Tip of the Day

TIP OF THE DAY – WHAT “RIGHT TO WORK” REALLY MEANS

“But Florida is a right to work state” is a phrase frequently uttered by employees protesting everything from a termination to the enforcement of a noncompete. The common misconception is that “right to work” means an employee cannot be fired without cause, and that a company cannot restrict a former employee from going to work for a competitor. Neither statement is true.

In fact, “right to work” is a union term. A “right to work” state, such as Florida, is a state where an individual has the right to apply for and accept employment at a unionized company regardless of whether that individual has a union card. Once hired, the employee has the option of either joining the union, or not joining the union. By contrast, a “closed shop” is a workplace where, once the employees have voted in a union, all employees must join – even those who voted against having a union – and anyone applying for a job must join the union as a condition of employment.

Florida is a “right to work” state. That means an individual has a right to accept a job and go to work regardless of whether they choose to join the union and pay union dues. Florida is also an “employment at will” state, which means that a company can fire an employee at any time for any reason or for no reason at all (so long as the firing is not based on unlawful discrimination or retaliation for protected activity, or in violation of a written employment contract). And Florida has one of the most employer-friendly noncompete statutes in the country, allowing a company to protect its legitimate business interests by restricting employees from going to work for a competitor.

Unfortunately, misunderstanding of the term “right to work” often leads to feelings of entitlement by employees, and a false sense of security in the workplace.

TIP OF THE DAY – WEED OUT OLD POLICIES

The start of a new year is an excellent time to pull your employee handbook off the shelf and make sure the policies are up to date legally, and that they accurately reflect your practices in the workplace.

Potential problems include:

  • Policies that violate state or federal law (like a rule against bringing firearms on company property that runs afoul of Florida’s 2008 Right to Keep and Bear Arms in Motor Vehicles Act, a smoking policy that violates the Florida Clean Indoor Air Act, or a rule that violates the Fair Labor Standards Act by declaring that employees don’t receive overtime pay unless the extra work hours were approved in advance);
  • Policies that are rarely enforced (lack of uniformity in enforcement can lead to claims that you discriminated or retaliated against a particular employee by selectively enforcing a rule);
  • Policies that are outdated (does your handbook include a dress code that looks like it was written in 1980?);
  • Policies that are ambiguous (leading to misunderstandings, morale issues, and disgruntled former employees who are more likely to file a legal action against the company); and
  • Policies that are simply missing (often-overlooked policies include legal rights of reservists and employees returning from active duty in the military, job protection during jury duty, and mandatory reporting procedures to be followed if an employee witnesses the sexual harassment of another employee or observes an illegal practice).

Make sure all employees have signed an acknowledgment that they have read, understand, and agree to follow the rules in your employee handbook. And make sure any third parties dealing with employee issues have been given instructions that are consistent with the policies in your handbook (for example, if you use an outside payroll company, make sure they know if any portion of PTO should be carried over from last year, or if all balances are cleared effective January 1).

Don’t wait until a problem arises. Take time now to review your employee handbook. It’s your best defense against misunderstandings and claims of unfair treatment that often lead to costly litigation.

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TIP OF THE DAY – RECENT COLLEGE GRADS ATTRACTED TO SOCIAL MEDIA AND OTHER WORKPLACE BENEFITS

A recent survey of college students and recent college graduates conducted by Cisco, concluded that young professionals are looking beyond salary when they enter the workforce. See Cisco news release at: http://www.cisco.com/en/US/solutions/ns341/ns525/ns537/ns705/ns1120/cisco_connected_world_technology_report_chapter2_press_release.pdf

This is good news for companies that are not in a position to offer top salaries to recruit new talent. According to the Cisco study, other factors that heavily influence whether young professionals accept a position with a company – and choose to remain there – include:

  • The ability to use social media in the workplace
  • Flexibility in choosing mobile devices (iPhone, Blackberry, etc.) to use for work
  • Opportunity to work remotely some of the time, accessing work computers from their mobile device or home computer
  • Ability to blend business use and personal use of company-issued devices like smartphones, iPad, etc.

Make sure, however, that use of increased flexibility in these areas to recruit and retain employees is still tempered by reasonable policies governing the use of social media and mobile devices.

TIP OF THE DAY – THE DO’S AND DON’T’S OF PERFORMANCE REVIEWS

Effective performance reviews are an excellent tool in rewarding good performance, correcting problems, and shielding your business from potential liability. Unfortunately, if not done correctly, they can be your worst enemy in litigation with an employee who claims to have been wrongly discharged in violation of one of the federal, state or local employment discrimination laws.

Follow these tips to ensure that performance reviews are done properly:

DO conduct performance reviews on a regular basis.

