Making It Legal:

Because “one size does not fit all.” And because “you get what you pay for.”
In “a whopper of a sexual harrassment claim” (thanks to blog author Jon Hyman for the turn of phrase I couldn’t resist), the case of EEOC v. V & J Foods, Inc., a Burger King franchise had an employee manual that outlined the procedures to be followed in a sexual harassment grievance. However, the policy was written in a convoluted and confusing manner and–significantly–provided no way to bypass a harassing supervisor. When a part-time teenage employee ran into a problem with her supervisor, she didn’t follow the grievance procedure in the manual.

The Seventh Circuit Court of Appeals didn’t care that she didn’t follow the proper procedure. The employment manual wasn’t clear to the average employee (in this case the average employee would be a teenager or high school graduate). In fact, the court found that the complaint procedure was confusing even for adults and, as a result, the grievance process was unreasonable.

The issue for your employment manuals is that they need to be clear and easily understood. If you do download them from the internet, make sure you show them to your attorney in order to demystify the boilerplate and insert the right provisions for your business. Otherwise, you could end up with a document full of policies and procedures that no one is required to follow.

A written contract doesn’t have to be filled with legal mumbo-jumbo in order to bind your business. That was a hard lesson learned by a Missouri company, in the case of Baum v. Helget Gas Products, Inc.

In the Baum case, the prospective employee (Baum) took copious notes during his interview, including descriptions of salary, benefits and the length of his contract. He wrote “Contract With Helget Gas Products St. Louis Mo. Market” across the top and handed it to the Helget manager, who signed it. When Helget fired Baum a year later, Baum sued and won, saying he had a three-year contract. The court agreed.

The moral of the story: Don’t sign anything employee-related without first running it by legal counsel or HR. What the Helget manager could have done is to make a copy of Baum’s notes and tell him that they’d be provided to corporate counsel, who would draw up the appropriate documents in accordance with company policy.

Well, employees are people, too. And they may have some of your company equipment at home (laptop, cell phone, etc.).If they damage the equipment, do they have to pay for it? Can you dock their paycheck?

The answer, generally, is no. Many states prohibit companies from making deductions from an employee’s paycheck, other than those required by law (e.g., FICA and Medicare deductions), or authorized in writing by the employee and for the employee’s benefit (e.g., paying into the company’s health insurance plan). However, you might be able to set off damages if you have a clear (written) employee policy about intentional damage and if your state permits it. If you have a reason to be concerned about employees trashing your stuff (especially if they’re on the way out the door after being terminated), speak to your employment attorney.

Those who are NCIS fans may recognize the line from the episode “Driven,” where an AI-operated car supposedly kills one of its inventors.  The criminal shenanigans are only tangential to why I mention the issue.

The episode opens with the NCIS team sitting through sexual harassment awareness training. Like a lovingly dysfunctional family, the team members regularly head slap and pinch one another and make stupid/suggestive comments about each other. Abby, the young forensic scientist, is prone to Goth clothing, blaring heavy metal music while she runs experiments and, well, giving people a hug. She’s very sweet. The way 6-year olds are sweet when they want to hug you.  There’s no sexual overtone or predatory intent.  They want to hug you because you look sad. Or they’re overjoyed that you came through a dangerous situation safely.  Or they’re just happy to be with you.

As an adult, however, Abby is horrified and dismayed when she learns that not only is her predilection for affection frowned upon, it’s considered “Code Red” behavior according to the NCIS employment attorney. For the rest of the episode, she warily asks “permission to hug?” when her natural inclination strikes. [Special Agent Gibbs, the father figure of the group, paternally responds with, "Abby, you never have to ask for permission with me." Awwww.]

It’s a great episode and I love the show (obviously). But there are lessons to be learned from it in the real world–especially when it comes to employees and sexual harassment awareness. Although the environment among the NCIS team would probably make most employment attorneys’ hair curl, there is one key factor that makes the lax behavior OK: consent. NCIS is a work of fiction . . . but every character is comfortable with the back-slapping, double entendre-filled environment.

That’s not always the case in the real world. A colleague told me about a client construction company whose culture had radically changed over the past decade. Once populated with 90 percent men and 10 percent women, the company was now about 60 percent men (many of whom were out in the field) and 40 percent women. The kinds of jokes, comments and touching that might have been OK for a while (or were endured for the sake of keeping a job) were no longer tolerated. Consent was NOT granted or, once granted, had been withdrawn. 

