Employee Handbooks: A Checklist of Essential Items

July 27, 2009

There are those employers who absolutely believe that having an employee handbook in place is an absolute liability. They believe this because they heard from a “friend” or advisor that they are bad to have or they had a handbook that was poorly written and it got them into trouble. Nothing is further from the truth and having an effective employee handbook in place does work toward your benefit.

One of the problems is that employers will take a shortcut and purchase some online do it yourself kit to save money. How much is really saved? The hours that are put in just trying to figure out which policies to put in takes up more time than it is worth. In addition, more than likely the recommended policies probably have to be re-written to customize them for your particular environment. This all takes time and assuming that the policy is being written by someone on the upper pay scale you have to consider how much you are really saving.

Alright, I have said my piece. Whether you elect to do one yourself or you retain a professional there are some essential items that you want to make sure are in your handbook. Now, as many of you are aware, I have been reviewing and writing handbooks for close to thirty years. The essentials that I am offering below are my opinion. Another professional could disagree but that’s who we are!

These are the top 25 critical areas:

1.       The employment relationship (at-will)

2.       Equal Employment Opportunity Statement (Discrimination)

3.       Affirmative Action Statement (if applicable)

4.       Sexual Harassment Policy

5.       Work Hours

6.       Breaks (one ten minute break for every four hours of work)

7.       Lunch (one thirty break for every five hours)

8.       Pay periods

9.       Overtime pay computation

10.   Vacation Policy

11.   Holidays

12.   Sick Pay (if applicable)

13.   FMLA (if applicable)

14.   Pregnancy Leave

15.   Military Spouse Leave

16.   Military Leave

17.   Jury Duty

18.   Internal Complaint Procedure

19.   Non-Retaliation Policy

20.   Dress Code

21.   Conduct Policy

22.   Computer Use Policy

23.   Conflict of Interest

24.   Safety & Workers Comp Reporting

25.   Alcohol & Drug Policy

Again, I offer these as my opinion and if you ever need assistance we stand at the ready.


Protecting Employee Medical Information

July 19, 2009

Keep in mind that both the FMLA and CFRA restrict how much medical information an employer can ask for, and sometimes demand, from an employee who is requesting a leave of absence. Be advised that it may be risky to call the medical provider directly to inquire as to the specifics of the certification that may have been provided. Furthermore, any information received must be maintained in a confidential manner. There are some easy guidelines to keep in mind.  Follow these easy steps and they should keep you out of trouble.

             1.  Keep all medical information in a separate folder other than the personnel file.

             2.  Do not permit supervisors to access any medical records unless the inquiry is based upon the need to make an accommodation for a disability or manage their work force while an employee is out on a leave of absence.

             3.  If there is a disability insurance policy in place, obtain a signed release from the  employee giving their healthcare provider permission to release the          information.

            4.  Any time you (the employer) is trying to determine if an employee is eligible for a leave of absence under either the FMLA or CFRA, ask for a certification from the healthcare provider. If you feel the necessity to doubt the validity of  the certification, you can ask for a second opinion at your expense. If the two  reports conflict, you can get a third opinion.

 Issues of safeguarding personal and medical information are escalating. Employers need to understand that the manner in which the information is kept is also a factor.  File drawers need to have working locks to prevent unauthorized personnel from gaining access.

U.S. Supreme Court Sides With Employers-At Last!!!

July 13, 2009

The U.S. Supreme Court holds plaintiffs in age discrimination suits to a higher standard. As some of our clients have  found out over the last 18 months, former employees that have been laid off have come back against them with allegations of age discrimination.  The Equal Employment Opportunity Commission has also announced that age discrimination claims rose 15% in 2008.

The ruling by the high court has now increased the burden on the plaintiff to prove that their termination was a violation under the federal Age Discrimination Act (ADEA). The court held on June 18, 2009, that plaintiffs in age discrimination cases always bear the burden of proving that an adverse employment action would not have been taken against them “but for” their age.

The Supreme Court’s decision is a significant win for employers defending against aga discrimination claims. The decision clearly articulates the burden on the former employee bringing the age discrimination claim to prove that if it wasn’t for their age they would not have been terminated. But as always, I believe in throwing caution to the wind. Employers will still want to have the proper documentation to show that whatever the adverse action taken was in fact for all the right reasons.

Now for the bad news. Unfortunately, employers may not have a very long opportunity to appreciate the benefits of the Supreme ourt’s decision. One Senator, Patrick Leahy, a democrat from Vermont was quite disturbed by the decision and criticized the opinion as “overreaching by a narrow majority of the court that will have a detrimental effect on all Americans and their families.” This simply means that since the democrats are in control they can very easily change the law to favor the older worker. You may recall this happened earlier in the year. President Obama changed the law regarding the statute of limitations from 6 months to 2 years regarding claims of unequal pay.

Now for the good news. You still have us to fight on your behalf (LOL)! I have been very successful in fighting the age discrimination cases. Let’s make the proper decisions and have the documentation to support that decision and we should be fine.

I Have Developed An Alternative Dispute Resolution Plan

July 5, 2009

Tired of getting letters from attorneys threatening lawsuits?? Well, I have developed an alternative dispute resolution plan that will force those  attorneys to go in another direction and keep the high cost of litigation down to a reasonable amount! Yep, it’s true, and this plan can work on a national basis as well (for those clients with out of state locations). It stops them from being able to go into Superior Court. 

The plan works for work place disputes involving all forms of discrimination, sexual harassment, wrongful termintion and wage and hour allegations. The key to your success is to follow the plan precisely as written. I even file the plan with the appropriate agency, they approve it, and we are off and running.  Sound simple? Well, I do the hard work and you have to follow the instructions. Don’t miss out on this! With employment litigation cases on the rise this is the way to secure against unreasonable settlements because it is “cheaper to settle!”

I cannot stress the importance of this. If you are interested send me an email at paaerrep@aol.com and I will send you the exact details of what needs to be done to make this happen.

Current I-9 To Remain Valid Beyond June 30, 2009

July 5, 2009

On June 26, 2009, the United States and Immigration Services announced that the current version of the Form I-9 dated 02-02-09 will continue to be valid for use until further notice.

By way of reminder:

1.  I-9’s cannot be kept in personnel files;

2. You cannot tell employees what dcumentation to use;

3. You are not required to keep copies of the documentation used ;

4. Do not “over document” by taking in documentation that covers columns A,B, and C.  This could be viewed as discrimination.

I know most of you probably know all of these points but we still find clients who do not.

Court of Appeal Reverses Trial Court in Starbucks Case

July 5, 2009

Last year I reported that Starbucks had lost a case regarding managers and supervisors sharing in the “tip pool.” The Court of Appeal has now reversed the lower court and determined, based on the written policy regarding tips that the managers could participate in the tip pools since patrons had the option of either putting the tip in a collective pool or giving it straight to the deserving employee. This is definitely not going to make the employees happy! The lower court had awarded them $86 million plus another $19 million in interest (ouch!)

The court’s reasoning was sound. They felt that certain key facts were imporant.

1. The vast majority of the time the shift superviors and baristas performed the same job function;

2. These employees rotate jobs and work as a team throughout the day;

3. Customers intend that the tips placed in collective tip boxes collectively award all of the servicing employees;

4. Starbucks’ manner of dividing the collective tips based on the hours worked by each employee is fair and equitable.