DON’T wait until there is a problem with an employee before giving them their first performance review in five years.

DO include positive comments. Employees who feel they’ve been recognized and appreciated for their positive contributions to the workplace are more likely to be receptive to addressing areas that need improvement.

DON’T write a glowing review for an employee who is doing a bad job. If you later fire that employee for performance deficiencies, a performance review that said nothing but good things about their performance could be used against you if the employee claims the reason stated for termination was a “pretext” for unlawful discrimination or retaliation for protected activity.

DO counsel your employees on an ongoing basis about areas that need improvement.

DON’T make the performance review be the first time an employee has ever heard about an issue. For example, an employee who is habitually tardy should be counseled about that in between reviews. Then the performance review can point out that being on time is a continuing problem, despite previous warnings.

DO investigate any sudden radical change in an employee’s performance review prepared by their supervisor. Find out if the employee made an internal complaint or if any unusual incident occurred shortly before the performance review was conducted. Discuss the performance issues with the supervisor and the employee (separately), so you can be assured there is no claim of retaliation. Draft a memo to the file documenting the conversation.

DON’T just ignore a performance review that is completely inconsistent with all prior reviews for this employee.

DO stick to performance issues and avoid personal comments or any reference to health issues or personal problems outside the workplace when completing a review.

DON’T tie performance deficiencies to use of sick leave, FMLA, or membership in a protected class. For example, don’t criticize an employee for “being sick all the time” or “missing a deadline due to time off for surgery.” Don’t accuse an older employee of “slowing down” or use other phrases that might be construed as age bias.

TIP OF THE DAY – FIVE REASONS NOT TO MEDIATE AN EEOC CHARGE

EEOC charges are on the rise, filed by former employees hoping for a large settlement check and current employees trying to reverse a personnel action and avoid being fired. Of course there are cases where employees actually were wrongly discriminated against, but many, many claims are completely without merit. When an employee loses their job, it’s human nature to look for someone or something to blame; people rarely look in the mirror and admit, “I deserved to be fired.” Instead, some are quick to assume it must have been discrimination, while others feel they are simply “entitled” to whatever they can force the employer to pay.

As an employer, once you are notified that a charge has been filed against your company, the EEOC will invite you to participate in pre-investigation mediation. Here are five reasons to think twice before agreeing.

  1. Show me the money. Your willingness to participate in an EEOC mediation signals the employee that you are bringing your check book and there will be money on the table. The employee is dreaming of huge verdicts they’ve read about in the press (and they don’t realize most of those awards were either reversed on appeal or significantly reduced by the trial judge). If you have no intention of paying a settlement to the employee, don’t go to the mediation. You will not convince them that they have not been wronged. Instead, they will be disappointed that that they are not leaving with a large check, and your logical and well-reasoned argument explaining that the company did nothing wrong will only inflame them and make them more likely to press the case forward.
  2. People are watching. Yes, EEOC mediation settlements are supposed to be confidential. But when you pay money to an employee to settle a claim, word gets out. You do not want everyone whom you fire or even discipline to think they can get easy money quickly by filing an EEOC charge and going to mediation.
  3. Validation. Even if you don’t pay the employee a settlement at mediation, your mere participation validates that there is something to the claim. This encourages the employee to press forward, because you have now made it an interactive process. The better strategy is to take a hard line now; you can always reevaluate later whether this is a claim that should be settled.
  4. Most employees won’t file a lawsuit. Filing an EEOC charge is easy. The EEOC even does the paperwork for the employee. There are no filing fees and they don’t need a lawyer. But the majority of employees who file EEOC charges won’t end up suing the company. There are several reasons for this. First, most individuals can’t afford to hire an attorney and pay an hourly fee. They will have to find a lawyer who will take their case on contingency. And most contingency lawyers are reluctant to take a case that doesn’t have a strong settlement value, particularly against a company that has a reputation for not settling claims. If you are aggressive in preparing a position statement with documents and affidavits during the EEOC investigation process, your chances are good that the EEOC will find in your favor. A decision from the EEOC that there was insufficient evidence of discrimination makes it even more unlikely a plaintiff’s lawyer will be interested in taking the case. Once the EEOC issues its determination and notice of right to sue, the employee only has 90 days to file a lawsuit, or the claim is gone forever.
  5. Time is on your side. EEOC investigations take a long time. Although the employee has the right to request a right to sue letter after 180 days have passed, most don’t and some claims languish for two years or more at the agency. If you’ve done your job with the position statement, you already have all the documents and sworn witness statements you need. The employee, on the other hand, will be relying on former coworkers to testify and remember events from several years ago, by the time a lawsuit would ever be filed. And meanwhile, the employee has likely moved on with their life, and their commitment to pursing the matter tends to lessen over time.

