Employment Law Bits

Making sure your company’s policies are up to speed legally

Employment law is constantly changing. These changes can result from many sources including the legislature, various regulatory agencies and court cases. Accordingly, employers must keep up with these changes. This is especially important in Massachusetts in light of the implementation of certain provisions of the new health care law.

To avoid litigation, a comprehensive employee manual is a great way to start. But it’s only effective, however, if it is regularly updated to reflect the current laws and standards. A company audit is a great way to ensure that you are in full compliance.

Following are some steps in conducting a company audit:

• Put together an audit team including either in-house or outside counsel, a member of the Human Resource team and a fair representation of your company’s mangers and employees.
• Any member of the audit team should be informed about the handling of confidential information.
• Start with your employee manual and carefully review it to make sure that it accurately reflects not only the current state of the law, but also the actual policies and practices occurring within your company.
• Inspect employee bulletin boards to assure that proper disclosure notices are posted.
• Determine if your company’s policies are implemented consistently. If not, make a plan to do so.
• Remember that many lawsuits against employers can be traced to four distinct areas: hiring, employee evaluation, employee discipline or termination and post-employment. A careful review of how your company conducts itself in regard to these areas can help keep everyone on the same page.

The most important areas to target in this auditing session are:

• Occupational Safety and Health Act
• COBRA
• Employee Retirement Income Security Act
• Title VII of the 1964 Civil Rights Act
• Family and Medical Leave Act
• Americans with Disabilities Act
• The new Massachusetts Health Insurance Law

For more information or ideas on conducting an employment law audit, contact an employment law professional.

When does an employee handbook become an employment contract?

Employers are always told to create handbooks that contain their companies’ policies. What employers are not told is that if they are not careful, their handbook could be considered a contract, binding the employer to certain obligations. Since Massachusetts is an “At-Will” employment state, employers are encouraged to take steps to lessen the likelihood that their employment handbooks will be considered contacts.

Steps to help prevent your handbook from being considered a contract include:

• Retain the right to unilaterally modify the contact
• Do not negotiate any terms of the handbook with the employee
• The handbook should provide only guidance to the employee on its policies
• The handbook should never state a term or length of employment
• Do call special attention to the handbook during the hiring process
• Do not require that the employee sign the handbook

The above is a good start, and there are more, so don’t hesitate to solicit legal review of your new employee training methods.

Employment "At Will" - what that really means

In Massachusetts, a basic rule exists that all employment relationships are “at will.” In an “at will” employment relationship, either the employer or the employee may terminate the relationship whenever they choose.

There is no requirement that an employer give notice to the employee that they are being fired. However, there is also no requirement that an employee give notice that they are quitting. A two-week notice is generally considered to be a courtesy but not a legal requirement.

There are exceptions to this general policy. The “at will” doctrine is a default rule for employment practices and gives way to any binding agreements by the parties. Employers and employees are free to dictate the terms of employment through an employment contract.

Courts in Massachusetts have been willing to find that employee handbooks are similar to contracts. It is important, then, to make sure that your employee handbook clearly designates that employment remains “at will. “

Another limitation to the “at will” doctrine includes terminations that violate public policy. This prevents employers from terminating the employment of “at will” employees for any reason, even if there is no contract between the parties.

Defining medical certification requirements within your company

Do have employees who call in sick repeatedly with the same medical conditions? There are ways to prevent your employees from taking advantage of you. You may require that an employee provide medical certification from a healthcare provider before allowing him to take leave for his own serious health condition or that of a spouse, sibling or child.

When asking for a medical certification you must inform your employees of the requirement in writing, and, at a minimum, give your employees fifteen days to comply.

It is important to know what to ask your employee to provide. Typically suggested details are: medical facts about the condition, the date the condition began and an estimation regarding how long the condition will last. You need to also think about whether the medical condition actually interferes with the duties of the employee’s job. If so, it is a good idea to include this as a possible connection.

You should set even standards when asking for certification. All employees should be asked for certification regardless of their position in the company and whenever they request leave.

Does your employee handbook include a section on medical leave? Do you know what do if you want a second or even third opinion. Do you have certification policy? If not, it is a good time to begin reviewing your medical leave policy with a legal expert.

The dangers of not developing an employee cell phone use policy

These days almost everyone has a cell phone, including your employees. Many consider their personal cell phones to be imperative for emergency communication and convenience. However, many of the extra features on today’s cell phones can create hidden dangers for employers.

For example, almost every cell phone now on the market comes equipped with a camera that can discreetly take pictures of almost anything that quickly be uploaded to a computer and made available on the internet.

Many phones also now come equipped with voice recording and video recording technology. Some phones may even be able to transfer video to another cell phone in real time. This allows users to instantly transfer video to another phone in a completely different location.

An employee with access to confidential documents could take video or photos of these documents and use them against an employer at a later time. Issues of privacy can also arise regarding employees taking photos or video of other employees without their knowledge or consent.

Since many employees regard their cell phones as an important lifeline of communication, it is increasingly important for employers to develop a cell phone use policy that protects their interests while balancing the interests of their employees. This will not be an easy task; however, in this age of rapidly developing technology, it is an incredibly important one.

Jury duty - employers' must pay and respect employees' obligations

When drafting an employee handbook or an employment contract, it is important to remember the legal requirements regarding time off for jury duty. Both Massachusetts and Federal law contain provisions governing the treatment of employees who are called to serve on a jury.

