What to do About Workplace Violence

Unfortunately, one of the possible responses to a reduction in force, and other internal and external stressors, is workplace violence. Employers can be liable to employees and customers for their negligence that allows workplace violence to occur. What steps can employers take to protect their employees and themselves?

Many circumstances can result in violence in the workplace. A termination of employment, reduction in force, demotion, poor review , internal complaint, or any adverse employment action can cause a violent response. Outside stressors such as financial, health or family concerns can cause problems in the workplace as well. Domestic violence often carries over into the workplace. Moreover, some businesses, such as healthcare or late-night retail, are more prone to incidents then others.

 

Employers can take important steps to preventing violence in their workplace.

1.   During the hiring process, an employer should:

            -     Centralize recruiting, interviewing and hiring.

_    Review all info before hiring.

-     Investigate all gaps.

-     Conduct background checks.

-     Consider non-discriminatory selection tools.

-     Extend offers pending background results.

-     Record investigative & screening efforts.

2.   Training: Employers should train supervisors in identifying and responding to risks of violence in the workplace, in the same way employers train supervisors on other safety risks, such as drug use, fire and accidents. 

3.   Supervision: Communicative supervison can give a disgruntled employee an outlet before she or he turns to violence. Employers should ensure that employees know how to voice their concerns via an Open Door Policy and that managers know how to resolve disputes.

4.   Monitoring employees: With proper notice to employees and implementation of policy, employers should take full advantage of employee monitoring, including drug testing; accessing employees use of email and the internet; searches; and, video monitoring. While employers should make sure they do not exceed the appropriate privacy boundaries of such monitoring, employers need to be aware of what their employees are doing at work.

5.   Don’t ignore employee personal issues that enter the workplace. Employers should require employees to advise them of any temporary restraining orders to which they are a party.

6.   Emphasize individual responsibility. Employers should train employees on the importance of taking responsibility for their own behavior and safety in the workplace.

7.   Implement policies prohibiting workplace violence. Employers also should implement other policies related to workplace safety, including policies on visitors, confidentiality, use of interactive systems, video and other monitoring and workplace searches.

8.   Be sensitive to warning signs from employees, such as:

                 -           Threats of harm (direct or veiled).

                 -           Intimidating and/or harassing behavior.

-           Carrying and/or flashing weapons.

-           Paranoia (“They’re out to get me”).

-           Moral righteousness (“I’ve been wronged”).

-           Can’t (or won’t) take criticism; does nothing wrong.

-           Holds a grudge, especially against management.

-           Expresses desperation over work, family, personal.

-           Has history of violent behavior (on or off job).

-           Fascinated with incidents of workplace violence.

-           Approves of violence by “screwed” employees.

-           Ignores co-worker safety.

-           No life outside of work.

-           A loner; “he was a quiet man.”

9.   Assess readiness. Employers should assess physical and electronic security (office/home); internal resources (HR, legal, risk management, Media/PR); and external resources (police, security, legal, EAP, outplacement) regularly.

10. Manage separations. Whether performance or economic-driven, employers must manage separations appropriately. Employers should communicate separations humanely and offer assistance such as severance, EAP and outplacement services where possible to ease the transition.  In addition to protecting the interests of the departing employee, employers also should protect their own interests by cutting off access to the interactive systems, customers, and the premises. Employers can use confidentiality and non-solicitation agreements and covenants-not-to-compete to protect their business interests.

When confronted with a suspected incident of violence, employers should: 

·     Focus on the employee’s conduct, not on his/her motivation!

         Treat like violators alike.

         Weigh the risks of being wrong.

When in doubt, kick them out.

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.

