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Monthly Archives

February 2008

FORM OF THE MONTH: DISCIPLINARY LEAVE NOTICE (PDF)

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Disciplinary leave provides a powerful alternative to a knee-jerk termination. Leave can be given with or without pay depending on the circumstances. We encourage businesses not to dock the wages of exempt employees for short term leaves (less than one week). This form is especially effective while investigating wrongdoing or after confronting insubordination. Watch the arguments of retaliation that come with leave without pay if you’re using it while investigating a claim of discrimination, harassment, etc.

IT MAKES SENSE TO PROTECT TRADE SECRETS AND CONFIDENTIAL INFORMATION

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In Navigant Consulting v. Wilkinson et al., the Fifth Circuit U.S. Court of Appeals affirmed a jury verdict requiring two employees to pay more $2 million to their former employer for breach of fiduciary duty, breach of contract regarding confidential information, and misappropriation of trade secrets. This case emphasizes the wisdom in taking precautions to protect trade secrets and confidential information.

Steps that employers can take to protect trade secrets and confidential information include:

  • Identify confidential information.
  • Identify classes of employees who should sign agreements not to disclose confidential information or trade secrets and develop a procedure for obtaining these agreements.
  • Set an exit procedure to remind employees of their obligations regarding protected information.
  • Maintain physical security over documents containing protected information.
  • Train managers on the need to protect and enforce confidential information and trade secret obligations.
  • Take action to enforce the company’s rights.

TAKE NOTE!

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Employment Testing. The EEOC has issued a new fact sheet on the application of federal anti-discrimination laws to employment tests and selection procedures for workers and applicants.

The sheet describes commonly-used tests in the modern workplace, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks.

It also sets forth “best practices” for employers when using employment tests and other screening procedures, including:

  • Determining the selection procedure with the least adverse impact on a protected group of employees.
  • Updating test specifications or selection procedures to conform to changes in job requirements.
  • Ensuring that managers understand the test procedure’s effectiveness and limitations, appropriate administration, and scoring.

Check out the fact sheet at the EEOC Web site.

WHAT’S GOING ON?

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One of the greatest challenges with building workplace relationships is that there’s always something else going on — with me, with them, and in the environment.

In fact, there’s always more going on.

  • Maybe they’re in the middle of a difficult divorce, or just had a fight with a loved one.
  • Maybe their kid is sick and they’d rather be home.
  • Maybe they’re interviewing elsewhere and checked out of this job long ago.
  • Perhaps their self-esteem is so low they don’t know how to make a decision.
  • Or they might be so burnt out that they’ve gone numb and they don’t care about anything or anyone.

They might be so burnt out they’ve gone numb and they don’t care about making any decisions. They could be in a great deal of pain and they’re ready to hurl this at you with the slightest provocation. Maybe your expertise is intimidating so they are afraid to ask you questions.

The point is:

Remain open to the fact that something else is always going on. Being present with the person for even a few minutes will allow them to gradually let go of what’s on their mind — so they can in turn be present with you.

DOES DRUG TESTING WORK?

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There’s been an ongoing debate on whether drug testing helps prevent drug use and workplace accidents. Today, the vast majority of employers engage in drug testing for new hires, “reasonable suspicion incidents,” and when required by the Department of Transportation. A study of the literature reveals these conclusions:

  1. Employees are highly resistant to giving urine samples without warning. Although many states still allow random drug testing, most do not. Bear in mind that federal statutes, such as those under Department of Transportation guidelines, require random drug testing.
  2. Employees tend to view companies that engage in random drug testing as being less employee-friendly. There’s a great deal of opposition to drug testing where it’s not limited to individuals performing dangerous or safety-sensitive work.
  3. Most employees view drug testing as justifiable only for current employees who seem to be under the influence or for job applicants. Employees find it distasteful to be subjected to post-accident testing in cases where the mishap clearly resulted from non-human error.
  4. There’s evidence that some high caliber job applicants refuse offers from organizations with offensive testing practices (this is the case even where the applicants don’t do drugs).
  5. Not only does drug testing elicit negative responses from most employees, there’s also a lack of definitive evidence that it helps to achieve organizational or productivity goals. In reality, many workers don’t do drugs on the job. Although proponents presume that testing will discourage drug use, the employees most deterred by the testing process are likely to be casual off-hour users who abstain from on-the-job use to avoid potential embarrassment and job loss. Since many addicts don’t have control over their drug intake, testing might not deter their substance abuse. As a result, it might be effective in pre-hire screening, but not in preventing current employees’ drug use in the workplace.
  6. Testing can only distinguish between somebody who has used, or been exposed to a drug, and someone who has not. It cannot tell when the drug was taken, how much was taken, how frequently it was taken, or the effect of the drug on the user.

Of course, employers want to know how they manage the two-thirds of people who do drugs that in fact have jobs. Perhaps the question should be: “What is it about the job that causes people to want to use drugs?” Is it too stressful? Too boring? Is there a culture of drug use? Does it emanate from the top? Or is the job simply so undesirable that it attracts the least desirable employee pool?”

The bottom line: It makes sense to do a post-offer, pre-hire employee physical that concludes with drug testing. Consider using Kroll.com. Limit post-hire drug testing to random testing required by the DOT or other government programs and “reasonable suspicion” testing, whether there was an accident or not. To learn more about drug testing, go to Wikipedia, NIDA (www.nida.nih.gov), and SAMHSA (www.workplace.samhsa.gov).

MAKE SURE YOUR TEMP AGENCY DOES ITS JOB

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A recent California case, E-Fab Inc. v. Accountants, Inc. Serv. 153 Cal. App. 4th 1308 (2007) reinforces the importance of making sure any temporary agency does its job accurately and gives you proof of this.