For employees called to serve on a Massachusetts jury, state law requires an employer to pay regular wages for the first three days of jury duty. This requirement applies to all employees, including full-time, part-time, temporary, and casual status. It is also illegal for an employer to discharge any employee for missing work to attend jury duty.

In the case of an employee called to serve on a Federal jury, Federal law does not explicitly require employers to pay employees for missed work; however, employers are prohibited from discharging, threatening to discharge, intimidating, or coercing any permanent employee who is called to jury duty.

In addition, when employees are subpoenaed to testify, MA law prohibits their employers from penalizing them for work missed as a result of their testimony. Although the law does not specifically require employers to pay these employees their normal wages, failure to do so could be considered penalizing the employee, which is in violation of the statute.

There are many things to consider when drafting an employment policy concerning jury duty. Employers should be careful to ensure that they are complying with State and Federal law.

Establishing an email and Internet use policy

You should develop a comprehensive email and Internet use policy in concert with revising your employee handbook. Once the policy has been developed, the next step is to communicate it to your employees. Work with your network administrator to include an advisory each time an employee signs into the company system.

As previously mentioned, the email and Internet use policy should be documented in your employee handbook, and when you hire a new employee, it’s a good idea to have him or her sign an orientation statement acknowledging receipt of the policy. You might also want to consider conducting a training session regarding your email and Internet use policy so employees have the opportunity to ask questions and alleviate fears about it.

Electronic Mail and Internet Use Policy Quick Tips

• Make sure that everyone is familiar with the policy
• Personal use policy: Inform employees whether personal use of the Internet or email is permitted. It is advisable to prohibit all personal use of Internet and electronic mail on company time and equipment.
• Monitoring rights: Advise employees that their Internet and email activity is monitored.
• Prohibited uses: Inform employees what uses of Internet and email are permitted or prohibited.
• Report violations: Develop an easy process for employees to report mistakes or violations.
• Consequences: Provide employees with information regarding the consequences of violating the email and Internet use policy.
  

By: Kevin V. Maltby, Esquire

Employee handbooks and employees’ Internet and email use

Recent case law suggests that employers may be liable for the conduct of their employees when they use the company’s email and Internet connection. For example, you may be liable for an employee disseminating pornographic material by email because it was generated from your location. Before you slide down a slippery legal slope, you might want to consider a few safeguards.

When you consider updating your office equipment, software and computers, you should also upgrade your employee handbook to include a comprehensive email and Internet use policy. Recent case law suggests that Courts are balancing whether an employee has a reasonable expectation of privacy against the realities of the work place environment.

While it is clear from the Supreme Court that there are no absolutes regarding this issue, it is also apparent that you can reduce an employee’s expectation of privacy by adopting an unambiguous written policy regarding the use of the Internet, email and instant messaging.

Such a policy should be included in your company’s employee handbook, and you should alert your employees that they should have no expectation of privacy relative to email, Internet use or instant messaging. You should warn your employees that you reserve the right to inspect files on the network and their desktops to assure compliance with company policies and procedures.

By: Kevin V. Maltby, Esquire

Employers: Auditing your employee policies may prevent legal woes down the line.

There are constant and ongoing changes occurring within employment law. These changes can result from many sources including the legislature, various regulatory agencies, or court cases.

To avoid litigation, your company’s policies and procedures should reflect the latest state of the law. A comprehensive employee manual is a great way to start, but if you fail to regularly update that manual to reflect the current laws and standards, it isn’t worth much. A company audit is an ideal way to ensure that you are in full compliance.

The following steps are one way to conduct a company audit:

1. Put together an audit team including either in-house or outside counsel, a member of the Human Resource team and a fair representation of your company’s mangers and employees.
2. Any member of the audit team should be informed about the handling of confidential information.
3. Start with the employee manual and carefully review it to make sure that it accurately reflects not only the current state of the law, but also the actual policies and practices occurring within your company.
4. Inspect employee bulletin boards to assure that proper disclosure notices are posted.
5. Determine if the company’s policies are implemented consistently. If not, make a plan to do so.

Remember that many lawsuits against employers can be traced to four distinct areas: hiring, employee evaluation, employee discipline or termination, and post-employment. A careful review of how your company conducts itself in regard to these areas can help keep everyone on the same page.

In addition, at a minimum your review should target important areas such as:

• Occupational Safety and Health
• COBRA
• Employee Retirement Income Security Act
• Title VII of the 1964 Civil Rights Act
• Family and Medical Leave Act
• Americans with Disabilities Act

For more information or ideas on conducting an employment law audit, contact an employment law professional. An ounce of prevention is worth a pound of cure.

Beware restrictive progressive discipline language in your employee handbook

Employers, make sure that your progressive discipline policy language does not inadvertently conflict with employees' at-will status. This may undermine your ability to terminate problem employees.

If you have a progressive discipline policy in your employee handbook, make sure to include a statement that you have the right to use any level of discipline, up to and including termination. Make it clear that progressive discipline will not always be used, but don't limit the situations in which you reserve the right to bypass progressive discipline.

Below are examples of sound language to be used in an employee handbook regarding your progressive discipline policy:

Example 1: “The following are examples of grounds for termination, but employees may be also be terminated for reasons not listed.”

Example 2: “ Employees may be subject to the following three-step progressive discipline process, but any or all of these steps may be skipped depending on the circumstances.”

Most circumstances will likely call for typical, systematic progressive discipline. But occasionally, an employer may find himself in a situation with an employee whose actions call for more severe discipline. Don’t compromise your ability to utilize discretion and promptly terminate employees who are bad for business.