So, when should you mediate? There are exceptions to every rule, and there are exceptions to the general strategy of avoiding pre-suit mediation of an EEOC charge. Here are some examples of when it does make sense to go to mediation:

  1. When it can only get worse. Sometimes there just isn’t any way to avoid liability. You’ve conducted an investigation, and discovered to your dismay that the employee in question was indeed sexually harassed by her supervisor, that she followed your HR policy regarding complaints, and that for whatever reason nothing was done to correct the situation. The more you look into it, the worse it gets, as you discover that after complaining to HR she was retaliated against by her supervisor. Her file documents that she had exceptional performance ratings prior to the complaint, and lousy ones afterwards, ultimately leading to her termination. Your best option is to go to the EEOC mediation, and resolve the case earlier rather than later. At this juncture, you can explore other options, including firing the harasser and reinstating the employee. Alternatively, you can offer severance, a positive reference and some outplacement services in exchange for a release – if the employee was recently fired, she is likely to be more optimistic about her future job prospects now than she might be six months or 12 months down the road when she’s become frustrated by a challenging job market, and her unemployment benefits are running out. She’s likely to be much more reasonable now about a settlement number than she would be after months have gone by and she’s applied for 150 jobs and still not been hired. And with facts like these, if you don’t settle, she’ll have no trouble obtaining counsel to file a lawsuit, and you could end up paying a substantial money judgment plus both your attorney’s fees and her attorney’s fees.
  2. When the situation can be salvaged. You may have a policy or practice that is in violation of law and can easily be corrected. If, for example, a disabled current employee is requesting a reasonable accommodation, this is something that might be able to be worked out in mediation and does not involve you writing a settlement check. In a perfect world, an issue like that would have been resolved internally, but it doesn’t always work that way, particularly since the recent amendments to the ADA went into effect. Many managers do not understand what is and is not a disability under the new regulations, and taking a fresh, objective look at the situation across the mediation table could mean the difference between clearing up a misunderstanding, and defending a costly lawsuit.

TIP OF THE DAY – HOW TO HAVE A GREAT HOLIDAY OFFICE PARTY AND NOT GET SUED

Holiday office parties are a great morale booster but can also get your company in hot water. Follow these tips for a fun event that doesn’t unnecessarily expose you to a risk of liability.

(1) Social Host Liability. The problem: If an employee leaving your function is involved in a DUI causing bodily injury or property damage, you could be held liable. The solution: Limit alcohol consumption. Suggestions include having the event earlier in the day, offering lots of alternative non-alcoholic beverages, provide food, don’t have an unlimited open bar. Be alert, and if an employee seems to be under the influence, have someone drive them home.

(2) Sexual Harassment. The problem: People speak more freely in an informal, party atmosphere, especially if alcohol is served. “Jokes” get out of hand, and can be misinterpreted. The solution: Remind all supervisors prior to the party that inappropriate comments and interactions with employees will not be tolerated. If you or another manager sees or overhears something inappropriate, step in immediately to diffuse the situation (ignoring it gives the appearance that you are condoning it). Suggestions include making the party a family event (if spouses, significant others, and kids are in attendance, inappropriate behavior is less likely to occur), plan appropriate activities, have a definite beginning and ending to the festivities, and limit alcohol consumption.

(3) Discrimination. The problem: Employees with different religious beliefs may feel left out, and later use the party as an example of the company’s intolerance for their belief system. In addition, well-meaning gift spoofs can backfire when they focus on stereotypes about age, race, religion, disability or gender. The solution. Be inclusive. Suggestions include delivering a speech to employees that mentions a variety of religious and ethnic holidays and wishes everyone well, in printed announcements refer to the event as a “Holiday Party” rather than a “Christmas Party” or “Hanukkah Party” or “Kwanza Party,” etc., include decorations that are representative of different traditions, and solicit employee suggestions in planning the event. If you receive a complaint, take it seriously and listen to what the employee has to say. Discourage “gag” gifts that could be perceived as offensive.

The best advice is for you to be a good role model. You set the tone for how employees are expected to conduct themselves at an office party, and they will be looking to you to take the lead.

TIP OF THE DAY – SAFETY IN ADVERTISING

Targeting your message may make sense in advertising, but it can signal trouble if the ad you’re placing is for an employment opportunity. Be careful not to use language that could be interpreted as an age or gender preference.

Describing the ideal candidate as a “recent graduate” or the position as “entry level” could signal a preference for a young candidate, and result in EEOC filings by older job applicants who believe they were rejected for discriminatory reasons.