Employment Policies and At-Will Employment

While progressive discipline and adherence to company policy can help an employer defend a challenge to an adverse employment action, employers need to keep in mind that, in the absence of agreement otherwise, in most jurisdictions employees are "at-will."  "At-will" employment means that employees can be terminated at any time for any reason (other than unlawful), or no reason at all, with or without notice.  Likewise, at-will employees can terminate their employment in the same manner.  In a non-union setting, employers should avoid policies that commit them to steps in imposing discipline for performance, conduct or absenteeism or responding to employee complaints.  Even with a disclaimer advising that policies are not contractual and are subject to change, employees can assert claims based on reliance, contract, or differential or discriminatory application.  It is much better for employers to retain discretion.

In addition, employers should avoid policies that are confusing and difficult to implement, or that will not be applied in practice.  Employers should reconsider policies where exceptions swallow the rule.

For more on employment policies that can do more harm than good, see my comments on SHRM's website at: www.foxrothschild.com/Newsstand/News.aspx

The Employee Handbook: Sword and Shield

While no law requires an employer to have a handbook, employers should implement and distribute certain policies in order to defend themselves from potential claims from employees. The employee handbook is an appropriate, centralized and convenient medium for doing so. In addition, the handbook can be an important resource to employees who have questions about company policies, work rules, and benefits. Equally important, the employer can use its handbook to put forward a positive corporate image to its employees, which can be effective in highlighting favorable benefits, keeping employee morale high, and avoiding union organization.

While there is no "one size fits all" employee handbook, employers should consider the following policies when implementing an employee handbook:

- Disclaimer:  All employee handbooks should include a prominent disclaimer at the beginning of the handbook advising employees that the handbook is not a contract, that employees are employed at-will, and that the employer can terminate their employment or change benefits at any time for any reason. The employer should require employees to sign an acknowledgment that they received the handbook and reviewed and understand its contents, including the at-will disclaimer. 

- Privacy issues:   Employers now have the capability to monitor computers, e-mail, and telephones; videotape; conduct drug and genetic testing; and eavesdrop. Many states recognize that employees have a common law protection from invasion of privacy by their employer and recognize tort claims for violation of that right, including claims for defamation, false imprisonment, false arrest, and intentional infliction of emotional distress. Accordingly, employers should include policies in the employee handbook that diffuse expectations of privacy, where reasonable to do so.

For example, the handbook should include a policy that advises employees that any containers or packages (regardless of ownership) that they carry in or out of the company’s premises are subject to inspection, as well as desks, lockers, cabinets ( as well as voice mail, e-mail, and computer data) and other similar items on company property. The employer can provide that a refusal to consent to such a search is grounds for discipline of the employee.

In addition, employers must have a policy advising employees that the e-mail system is owned by the employer and that employees have no reasonable expectation of privacy in their e-mail communications and internet searches. The policy should advise employees that the employer can retrieve even deleted messages. The policy should prohibit employees from accessing each other’s e-mails, as well as illegal and improper uses of e-mail and the internet, such as pornography, obscenity, harassment, and gambling. The employer also should prohibit employees from subscribing to information without employer permission; violating copyrights; or, issuing defamatory statements. Employers should issue passwords to employees and prohibit them from sharing those passwords, while maintaining the employer’s right to know all passwords and access an employee’s e-mail at any time. 

Employers must remember that even with such notice, employer monitoring of personal communications, and attorney-client privileged communications, is still restricted. 

Telecommuting:  For employers, telecommuting offers the benefits of decreased office space requirements and more flexibility in hiring. The employee gains flexibility in terms of work hours and commuting. However, there are several potential pitfalls presented by allowing employees to telecommute, including lack of direct supervision, costs involved with establishing an appropriate home work environment, and attendant liability and implementation issues. To address these issues, a telecommuting policy should include a statement that telecommuting is at the employer’s discretion; a length of service and satisfactory performance requirement; a trial period; restrictions on child and other dependent care; safety and confidentiality protections; and, requirements for face-to-face and telephone or other regular interaction.  In order to comply with the record-keeping requirements of federal and possibly state wage and hour laws, the employer must require non-exempt employees to keep and submit a record of all hours worked. In addition, the employee must be required to notify the employer immediately of any injuries sustained in the home office.

