Agreements not to Reapply

As part of a separation agreement and release in exchange for severance, many employers include a provision that the separated employee will not reapply or be re-employed.  Such a provision can protect an employer from retaliation or other claims in the event the employer declines to rehire the separated employee if s/he reapplies.  It is important that "employer" in the context of a no-reemployment clause be defined to reflect properly the understanding of the parties - which entities are covered?  The clause should properly protect the employing entity but not be too broad.

The Equal Employment Opportunity Commission recently filed suit against AT&T, Inc. accusing it of retaliation against older workers for refusing to rehire them.  This suit is consistent with the EEOC's position that no-reemployment clauses can be per se retaliatory, even where they are consideration for a release agreement.  

In order to protect themselves in the event of a challenge, employers should make sure that no-reemployment clauses do not have a disparate impact on any protected group (such as older workers) and include a severability clause in any separation agreement to prevent invalidation of the release in the event one clause is stricken.

To Everything There is a Season

Guest Entry:

To Everything There is a Season"

-the Byrds    

Just like the weather, every business has its seasons.  As we wrap up the summer, you may be entering your busy season.  Hopefully, you have taken steps earlier in the year to be ready, including:

  • Developing a Recruiting Process
    Including set questions, assessment tools, and management training to assist with Title VII, Executive Order 11246, and state anti-discrimination law compliance
  • Updating Job Descriptions
    Outlining the responsibilities, requirements, and FLSA classification of each job to improve productivity and reduce exposure to FLSA and ADA and other federal and state anti-discrimination laws
  • Designing a Performance Evaluation Program
    Including templates, process, and employee and managerial training so that employees receive formal, fair, and regular feedback on their performance

Is this a slow season for your business?  If so, then now is a great time to take the proactive HR measures that you just can't seem to get around to during busier times.  These include:

  • Anti-discrimination/Non-harassment Training
    Annual training of managers and employees on the company's non-harassment policy and procedures helps minimize employer exposure to Title VII, ADA, ADEA, and state anti-discrimination laws and improve morale and productivity in the workplace
  • Audit of personnel files and I-9s
    Assists with IRCA, Title VII, ADA, ADEA, and state anti-discrimination law compliance 
  • Handbook Updates
    Communicates company policies and incorporates federal and state laws including 2009 updates to the FMLA, ADA and NJ Paid Family Leave
  • HR and Facility Audit
    Identifies gaps in the HR structure and opportunities to close these gaps as well as potential exposures to violations of Title VII, ADA, ADEA, and state anti-discrimination laws

 

Of course, regardless of what "season" you're in, from a HR professional's point of view, it's never the wrong time to start on any of these initiatives. 

Cristina L. Amyot, SPHR

President & CEO

EnformHR

125 Half Mile Road, Suite 200
Red Bank, NJ 07701

Office: 732-534-7844

www.enformhr.com

Cristina L. Amyot, SPHR is the President and CEO of EnformHR®, LLC a Human Resources firm specializing in helping companies protect and grow their business. She can be reached at 732-534-7844 or camyot@enformhr.com.

Telecommuting

Allowing employees to work remotely can be a RIF-alternative that saves employers expenses for overhead, rent and facilities.  In addition, it can be a low or no cost benefit to retain and recruit talent when other benefits or compensation may be cut.  It can also save employees computer expense and time. 

When considering either a specific request for telecommuting or the implementation of a telecommuting policy, employers should look at the following:

•           Is the individual employee and the work s/he performs suitable? Has the employee’s in-office performance been satisfactory? Is the employee reliable and a good communicator?

•           Can the employee’s supervisor manage a telecommuting relationship? Does s/he have the time? Is s/he a good communicator and evaluator?

•           What will be the impact on the rest of the workforce? Will other employees resent the relationship? Will there be a flood of requests? Is there capacity to provide in-office support to the telecommuter?                       

            •           How will the employer respond to the risk of liability for injury to the employee or third-parties in the employee’s home or damage to equipment?

