Tag Archives: Policy

The Best Offense is a Good Defense…And Other Lessons Learned from the Trenches

Contributed by Noah A. Frank

Not all employment disputes can be avoided: employees are unpredictable people after all. 

Employment disputes are draining: they distract you from your primary function of running a successful company, lead to damaged good will and feelings, and can be costly.  From our extensive experience in employment and labor law, we have repeatedly seen that documentation drives cases and allows for successful early resolution of a case.  In an ever-changing world of regulations, statutes, and requirements imposed on employers, proper documentation can provide objective measures for management decisions and a basis for a trier of fact to find in your favor.

Tip 1: Confirm all job offers in writing.

Various states’ laws, such as the Illinois Wage Payment and Collection Act, mandate or strongly suggest written notice to employees of various terms of employment.  Include relevant terms such as compensation rates, expected or typical hours of employment, job location, whether employment is at-will, and management’s right to change these terms.

Use the same types of letters for promotions, job changes, raises, pay decreases, and demotions. 

Tip 2: Confirm documents provide that employment is at-will.

Employment handbooks should conspicuously indicate that employment is at-will, and that the handbook is not a contract.  Where the handbook provides a progressive discipline process, ensure that management has the right to bypass one or more steps, including leading directly to termination.

Tip 3: Investigate and record incidents.

Investigate reported incidents and complaints.  Document the findings, and any resolution – this includes “verbal” warnings kept in the employee’s file.

Tip 4: Confirm employees’ responsibility for following policy.

Ensure that employees have received your employment policies.  Ensure they are actually aware of them.  Ensure that supervisors and managers are also aware of policies and their responsibilities for enforcing them.

This includes at minimum: anti-discrimination, anti-sexual and other harassment, anti-retaliation, and safety policies.

Tip 5: Ensure that performance reviews are accurate.

Not every worker can truly be “average” and “exceeds expectations.”  If they are, then it is time to raise your expectations! 

Tip 6: Confirm job descriptions are accurate and include essential functions.

A job description that accurately provides the required knowledge, skills, and abilities of a worker is the first piece of evidence for determining whether an:

  • employer can make any reasonable accommodation under the Americans with Disabilities Act (ADA);
  • employee’s performance-based termination was justified;
  • employee should be removed from work entirely under the Family and Medical Leave Act (FMLA); or
  • employee can be returned to work within a doctor’s restrictions following a work accident.

Proper documentation before it is needed can be crucial in many areas of employment law.

Tip 7: Get a preventative audit.

While not every dispute can be avoided, regular audits of policies and documents can help ensure your compliance with employment law.

The Ends Do Not Justify The Means – D.C. Circuit Court Orders NLRB to Explain Itself

Contributed by Beverly Alfon

Over the last several months, the National Labor Relations Board (NLRB) has continued to pick at common employment handbook provisions such as company investigation policies, policies prohibiting defamatory or disparaging comments, confidentiality policies, and social media policies.  Recent Board decisions and various memoranda from the NLRB’s General Counsel have bolstered the perception among employers that anything goes so long as the ends justifies the means. 

Last week, however, the U.S. Court of Appeals for the District of Columbia Circuit had the opportunity to review a Board decision related to an employer’s policy banning insulting, provocative, and confrontational messages on employee clothing and the enforcement of that policy with respect to an employee’s union-sanctioned t-shirt (Medco Health Solutions of Las Vegas Inc. v. NLRB, D.C. Cir., No. 11-1282, 12/14/12).  The Court remanded the case back to the Board, reasoning that the Board failed to explain how the employer violated the National Labor Relations Act.  Specifically, the Court emphasized the Board’s complete departure from the framework that it established in another case, Lutheran Heritage Village-Livonia. In Lutheran Village, the Board held that an employer’s rule that neither expressly nor inherently restricts protected activity violates the NLRA only if: (1) the rule was promulgated in response to union activity; and, (2) a reasonable employee would construe the rule to prohibit protected conduct.  According to the Court, neither factor from Lutheran Village was met here.

As a result, although the Court agreed that the employee was engaged in protected activity when he wore the t-shirt to work, it declined to approve the Board’s failure to respond to the Company’s “straightforward” argument that it prohibited the shirt because it was insulting to the company and harmful to the company’s effort to attract and retain customers and failure to identify what evidence it required from the company to support its position.

Bottom line:  The D.C. Circuit’s remand order in the Medco Health Solutions case sends a clear message to the Board that it must do a better job of explaining and supporting its rulings.  However, it will not curb the NLRB’s active scrutiny of common employment policies and handbook provisions.  Employers must remain alert regarding NLRB determinations in this area and consider the factors set forth in the Lutheran Heritage Village case before disciplining an employee for conduct that may be protected by the National Labor Relations Act.