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PowerPoint and Handouts from "Drafting Your Employee Handbook" Seminar

Posted by Molly DiBiancaOn November 1, 2008In: Employee Handbooks, Seminars, Past

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Drafting Your Employee Handbook is the title of an employment-law seminar I presented to two Delaware employers earlier this week.  The materials and PowerPoint slides from the seminar are linked below for your reference.

The

includes a number of policies, separated into various categories.  The first three categories specifically address common issues faced by Delaware employers.

  • There are 10 of the policies I consider to be the "must-have" policies.  There are 5 pay-related policies because, in Delaware, that information must be provided to employees in writing at the time of hire. 
  • The required pay information includes pay rate, pay period, place of payment, method of payment, any other benefits, including sick and vacation time, and the name and phone number of the individual who can be contacted with questions.  As a back-up, you can put most of this information in the handbook. 
  • There are also 5 technology policies that have been issues for so many employers but that still seem not to be included in most employee handbooks.

The rest of the policies are grouped by general category type.  Under each category type are some of the most commonly used policies.  Often I hear that employers just don't know what kinds of policies are out there and they need to see some samples to get ideas for what they may and may not want to include in their own handbooks.  The seminar handbook should help.

Employee Handbooks: Anti-Harassment Tip Sheet

Posted by Molly DiBiancaOn October 27, 2008In: Employee Handbooks, Harassment, Other (Title VII), Harassment, Sexual

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A legally effective anti-harassment policy is an absolute requirement for any employee handbook.  There is not a single reason to not have a policy that effectively establishes the organization's prohibition against harassment and related retaliation.  But there are millions of reasons to make sure that your handbook includes such a policy and that the workplace is set to manage a complaint of harassment should it receive one.   Employee Handbooks

To make sure your employee handbook includes a legally effective anti-harassment policy, a great place to start is with the EEOC itself.  In 2005, the EEOC issued the findings of a limited review of the anti-harassment programs in 43 federal agencies and one component's 64 sub-agencies.  The findings that were published included an excellent overview of the purposes of an anti-harassment program and the legal requirements of an effective policy.  The EEOC's report is as relevant and accurate today for private-sector employers as it was three years ago for federal-agency employers. 

According to the EEOC, an anti-harassment policy and complaint procedure should contain, at a minimum:

  • A clear explanation of prohibited conduct;
  • Assurance that complainants or witnesses will not be subject to reprisal;
  • A clearly described complaint process that provides alternative avenues for complainants;
  • Assurance that the employer will protect the confidentiality of the reporting employee to the extent possible;
  • A prompt, thorough, and impartial investigation process; and
  • Assurance that the employer will take immediate and appropriate remedial action if it determines that harassment has occurred.

Each of these elements are essential if you want your policy to be effective against a claim of harassment by an employee.   Employers cannot take advantage of an effective policy, though, without additional workplace safeguards.   The most important of these safeguards is periodic training.

Managers and supervisors should receive annual training to ensure that they understand their responsibilities under the company's anti-harassment policy and complaint procedure.  Training should review:

  • The types of conduct that violate the policy;
  • The seriousness of the policy;
  • Their responsibilities when they learn of a claim of harassment; and
  • The prohibition against retaliation. 

Employees should also receive periodic training.  After all, what good is a complaint mechanism with which employees are unfamiliar.  One important benefit of training employees on the organization's anti-harassment policy is the ability to communicate that harassment is not limited to sexual conduct alone.  Instead, an anti-harassment policy should cover all forms of harassment, including race, color, gender (both sexual and non-sexual), age, national origin, disability, and religion. Many employers' harassment policies are limited to sexual harassment, which is insufficient under the law. 

