Troublesome Provisions in Employment Documents … · ̶“Your supervisor will provide you with an...

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Troublesome Provisions in Employment DocumentsMary Stuart

AgendaAgenda Job Descriptions Job Applications Handbooks Offer Letters Policies Severance Agreements

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Job DescriptionsJob Descriptions


Job DescriptionsJob Descriptions

1. Does the law require job descriptions?

2. How much time does it take to write a job description?

3. Do you have job descriptions for all positions in your company?


Job DescriptionsJob Descriptions Job functions

Physical demands

Skills or education required

Location and work schedule

Overtime or travel required


Job DescriptionsJob Descriptions If list item as required, cannot hire without requirements

Cannot rely on job description if actual duties do not comply with description

Value of job analysis or periodic updating


Job ApplicationJob Application


Personal Identifying InformationPersonal Identifying Information

Age identifying Date of birth Education dates

Social Security Number

Driver license numbers


Medical or Disability InformationMedical or Disability Information

Prior workers’ comp claims

Pregnancy

Essential functions of job with or without accommodation

If need an accommodation, what would be needed

If obvious disability, can ask about accommodation


Offer of EmploymentOffer of Employment


Offer LetterOffer Letter Consider including “or such other duties as may be

assigned”

Identify compensation as “annualized amount” May be reviewed periodically

Eligibility to participate in benefit plans As they may be amended from time to time Do not promise benefits or bonuses not yet in place


Offer LetterOffer Letter Specifying payments in the future

You will receive a $10,000 bonus at the end of 2014

“We look forward to a long and profitable future together”

Provide for employment at will and have letter counter signed


HandbooksHandbooks


Employee HandbookEmployee Handbook Sets expectations for employees

Not the place to set forth managers’ obligations “Your supervisor will provide you with an annual review”

Actions speak louder than words “Feel good” statements feel very bad to unsuccessful employees “We provide our employees with a fair and respectful

environment in which to grow and reach their career potential.”


Employee HandbookEmployee Handbook Do not limit right to manage or discipline

Avoid: “Violation of this policy can lead to discipline up to and including termination.”

Violation of any policy can lead to termination


PoliciesPolicies


EEOC and NLRB ScrutinyEEOC and NLRB Scrutiny Object to overly broad policies

EEOC’s concern is discriminatory impact Protected groups

NLRB concern is employee rights and concerted action Covers non-union work places

Both will challenge policies even if no one complains


Criminal Background ChecksCriminal Background Checks Can you refuse to hire someone who has a felony

conviction for domestic abuse to work in a call center?

1. Yes2. No3. It depends


EEOC and Background ChecksEEOC and Background Checks EEOC: background checks can be discriminatory

Criminal background checks can have disparate impact on males and minorities

EEOC: must be individualized analysis and job-related EEOC Guidance, April 25, 2012

Courts not always in agreement EEOC v. Freeman, 2013 WL 4464553 (D. Md. Aug. 9, 2013)


Criminal Background ChecksCriminal Background Checks

Still advisable to provide for individual review Nature of offense Time of offense Job duties

Some state laws prohibited consideration of certain criminal conduct California


Background Credit ChecksBackground Credit Checks If have such a policy, what are the parameters

What are you looking for

Are checks job related


Social MediaSocial Media


Protection of confidential information

Customer and client privacy Hospital staff Professional services companies

Disclosure of company affiliation if posting positive info

Avoiding discriminatory or harassing conduct

PurposePurpose


NLRB has taken aggressive stand against any policy that interferes with employees’ “concerted activity” Applies to union and non-union employees

Cannot have blanket, vague, or over broad policy Can discipline for sharing company trade secrets “Non-public information” not always trade secret, Target

Corp. (5/21/13), Boch Imports (1/13/14)) Cannot discipline for discussing employee issues Protected concerted action

Social Media PolicySocial Media Policy


What is “concerted activity” Discussions of the terms and conditions of employment

Concerted activity “My boss is a jerk, she’s made me stay til 8:00 every night

and won’t let me put in for overtime” “Yeah, my boss does the same thing”

Not concerted activity “This company sells junk and the boss doesn’t care”

Social Media PostingsSocial Media Postings


End of Employment PolicyEnd of Employment Policy EEOC is challenging policies that have a hard date when

employment ends. EEOC v. UPS (IL. D.C. 2/11/2014)

“In no event shall an employee’s leave, whether paid or unpaid, exceed twelve months.”

“An employee who has not returned to work within three days after an approved medical leave will be deemed to have abandoned her job.”


Overtime PolicyOvertime Policy Employees must obtain express advance authorization

of employee’s supervisor before working overtime. Any employee who fails to obtain advance authorization will not be paid for the overtime.

Good policy? Yes No


ProblemProblem FLSA requires payment for hours worked

Does not matter if voluntary Does not matter if contrary to policy Employee can be disciplined for failure to follow policy, but

still must be paid Must keep track of hours

FLSA claims currently very popular Very expensive


Dress codesDress codes Must be non-discriminatory

Religious discrimination Prohibition on head coverings Requirement of wearing pants

Cannot interfere with union activity Prohibition of clothing with insignia

ADAA Persons with disabilities may have to be accommodated


BYOD PolicyBYOD Policy Who has access

Confidentiality

Privacy

Concerted activity

FLSA issues


Severance AgreementsSeverance Agreements


Severance AgreementsSeverance Agreements Cannot waive future claims

Do not sign before last day of employment Second signing on last day; hold back some consideration

Beware of “Entire Agreement” boilerplate language Incorporate provisions of employment agreement Confidentiality Non-compete Assignment of inventions


Severance AgreementsSeverance Agreements EEOC recent case against CVS (Illinois federal court)

Objects to many standard provisions Non-disparagement clause Notification to company if receive subpoena Non-disclosure of confidential information Covenant not to sue

Asserts that disclaimer is not sufficient


Date post:	20-Jun-2020
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