Tag Archives: employment law

Employee handbooks are something everyone loves to hate.

Employee handbooks get outdated, they’re missing detailed information, employees can’t find out the info they’re looking for in them, employers are continually in need of updating them … So just get rid of it, right?

Wrong. While there are schools of thought that argue that employers don’t need an employee handbook, most counsel is in agreement that a well-crafted handbook can not only help your employees, but also protect the organization itself from some lawsuits.

Note the term “well-crafted” in the above paragraph. It’s key. You can’t just put together a handbook in an afternoon, pulled from the internet, and think you’re protected. It’s imperative that your handbook serves multiple purposes, not just helping your employees understand your organization’s rules.

“A handbook is a collection of policies, an ever-living document that can be changed at any time by an employer with or without notice,” said Mary Kennedy, partner with Bulkley Richardson in Springfield. “The purpose of a handbook is to give information to employees about expectations at work.”

In fact, while your employees are definitely receiving and (hopefully) reading your handbook, your other reader is actually a judge and jury. Should you face employment litigation, your handbook will undoubtedly be one of the documents produced during the dispute. There are five key documents that arise most frequently in cases involving an alleged adverse employment action:

  1. Job description
  2. Employee handbook
  3. Performance evaluations
  4. Disciplinary documents
  5. Responses to administrative charges

These five documents are included in the “Pilot Project Regarding Initial Discovery Protocols For Employment Cases Alleging Adverse Action,” which some Federal courts require. So, since you are pretty sure that your handbook will be making a star cameo in any employment litigation, you should craft it with the intent to shine in this situation.

First off, don’t give away employees’ at-will status with a poorly written handbook! Yes, that’s possible. Employee handbooks can create implied contracts, and that means that your employees are no longer at-will. While not allowed in all states, those that do recognize implied contract claims have seen them arise from language around progressive discipline, assurances of job security, and probationary periods.

Next, grammar matters! Don’t know your semi-colon from your apostrophe? Brush up. A recent class-action lawsuit about overtime pay for truck drivers hinged entirely on the Oxford, or serial, comma – or the lack thereof. This wasn’t in a handbook, but rather state law, but it did end up costing Oakhurst Dairy an estimated $10 million. So, to be safe, check your grammar and make sure that your handbook says what it means, and means what it says.

Finally, good policy only goes so far. You know what you have to do to be an exemplary employer? Apply it consistently. That’s good on all sides – employees know what to expect, and a court can see that you’re treating everyone fairly.

Unsure about what to include, what to update, and what to avoid? Find out here…


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Volunteers: The Latest Trap for Workplaces

Volunteers aren’t something most workplaces deal with, but if you have volunteers, as opposed to interns, watch out.

While the FLSA exempts volunteers who offer their services with no expectation of payment, a recent lawsuit from volunteers against Major League Baseball is claiming unpaid wages for their time.

I know. It makes no sense. You volunteer to help – meaning without pay – then sue for payment? Sure, MLB has money to burn, but you were a volunteer!

But now, changing the playing field, the Department of Labor (“DOL”) has proclaimed that an individual may not render services on a volunteer basis to a for-profit institution. Indeed, according to the DOL’s formulation, only “public agencies” may engage the services of a volunteer.

So, what does it mean to employers? Watch out when using unpaid labor of any sort. The courts are accepting these suits, and you don’t want to be caught in the crosshairs. Check with counsel before using unpaid labor, and err on the side of caution and pay minimum wage instead.

Read more at Forbes.com.


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Workplace Harassment: SCOTUS Speaks

It’s getting harder and harder for employees to sue for harassment in the workplace, thanks to the recent Vance v Ball State University decision from SCOTUS yesterday.

This decision defines “supervisor” very narrowly – as someone with the power to hire and fire. And why does this matter? Title VII of the 1964 Civil Rights Act makes it easier to hold a company accountable for workplace harassment if the harasser is considered a supervisor. If the harasser is simply a co-worker, the company can defend itself just by proving it was not negligent in dealing with any complaints.

But the reality is that many workers today work under people who control much of their daily work environment, yet may not have the authority to hire or fire. And if those people are harassing workers, the workers now have weaker legal legs to fight back on.

Justice Ginsberg wrote a dissent outlining the problems with this decision:

“Supervisors, like the workplaces they manage, come in all shapes and sizes. Whether a pitching coach supervises his pitchers (can he demote them?), or an artistic director supervises her opera star (can she impose significantly different responsibilities?), or a law firm associate supervises the firm’s paralegals (can she fire them?) are matters not susceptible to mechanical rules and on-off switches. One cannot know whether an employer has vested supervisory authority in an employee, and whether harassment is aided by that authority, without looking to the particular working relationship between the harasser and the victim.”

While this is good news for employers and corporations on the face of it, the reality is that if, as an organization you allow harassment to go on, and harassed workers have no way to stop it or legal recourse against it, your organization is rotten. Bear that in mind while you count the money you’ll save in lawsuits. And push management to put it into building a safe, healthy workplace for your workers.


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EEOC’s New Strategic Plan May Mean A Tougher Anti-Discrimination Stance

The EEOC, or Equal Opportunity Employment Commission, is the government agency vested with the authority to enforce anti-discrimination legislation such as Title VII of the Civil Rights Act of 1964 and The Age Discrimination in Employment Act. The EEOC currently maintains an advisory and investigatory role, issuing guidance to employers on the meaning of anti-discrimination legislation and investigating allegations of discriminatory behavior to identify and take action against employers who violate the law. Like all administrative agencies, the EEOC must develop and post a strategic plan every four fiscal years. This means that the EEOC is now working on a draft of its 2012-2016 plan. 

The EEOC Revised Plan

Based on the current proposed EEOC draft, it is clear that the agency intends to take a more proactive role in curbing discriminatory behavior. The EEOC has long taken a relatively passive stance, although there have been indications that is changing for a while. The statisics for 2011, in fact, show that the year was a record one for both the number of discrimination charges filed and the amount of damages recovered from employers. The new plan puts into writing the EEOC’s new and more aggressive stance, instituting changes such as:

  • Policies for fighting discrimination through law enforcement
  • A plan for increased anti-discrimination education and for more outreach programs
  • A plan to make it easier for the public to obtain EEOC services. 

Employers need to be aware that the EEOC is increasing enforcement tactics and efforts and should take a moment to read the new plan in full to understand what types of changes are expected.

The Takeaway

The important thing to remember is that it is your obligation to avoid not only overt discrimination, but also practices that can be viewed as discriminatory. To avoid potential allegations of discrimination by the EEOC:

  • Maintain a clear anti-discrimination policy and hiring policy that promotes equal opportunity employment
  • Provide anti-discrimination training at all levels and be sure managers and employees understand the legal implications of discriminatory behavior
  • Review screening practices and pre-hiring qualifications to ensure that none are having a discriminatory effect
  • Take great care in performance reviews and put everything in writing in case you need documentation to prove why employment decisions were made.  

By being proactive yourself to avoid discrimination, you can avoid any potential problems with the new and more proactive EEOC plan. 

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