- Non-harassment:   In response to a hostile work environment harassment claim, in the absence of a tangible employment action, the employer may raise an affirmative defense based on a showing that it exercised reasonable care to promptly prevent and correct any sexually harassing behavior, and that the employee unreasonably failed to avail himself of any preventative or corrective opportunities offered by the employer. A non-harassment policy, which the employer has distributed to employees and in which the employer has trained employees, is a critical part of such a defense.  A non-harassment policy should include a clear statement that the employer will not tolerate any harassment on the basis of any protected trait or activity. The policy should define harassment and specify that its terms apply to work-related settings such as business trips and business-related trips, as well as in the office. The policy should cover all employees, managers, and outside clients or vendors doing business with the company. While the employer may be limited in what action it can take against non-employees for harassing its employees, the employer can limit, change, or end the relationship with the client or vendor who is the source of the harassment.  The non-harassment policy should advise employees how to report harassment that they experience or witness; how the employer will investigate the alleged conduct and communicate the results; how an employee can appeal the conclusion; and, what sanctions may be imposed (including termination). The non-harassment policy should explicitly prohibit retaliation against an employee for making a complaint.

- Reasonable accommodation:  Under federal and some state anti-discrimination laws, employers may have an obligation to “reasonably accommodate” an employee’s disability or religious belief. Generally, reasonable accommodations are those adjustments or modifications which specifically assist the employee in performing the duties of a particular job. However, an employer is not required to make reasonable accommodations where the accommodation(s) would cause the employer undue hardship, such as where the accommodation is too expensive or disruptive or would be ineffective.  A reasonable accommodation policy should institute a procedure for evaluating requests and, where appropriate, for providing the appropriate accommodation to the employee. The policy should require the employee to report his or her disability or religious belief to the employer and make a request for an accommodation where the condition at issue is not readily apparent. The employer must balance the request for the accommodation against the hardship it may impose, based on the employer’s size, type and financial strength. Employers should document requests for accommodations, discussions pertaining thereto, and decisions regarding implementing or denying the request.

References Employee references can be the basis for defamation and retaliation claims against former employers for releasing potentially damaging information regarding an employee.  Accordingly, employers must control who responds to reference requests and what information is released. An employee reference policy must designate an individual to respond to requests and prohibit other employees from doing so. The policy should limit the information that will be released, such as to job title and terms of employment, unless the former employee has signed his or her consent to the release of any additional information. 

- Cell phone use:    In order to limit liability, employers should include polices in their handbooks governing cell phone use for business purposes by driving employees. Employers also should be cognizant of state laws that place restrictions on cell phone use while driving.

- Leaves of absence: Employers who are covered  by the Family and Medical Leave Act ("FMLA") must have a FMLA policy in their employee handbooks.  In addition to addressing employee rights and responsibilties under the FMLA, the policy should address interaction with any applicable state leave law rights, other employer leaves, and paid time off.

- State laws: Employment laws differ from state to state.  Mutli-state employers must supplement core policies with applicable state law requirements.

- Other:  In general, an employee handbook should contain certain basic policies addressing, for example, compensation, leaves, equal employment opportunity, substance abuse, and benefits. The handbook also can describe a company’s structure, goals, and philosophy.  

Drafting and implementing the handbook are only the first steps.  Employers must train supervisors in how to apply the policies, as deviation from policies and practices can be evidence of improper motive, such as discrimination, as well as create feelings of unfair treatment among employees.

While every employee handbook must be tailored to the business at issue, depending on its goals, culture, location, and practices, all handbooks can have the common results of meeting legal obligations and bringing structure to the workplace.

Corporate Wellness - Is it Healthy for Employers?

 In an unhealthy economy, keeping employees healthy may be a way for employers cut costs while attracting and retaining talent.

There are many employer benefits to having a healthier workforce.  Healthy employees may be absent less, take fewer leaves of absence, be more productive, work longer, and have a better overall quality of life.   In addition, and probably most important to most businesses, employers may pay less for health insurance.  With these goals in mind, many employers are implementing corporate wellness initiatives. 