Unfortunately, one of the employees “didn’t get the memo.” He had an easygoing relationship with his female assistant (25 years his junior).  They used to banter about (her) social life and (his) married life. He took this as a green light to be “really good friends.” But when he sent her bouquets of roses (”She was upset about breaking up with her boyfriend!” he cried) and called her repeatedly on the weekend (she answered none of the calls), he crossed a line. He didn’t have her consent to take their “friendship” a step further. As a consequence, he made her feel extremely uncomfortable. His employer is furious–and terrified of the repercussions. The employee is currently the subject of a sexual harassment investigation.

That’s why attorneys get all hot under the collar about establishing bright-line tests for acceptable workplace behavior. In a personal relationship, we learn over time where people’s boundary lines are. Unless we do something completely obnoxious (or harmful), if we step over the line we get a stern talking to . . . and then all is forgiven.  We don’t often get those second chances in the workplace. Who’s to say whether “You look MAH-velous!” might be taken as complimentary or creepy? We can’t know for sure, until we r-e-a-l-l-y know the other person.  So much depends on the tone, manner and surroundings in which it’s said. Being cautious by nature, attorneys will advise, “say nothing at all, rather than say something and stick your foot in a legal cow pie.” As consent can ge given . . . and taken away . . . better to err on the side of caution.

Talking to an underperforming employee ranks right up there with telling a boyfriend he’s not pulling his weight in a relationship. Blecch. Not something you really look forward to. But if you don’t nip the situation in the bud early, it will fester until it reaches ugly proportions. You need to handle the situation directly, and tactfully. The boyfriend may get mad if you handle the situation poorly . . . but the employee could get litigious.

In her “A” response to the “Q” posed in a recent issue of the New York Enterprise Report, Barbara Kurka of the Katz Media Group offered these suggestions for turning the situation around:

1. Think before you speak. This is a delicate situation that needs to take place in a private setting and not be done in a rush. If you’re not prepared to explain, dispassionately, how the employee is not measuring up and what she can do to improve, you’re not ready for the conversation.
2. Know your standards. What does underperformance mean in your company? For that position? Are you using objective standards to measure performance (e.g., sales figures, renewed contracts)? What does the position require? The less objective your standards are, the more you could be wandering into a potential discrimination situation.
3. How long has the employee been underperforming? Is this a chronic problem or a situational problem? If it’s chronic, perhaps the employee isn’t right for the job. Or perhaps the company standards and benchmarks have not been clear. If the problem arose recently, look at the factors that might have had an impact: industry conditions, lack of cooperation from other employees or personal problems. While you want to listen attentively, you want to be sure to steer the conversation back to “what will get the employee to meet our standards?” You don’t want to get embroiled in sorry sagas of personal problems.
4. Decide what you’re willing to do to help the situation. Are you willing to provide more training or other resources to help the employee improve? Within what (realistic) time frame do you want to see improvement?
5. Confirm your conversation in writing. Make a plan for improvement that both you and the employee feel comfortable agreeing to, and set realistic goals for achieving it. Follow up on deadlines and timetables.

Like many employee-related situations, difficult conversations can lead you into thorny legal issues. Get some coaching from your company’s employment attorney to learn the right way to conduct them.

As if there weren’t enough issues to put into our employee manuals, the internet and Web 2.0 have made them proliferate.Each time there’s a new technology, lawyers have to evaluate: “Is it covered under our current policies?” And, not being the one to say “sure!”–and be wrong –voila! A new policy is born.

The latest addition that I’ve just come across is the employee WiFi use policy. As noted in Matthew Hegarty’s article in the October 2008 New York Enterprise Report, employers need to be on the lookout for unauthorized access to their networks. Given that so many more employees are working remotely (from a home office or just on the road, on the train while commuting, etc.), there are more places and opportunities for hackers to breach your system.

Here are a couple of items that Hegarty suggested:

• Use complex passwords. These are passwords that have a mix of letters, numbers and cases (UPPER and lower)
• Change passwords every 60-90 days.
• Use a Virtual Private Network. This is a private network that can be accessed online but requires a login sequence to access.
• Ensure encryption of wireless traffic (see Wi-Fi.org)

Speak to your IT professional about your options for wireless network security.