 

Telecommuting can raise many problems that need to be addressed before implementing a policy or permitting such an arrangement. First, in order to protect itself from liability for injuries, the employer needs to make sure that the employee is in a safe work area. The employer also needs to evaluate the employee’s performance and productivity through time recordation and appropriate supervision. It is critical that the method and frequency of communication with supervisors, co-workers and clients or customers be established. In addition, the employer needs to ensure that its confidential and proprietary information and interactive systems are secure. Finally, other legal issues to consider are whether the employee can work from home during a leave of absence; whether there are tax, jurisdiction, or policy implications when employees work in another state; and, whether there is an applicable collective bargaining agreement.       

 

One of the most significant legal concerns is whether telecommuting is a reasonable accommodation of a disability under the Americans with Disabilities Act (“ADA”) or other applicable anti-discrimination laws. Disabled employees must be able to perform the essential functions of their job, with or without reasonable accommodation, in order to be protected by the ADA or similar state laws. While employers may assume that regular attendance is an essential job function, it may not be if telecommuting is an option, whether based on policy or past practice. 

 

The Equal Employment Opportunity Commission suggests that the following factors be considered in determining the feasibility of an employee working at home:

 

            1.         The employer is able to supervise the employee adequately;

            2.         Any duties require use of certain equipment or tools that cannot be replicated at home;

            3.         There is a need for face-to-face interaction and coordination of work with employees;

            4.         There is a need for in-person interaction with outside colleagues, clients or customers; and/or

            5.         The position requires the employee to have immediate access to documents or other information located only in the workplace.

 

Under the ADA regulations and various court decisions, reasonable accommodations run a broad spectrum including leaves of absence, reassignment, changes in work schedule, “light duty” work, transfer to a vacant position, and modification of work area. Employers need to consider whether they can provide other accommodations that enable employees to perform their essential functions in the workplace, rather than granting a request to work from home, or whether they can truly demonstrate that allowing employees to work from home would constitute an undue hardship.   

 

In order to address the foregoing concerns, employers should implement an adequate, effective telecommuting policy, which:

 

•           Provides eligibility criteria: job type, skills, performance

•           Addresses safety and liability issues, including guidelines for the work area and use of equipment and supplies

                •           Requires regular communication and interaction, including business and social office events

                •           Restricts child (or other dependent) care while working

                •           Addresses compensation, time recordation and reimbursement of expenses

•           Requires confidentiality and security of interactive system

•           Provides guidelines and requirements for work assignments, attendance and work hours

•           Provides for “results-oriented” evaluation of performance

•           Addresses application of Company policies, including the Employee Handbook

                •           Requires employees to review on-site statutory notices

•           Maintains the right of the employer to end the arrangemen

 

In addition to implementing a policy, an employer also should train the employees, co-workers, support staff and supervisors involved in the telecommuting arrangement. Employees should be provided with guidance on applicable policy; setting up a home office; resisting distractions; adjusting their families to the arrangement; use of interactive systems and equipment; and, maintaining communication. Employers should instruct managers how to identify good candidates and positions; manage varied work schedules; assign work; monitor work performance, attendance and hours worked; maintain communication; and use interactive systems. Support staff and co-workers should understand work assignments and communication.

 

If an employer is responding to an individual request rather than implementation of a policy, an individual agreement may be appropriate. Such an agreement should include: the employee’s agreement to follow Company policy; the employer’s right to end arrangement; a provision that employer rights are not limited; the supervisor’s agreement; a disclaimer of liability; and, individual requirements and performance goals. An employer, however, should exercise caution in responding to individual requests in the absence of a policy and training because all of the issues and concerns are applicable to any telecommuting arrangement, whether permanent or temporary. In addition, it is important that responses are consistent so as to avoid claims of discrimination or disparate impact.

           

Clearly, a policy stating that “the employer will respond to requests for telecommuting on a case-by-case basis” or permitting telecommuting on an informal, ad hoc basis can create many issues and possibly liability for an employer. Employers are better served by giving careful consideration to the pluses and minuses of telecommuting and establishing guidelines or agreements in advance. 

 

This article originally appeared in the June 5, 2008 issue of Employment Law 360.