TIP OF THE DAY – KEEP UNEMPLOYMENT PREMIUMS DOWN BY DOCUMENTING EMPLOYEE DISCIPLINE

Because Florida is an “employment at will” state, an employer does not need “good cause” to terminate an employee. An employee terminated without good cause, however, will be entitled to receive unemployment compensation benefits. Because the number of claims awarded to your former employees has a direct impact on increases to your company’s unemployment compensation insurance premium, you should take steps to ensure that benefits are not awarded to employees who were fired for misconduct.

An employee who is terminated because their performance is not up to your standards, or because they are simply unable to perform the job, is entitled to benefits. Likewise, an employee whose excessive absenteeism is a result of a health issue is eligible for benefits. However, an employee who repeatedly, after warning, violates company policy is not entitled to unemployment compensation. That behavior qualifies as misconduct under the statute.

The key issue in unemployment compensation hearings (conducted when the employee applies for benefits and the company contests their entitlement) involving policy violations is whether the employee had notice that their behavior was unacceptable and was warned that future violations could result in termination. The best evidence you can present is a written warning, signed by the employee.

Remember to do the following:

(1) Put a warning in writing so that there is no dispute about what information was given to the employee.

(2) Note in the warning whether the employee has been verbally counseled for the same behavior in the past.

(3) State whether the conduct violates a company policy, and identify that policy.

(4) Have all employees sign a form acknowledging that they have received, understand and will abide by company policies.

(5) Have the employee sign the written warning, acknowledging receipt of it. You can include a space for the employee to make a statement if they disagree with the warning.

By following these steps, you can protect your company from being charger higher unemployment compensation premiums as a result of benefits awarded to former employees who continued to willfully violate company policy after repeated warnings.

TIP OF THE DAY – 10 FRIENDLY QUESTIONS YOU SHOULDN’T ASK

A job interview is an opportunity to get to know the candidate on a personal level, and assess whether he or she will be a good fit in your organization. Often, however, friendly questions asked with the best of intentions stray into a protected area, causing the candidate to reveal information about their age, health, marital status, sexual orientation,* national origin or religion that, by law, cannot be considered in the hiring process. When that candidate is not offered the job, they may well make assumptions about your decision-making process that are completely incorrect, and you could be in the position of defending yourself and your company from allegations that the failure to hire was discriminatory.

Friendly questions that seem harmless on their face but can get you into trouble include the following:

  1. River City, huh? My cousin went to high school there. What year did you graduate?

  2. So, you’re new to the area. Do you need any help finding out about schools or churches?

  3. I see from your resume that you’ve got over 30 years experience. How long are you planning to work before you retire?

  4. You got married recently – congratulations! Are you planning to have kids?

  5. That’s a very unusual name. What nationality is that?

  6. Some of us are on a company softball team –I bet you’d be a great addition. Could we count on you?

  7. Being here on time is important to us. As a single parent, do you think your childcare responsibilities will interfere with your attendance?

  8. How do you feel about reporting to a (younger/female) supervisor?

  9. I couldn’t help noticing your accent. Are you from the Middle East? What do you think about what’s going on over there?

  10. Would you be relocating here yourself, or do you have a spouse or significant other who’d be coming with you?

None of these questions are necessarily asked with bad intentions. Each of them, however, has the potential for either eliciting information about membership in a protected class that would not otherwise be apparent pre-hiring, or creating the impression that certain protected characteristics are preferred over others in an employee.

By training your supervisory employees on proper interviewing, you can avoid unnecessary exposure to claims that your hiring practices are discriminatory.

*Although sexual orientation is not a protected class under federal law or Florida state law, numerous counties and municipalities have adopted ordinances which prohibit employment discrimination based on sexual orientation.

TIP OF THE DAY – EMPLOYEES ON JURY DUTY

What is your responsibility when an employee is summoned for jury duty? Under both federal law and Florida state law, an employee cannot be fired, threatened with termination or otherwise retaliated against based on their service on a jury, or the length of such service. Violate these laws and your company – and individual managers as well – could be held in contempt of court and fined. Additionally, the aggrieved employee can sue the company to recover lost wages, other compensatory damages, punitive damages and attorney’s fees.

Although you are not required to pay employees during jury service, if you do choose to pay employees you must notify them of any limitations on pay before jury service begins.

The best practice is to have a clear provision in your employee handbook stating your policy on whether jury duty is paid or unpaid leave, and explaining any limitations. (For example, some policies provide for paid leave for a specified number of days, and unpaid leave thereafter.) Require employees to notify the company when they are summoned, and provide updates as to the anticipated length of service. Under certain circumstances, an employee can be excused from jury duty if their absence would cause a hardship to the employer or the employee.