In tough economic times, it’s tempting to look at payroll and ask, “Who can we cut?” It’s like looking in the mirror, realizing that you’re overweight and immediately choosing liposuction as a fat-reduction measure. There are alternatives to drastically cutting your work force–especially as these are the very people you will need to rebound when times improve. See if any of these creative ideas can be applied to your company:

• Tighten your belt. You hear the heroic stories of the small band of loyal employees who took a pay cut when times were tough and were amply rewarded when things turned around. If each role in the company is indispensable to your functioning smoothly, speak to your employees to see whether they would be willing to accept a 10 percent to 20 percent pay cut for the time being. You may find that people would rather earn a little less than be unemployed altogether.
• Reduce expenses by going virtual. Sometimes, it’s not so much the employee costs; it’s the other costs of “housing” them that add up (such as rent, utilities, IT infrastructure). Have a good, long look at your overhead expenses to examine whether your company could “go virtual” with a network of home offices, move into smaller space and/or use Web 2.0 tools for greater efficiency.
• Outsource certain business functions. Yes, this is the one that may mean cutting staff, but it doesn’t mean you have to cut productivity. It’s often the roles that don’t involve a lot of face time with customers that can be outsourced effectively–such as accounting, marketing and administration. And outsourcing doesn’t have to mean sending the work over to India (or outside U.S. borders): You may find virtual assistant firms right in your neighborhood that would be delighted to help at a price below your employee plus overhead costs.

Whatever method you choose, be sure to speak to your employment attorney so you address the situation without stepping into any discrimination-related legal cow pies.

From my colleague Stephen Furnari comes this intelligent article on how to make employment non-compete agreements “stick.”  Courts are generally loathe to enforce an agreement that would keep someone out of gainful employment; companies are loathe to employ people who will walk away with their customer base and trade secrets.

So a delicate balance needs to be struck.  Steve’s article provides eight tips to crafting well-honed non-compete provisions and six practical steps to take if you think your employee has violated the non-compete agreement.  At the end of the day, though, speak to a business attorney before putting any of this into place.

Election Day is just around the corner, and I have to confess–I get a little misty when I enter the election booth and pull the thick curtains closed behind me. In so few countries around the world do people get to vote without coercion or fear of reprisal on who will lead their government. Whatever I may think about the current candidates for president (even if it’s “the lesser of two evils”), I do have a choice.  For the many freedoms we enjoy, we have the responsibility to participate in voting.  Not such a bad trade-off.

New York City employment attorney Deborah Shapiro reminded me that New York has laws on the books that require employers to give their employees “sufficient” time off to vote.  “Sufficient time” is deemed to be four consecutive hours.

Employees are entitled to voting leave if:

1. They are registered voters; and

2. They do not have at least four consecutive hours in which to vote, either between the time the polls open and the start of their work day or between the end of their work day and the time the polls close.

These employees are entitled to take up to two hours of paid leave. They also may take an additional two hours of unpaid leave, if necessary, to have four consecutive hours off while the polls are open (but employees who are exempt from overtime laws must not be docked for this time).

If employees wish to take voting leave, they must provide you with notice at least two days, but not more than 10 days, before Election Day. You are permitted to designate whether an employee takes his/her voting leave at the start or the end of the workday.

Different states’ laws may vary, so check with your attorney to see what the requirements are.

Need I say more? Check out this article from my colleague, Anna Lieber, as seen in The New York Enterprise Report. All the more reason to have an employee manual to provide guidance on acceptable (and unacceptable) workplace behavior!

For companies with employees, there’s a new rule in town (at least, in Chicago’s federal court): Under the Pregnancy Discrimination Act, women cannot be fired from their jobs for needing time off for infertility treatments.

As reported in the Wall Street Journal online, the ruling involved “a secretary who was laid off after taking time off for in vitro fertilization, then asking for more [time off for a further procedure]. Without ruling on the merits of her case, the court last month set a precedent by giving Ms. Hall a green light to sue her former employer for pregnancy-related bias.” Apparently, the plaintiff had been singled out for absenteeism as a result of seeking in vitro fertilization treatments.

For now, the decision applies only in Indiana, Illinois and Wisconsin, as it’s the first time a case like this has made its way to a formal (public) court hearing. However, other jurisdictions could pick up on it and adopt it in their own.

What caught my eye was an employee wage and hour webinar (which I missed) given by the National Federation of Independent Business, a lobbying organization dedicated to promoting the interests of small, independent businesses. But having reached the site, it turns out that NFIB.org has a number of handy resources and tips on employment and other legal issues. Check out the Small Business Toolbox. You’ll find information on labor laws and regulations, immigration issues, employees vs. independent contractors and more.