When E-Fab needed a temporary accountant, it contacted Accountants, Inc. Services. They represented to E-Fab that the employee placed with the company had proper qualifications, credentials, and accomplishments.

Unfortunately, during the next seven years, that employee embezzled approximately $1 million from E-Fab. After discovering the embezzlement, the company contacted law enforcement and found that the employee had prior criminal convictions for theft and fraud and had been incarcerated and falsified academic credentials. The court allowed E-Fab’s lawsuit against Accountants, Inc. Services to continue, despite arguments that it was time-barred.

LESSON LEARNED:

Have the temp firm prove that they’ve done their homework. Make sure they obtain consent from any employee placed with you to provide their criminal background check, credit history, motor vehicle records, and credentials. Don’t take it for granted that the firm is doing their job.

Also pay close attention to any contractual language that mitigates or protects the temporary agency from not doing its job when placing a candidate.

NLRB LIMITS EMPLOYEE USE OF EMPLOYER E-MAIL SYSTEMS FOR UNION PURPOSES

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On December 16, 2007, a 3-2 ruling by the National Labor Relations Board gave a major victory to employers by holding that an employer may prohibit employees from using its e-mail system for any “non-job-related solicitations,” including union-related communications. The NLRB decision provided long-awaited clarification to employers and employees on the use of e-mail, and delivered a setback to unions, who have seen e-mail as an open forum for employees to discuss their concerns. For Facts of the Case, The NLRB’s Ruling and Lessons Learned, click here.

OFCCP ISSUES NEW FAQS

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The Office of Federal Contract Compliance Programs, which ensures compliance by government contractors with affirmative action requirements, has issued Frequently Asked Questions regarding the OFCCP’s Review of Contractor Compensation Practices. In the FAQs, the OFCCP:

* Described the tiered process it uses for a compliance review, consisting of a desk audit followed, where necessary, by a focused review or full compliance review.
* Listed the criteria it examines during its compensation evaluation.
* Explained what additional information it might require if potential compensation discrimination is indicated.
* Noted that the Supreme Court decision in the Ledbetter v. Goodyear Tire & Rubber Co. discrimination case did not affect the OFCCP Interpretative Standards for Systemic Compensation Discrimination, which uses statistical analyses to examine pay discrepancies.

The FAQs are available at the OFCCP Website.

TRAINING ON CUSTOMER PHONE CALLS

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An excellent teleseminar by the Information Marketing Association (www.info-marketing.org) discussed their criteria for “Simple Ways to Get Better Results from Your Customer Phone Calls.” Here are the main points:

  • There’s no substitute for training in “best practices” for customer phone calls.
  • Identify the most frequently asked questions and have a script for each one of them. Consider putting together a workshop among your employees to help draft these questions and responses. Record either live or practiced phone calls for training purposes. If you do the former, make sure to have a notice on the phone call that it may be recorded. Recording equipment is relatively inexpensive: Get a $15 telephone adapter at RadioShack with a $35 Olympus recorder and you’re set.
  • Record these scripts on a CD so that employees can listen to them.
  • Create scripts for both inbound and outbound phone calls.
  • Consider ancillary opportunities with phone calls: Obtaining testimonials, referrals, or upsells.
  • Engage in “mystery shopping” to make sure that your employees are following the scripts they’ve been handed.

FMLA REQUIRES INDIVIDUALIZED NOTICE

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In Downey v. Strain, the Fifth Circuit U.S. Court of Appeals has reaffirmed Department of Labor regulations requiring employers to give employees individualized notice of Family and Medical Leave Act (FMLA) leave.

Susan Downey took leave related to knee and shoulder surgeries from November 2002 through March 2003 and was charged with 424 hours of FMLA leave. Under FMLA, eligible employees are entitled to 12 weeks of leave in a 12-month period, plus reinstatement in their job upon their timely return to work. Based on her 40-hour work week, Downey was entitled to 480 hours of leave. In June 2003, she suffered a work-related knee injury and had surgery, requiring another two months of leave from the end of July through the beginning of October 2003. The employee’s supervisor charged this leave to FMLA, but did not inform Downey of this. Her FMLA leave was exhausted on August 7, with the rest of the time consisting of other paid leave. When she returned to work in October, she was not reinstated in her previous job, but was reassigned to another division where she received fewer fringe benefits.

Downey sued, arguing that her supervisor had interfered with her FMLA rights by failing to provide her with individualized written notice that her second leave would be designated as FMLA leave. She claimed that, had she known that the second leave would be counted as FMLA, she would have postponed her surgery to a time when it would not have caused her to exceed her FMLA entitlement. The jury agreed, and the defendant appealed, arguing that the regulations requiring individualized notice were invalid.

Section 825.208(a) of the FMLA regulations provides, “In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.”

Section 825.208(b)(1) provides, “Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave.”

The Fifth Circuit reaffirmed these regulations, and upheld the District Court ruling that the employee must demonstrate that she suffered harm from the FMLA violation (e.g. no notice) before being entitled to a remedy. Because the plaintiff was able to show this, the appeals court affirmed the jury verdict in her favor.

LESSON LEARNED:

This case emphasizes the importance of informing employees specifically, and in a timely fashion, that their time off (whether paid or unpaid) is designated as FMLA leave, even if provisionally before they receive a proper health care certification form. Failure to notify opens an employer to liability for damages under the FMLA.

Case summary and additional compliance articles provided by Worklaw Network Member Shawe Rosenthal, LLP.