Drafting Your Employee Handbook--the Legally Effective Way

Posted by Molly DiBiancaOn October 27, 2008In: Employee Handbooks

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Drafting Your Employee Handbook is the title of the employment-law seminar I taught last week. I spoke on the topic in downstate Delaware and will be presenting another sold-out session in Wilmington, Delaware, on Thursday.  [For those interested, I'll be posting the materials from the seminar after this week's session].    Employee Handbooks

The agenda for the 2-hour program includes:

  • An overview of the purposes of an effective employee handbook and a discussion of basic drafting principles to keep in mind when writing a handbook; 
  • A review of the elements of each of the 10 policies that absolutely must be included in every employee handbook;
  • A discussion of other, recommended policies, as grouped into 10 broad categories;
  • An in-depth look at 5 technology-based policies that should be included in your next handbook update; and
  • A discussion about the best practices for implementing changes to your handbook.

Seminar attendees were Delaware small-business owners and HR professionals from a variety of industries.  As is usually the case in a seminar with attendees from multiple organizations, there were a number of different perspectives offered, lending to insightful questions.  The discussions gave me an opportunity to hear directly from employers about the specific problems they face in managing employees and implementing their desired policies. 

In follow-up to these discussions, I'm going to post a short series on some of the important considerations in drafting an employee handbook.  If there is a policy in particular that you'd like to know more about or if you've had difficulty in crafting a particular policy, feel free to e-mail me directly or post it in the comments section and we'll see if we can't try to incorporate it into the series. 

Employee Handbook Policy #502: Respectful Workplace

Posted by Molly DiBiancaOn June 14, 2008In: Employee Handbooks, Jerks at Work, Policies

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When I do employment law training and seminars, I solicit feedback from participants with a questionnaire.  One of the questions is what other topics are of the most interest to audience members. Recently, I've seen a surge of requests for employment law seminars on How to Create Employee Manuals. Because I aim to please, I'll be conducting a seminar on the topic in October.  But, to hold you over until then, I thought readers might appreciate some posts on specific handbook policies. 

man's fists ready to fight

Given the recent movement against Jerks at Work, we get more and more requests from clients for a Respectful Workplace policy for their employee manuals.  These types of policies have significant flexibility depending on the level of the organization's commitment to eradicating jerks in the workplace. 

Here are some pointers for crafting a Respectful Workplace Policy:

Start Here.

The golden rule for these types of policies is to start with a hard look at the values, both written and unwritten, of your organization.  The worst thing to do is to craft a policy that is totally out of line with your company's everyday practices.

Don't overpromise and don't overhype the company's commitment to a respectful workplace.  Employees aren't fooled that easily and they'll resent you for thinking otherwise.  If you implement a comprehensive policy, be prepared to stand by it and hold employees and management accountable.

Be Specific. 

As easy as it is to create policies in the abstract, a policy needs specifics in order to be effective or enforceable. The word, "respectful" is a start but use words with more concrete meanings.  Better yet, give examples of what is and is not considered respectful behavior. 

As a matter of course, all such policies should include anti-retaliation language that assures employees that there will be no retaliation for reporting incidents that the employee believes are in violation of the policy.

A Respectful Workplace policy often can be incorporated into an anti-harassment policy.  But if you choose to combine the two, be sure to differentiate one from the other.  In other words, harassment is illegal and will not be tolerated.  Disrespect, on the other hand, while not illegal, is destructive to the overall health of the organization and, therefore, will not be tolerated.  Be sure to separate the two.

Carry a Stick. 

Policies of any type are useless unless they include an enforcement mechanism.  Spell out what consequences there are for violations of the policy. And don't limit yourself to disciplinary consequences.  It's a good idea to identify the social consequences that behavior like gossiping, making snide remarks, and purposefully excluding coworkers can have on the team as a whole.

Make it a point to put responsibility on everyone with mandatory reporting.  If one coworker sees another gossiping or otherwise undermining another, make it their responsibility to report the conduct--either by going to HR or management, or by "calling out" the gossiper directly. 

Employees Turn to Moonlighting to Combat the Financial Downturn

Posted by Molly DiBiancaOn May 26, 2008In: Employee Handbooks

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Delaware busineses, like the rest of the country, have felt the pinch of a slowed economy. Delaware employees are no exception. Secondary employment or moonlighting has become common as a result.

