce at all