The continually increasing and record-high price of gas has made it difficult for some to make ends meet. The Department of Labor (DOL) reports that the number of workers working two jobs has increased 5% since last year. Some workers have resorted to a second job in an effort to protect themselves from financial devastation. Others want to maintain a certain lifestyle and have taken additional employment to ensure they are able to make nonessential purchases. Despite how commonplace moonlighting may become, the practice has real consequences for employers, especially for the business where the employee works full-time.

Employers should consider implementing a moonlighting policy if they don't have one already in place. Some policies prohibit moonlighting outright. Of course, the risk of this is that your employees may be forced to find a full-time job that doesn't have sucha restriction--especially if the employee's financial state is particularly serious.

Other policies permit secondary employment but require the employee to obtain approval in advance. This enables the employer to addres any potential conflict of interest in advance if, for example, the employee wanted to work part-time for a competitor. Another benefit of pre-approval disclosure is that it gives the employer the opportunity to offer additional overtime hours or even a wage increase to keep the employee working only at the primary job.

There are two main concerns for employers when their workers seek additional employment. First, by adding more working time to their already difficult schedules, employees are more likely to experience high levels of stress or burnout. That is why some policies permit moonlighting but warn that, if the employee's performance suffers as a result, he may be required to resign from his second job.

Another, less prevalent concern is the type of work the employee may take. For example, some businesses in the professional services industries, such as law, medicine, and finance, may be uncomfortable with the idea of a female employee working as a cocktail waitress at the local pub.

A different set of problems can occur if the employee takes part-time work with a competitor. In that case, the employer risks losing what may be a highly valued worker to the secondary employer. But you also risk the possibility that confidential information or trade secrets may be disclosed, whether inadvertently or intentionally.

If you do permit employees to moonlight, be sure you have a policy in place that clearly communicates the conditions and consequences, if any, that come with secondary employment.

Any of the employment lawyers in our Wilmington, Delaware office can assist you in drafting your moonlighting policy.

Heading to the Shore . . . Or Maybe the Beach

Posted by Molly DiBiancaOn May 23, 2008In: Dress & Attire, Employee Handbooks

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Don't know the difference?  Residents of Delaware, Maryland, New Jersey, and Pennsylvania sure do.  "The Shore" refers to the New Jersey Shore and all of the wonderful towns that it includes.  "The Beach," on the other hand, refers to the Maryland and Delaware Beaches, including Ocean City, Maryland (not to be confused with Ocean City, NJ, of course), Rehobeth, and Lewis, Delaware, to name a few. 

beach chairs and ocean

Any self-respecting East-Coast native knows that Memorial Day weekend is synonymous with the start of the summer.  And with the summer comes the shore or beach, depending on your current geography. 

And what, you ask, does this have to do with employment law?  Lots, actually.  Just ask the blogosphere.

Dan Schwartz, at the Connecticut Employment Law Blog, for one, can point to three e-law items with strong ties to the beach season.  All three are right on target.  He reminds employers to take a refresher course in vacation and paid-time-off policies.  Because, let's face it, the major highways aren't log jammed on Fridays at 1 p.m. by mere coincidence. 

Dan also points out the need to be aware of the very common summer parties where interns may bring a bit more casual approach.  Hey, let's face it, once August comes around, it's not their problem anymore.  Permanent employees, though, must carry with them the effects of their conduct at the end-of-summer BBQ. 

In fact, the only difference between the pool party or the Margaritaville fiesta and the office holiday party is that one involves, in fact, expects, there to be a lot fewer layers of clothing. 

Just looking at this combination alone, you can derive several potential concerns. 

  1. Young summer interns.  Remember, the EEOC is watching over them and watching you in the meantime.
  2. Summer parties that start at 8 p.m. instead of the holiday party, which starts at 4 p.m.  No one can leave the office early during the summer workweek (Monday - Thursday) because they need to get enough done not to feel guilty when they take a half day on Fridays.
  3. Margaritas, Daiquiris, and other fruity concoctions go down easy all year round but most especially when it's 85 degrees and 89% humidity.

Of course, I love summer as much as the rest of the East Coast summer junkies and, by no means, am I trying to spoil anyone's fun in the sun.  But employers beware.  The cocktail above serves up a legitimate legal liability.

Have a great holiday weekend!

Is It Time to Update Your Electronic Communications Policy? If you're the Mayor of Detroit, the answer is "Yes"

Posted by Molly DiBiancaOn May 16, 2008In: Electronic Monitoring, Employee Handbooks, Newsworthy

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Delaware businesses must have a written electronic-monitoring policy if they want to monitor phone, e-mail, or computer usage by employees. Delaware law requires employers to get either a signed consent from employees or to have a message conveying the policy that is shown to the employee each time he logs on to the computer. And even in states without such laws, unless you have a written policy that communicated to employees, you stand to risk a privacy claim. The key is to ensure that your employees do not have a "legitimate expectation of privacy" in their use of your electronic systems.

And that's where your policy comes in. Current is the key. The modern trend in electronic-communications policies has been to include provisions specific to blogging, cell-phones, and text messaging. We often counsel clients to improve their policies to reflect the state of technology. It seems that we have a lot in common with the Mayor of Detroit, Maybe Kwame Kilkpatrick.

Mayor Kilpatrick has implemented a new policy that text messages sent on city-owned devices are considered private. As you may recall, Kilpatrick and his ex-top aide face perjury charges for testimony they gave during a whistleblowers' trial that they didn't have a romantic relationship. Sexually explicit text messages have contradicted that testimony. Kilpatrick's lawyers say federal law protects the release of such communications. The policy began Thursday, April 16, 2008.

Past policy had been that electronic communications were public. The mayor's office said in a statement Thursday that city policies are always subject to change. Hmmm. I suppose that employers might want to ensure privacy in electronic communications is preserved instead of eliminated Especially if they have something to keep very private.

Go to source web page: Crain's Detroit Business

Do You Wear a Flag Pin?: Keep Political Speech Out of the Office

Posted by Maribeth L. MinellaOn April 17, 2008In: Employee Handbooks, Public Sector

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flag-pin.bmp

At the democratic debate held last night at Philadelphia's own Constitution Center, Senator Barack Obama was asked why he did not wear an American flag pin in his lapel. While that may be an appropriate question for a presidential candidate, what happens if the issue sparks a political debate around the water cooler?

Can work and politics mix?

Probably not. That's not to say that talking politics at work is unlawful--it's just not a good idea. Politics bring strong emotions that may have no place in the office. Political debates can be loud, distracting, and offensive to colleagues. Let's face it, if you can't talk about who you're going to vote for at a dinner party with friends without stirring the pot, you should definitely think twice about doing it at work.

In fact, an employee's political actions at work can have harsh consequences. Employees should keep in mind that they could be disciplined - even terminated - for promoting their political views in the workplace.

The bottom line is that private employers have a lot of latitude when it comes to what an employee can and cannot say at work; private-sector employees essentially have no constitutional free-speech rights in the workplace.

This is not to say that employers have free reign to control their employee's viewpoints, or to force their own viewpoints upon employees. For example, a Tennessee state statute makes it unlawful for an employer to require an employee to vote a certain way to keep their employment or to threaten an employee with disciplinary action if he does not vote for a certain candidate or party. Notwithstanding Tennessee's unique law, an employer who discriminates against an employee for his political views can be subject to legal liability.

So what's the bottom line? Employees and employers need to be sensitive this election season. Calling employees together to watch the speech of one candidate shouldn't happen. Taking adverse actions against an employee because he expresses his view in favor of a candidate is certainly ill-advised. And management should not send out a memo or an e-mail in support of a political candidate. In short, pause before you ask your colleague where his flag pin is.