Effective corporate wellness programs identify and reduce risks and educate and motivate employees to improve individual health.  Discounts or penalties on health care premiums, health exams and screenings, health coaches, energy management exercises, weight-loss and smoking cessation programs, and rewards such as gift cards or vacations are a few approaches used by employers.  Some employers go even further and implement outright restrictions on employment or health insurance based on weight, smoking, and even hazardous activities, such as skydiving.  While the results may be beneficial to both employers or employees, the end won’t necessarily justify the means.  Unless implemented properly, efforts to improve employee health can face challenges from several fronts, including claims of invasion of privacy and unlawful discrimination.

Many corporate wellness initiatives are about behavior that occurs outside of work.  Most workplaces are non-smoking, but many employers don’t want their employees to smoke at all.  Employers can offer only healthy food and snacks in the cafeteria, but that doesn’t help if the employee eats junk and fast food the rest of the time.  But employer attempts to regulate or prohibit such “outside” behavior and to monitor employee compliance can give rise to claims for invasion of privacy. 

 

 

Another potential source of privacy rights for employees is the Health Insurance Portability and Accountability Act (“HIPAA”), which protects the privacy of personal health information. HIPAA nondiscrimination regulations regarding “bona fide wellness programs” require that wellness programs be designed to promote good health; allow for annual qualification; make awards available to all similarly-situated individuals; and, provide a reasonable alternative, and notice thereof, to employees unable to comply with program requirements due to a medical condition. Under the recently promulgated regulations, the value of rewards (such as discounts, contribution rebates, or waiver of cost-sharing requirements) for the wellness program is limited to 20% of the unsubsidized cost of employee-only coverage under the health insurance plan. Compliance with HIPAA, however, does not mean a program will survive challenges on other grounds, such as discrimination.

 

 Some employees may feel harassed or discriminated against when faced with healthy workplace initiatives.  Employees may claim that they are treated differently because of their protected status (“disparate treatment”), or that their employer’s policy or practice adversely impacts a protected group (“disparate impact”).    Accordingly, wellness program participation, use and confidentiality of employee health information, and screening must be consistent with federal, state and local anti-discrimination laws.

 

The Americans with Disabilities Act (“ADA”) - which was recently amended to expand its protections - for example, prohibits discrimination against a qualified individual with a disability who can perform the essential functions of the job with or without reasonable accommodation.   A disability is defined as a physical or mental impairment that substantially limits a major life activity.  Employees also are protected from discrimination if they are “regarded as” or “have a record” of a disability – even if they are not currently disabled – and if they associate with a disabled person.  Employers should avoid making assumptions about employee health based on appearance, age, or any other criteria. I n addition, under the ADA, employers have an obligation to provide a reasonable accommodation to a disabled employee who can perform the essential functions of the job. This obligation would apply to an employee’s participation in a corporate wellness program.

 

The Equal Employment Opportunity Commission (“EEOC”) has indicated, with qualifications, that voluntary wellness programs do not violate the ADA. Penalizing employees for not participating, such as through higher insurance premiums, can render a program involuntary, however.

 

In addition, the ADA limits the use of medical examinations and inquiries in hiring and employment.   Generally, employers are not permitted to make disability-related inquiries or to conduct medical examinations unless job-related and consistent with business necessity. Many wellness initiatives use Health Risk Assessments (“HRAs”) to obtain employee health information. The EEOC has indicated that HRAs are permissible where they are part of a voluntary wellness program - but may be discriminatory if completion is required in order to participate in the program.  However, behavioral questions regarding eating, sleeping, exercise and other habits, may fall outside the scope of ADA restrictions.  Health information obtained from HRAs must be kept confidential.  It remains to be seen whether the recently enacted protections to genetic information including medical histories and other data solicited on HRAs.

 

Some state or local anti-discrimination laws also prohibit discrimination on the basis of “disability” and/or “handicap,” and may define those conditions more broadly than a “disability” under the ADA.  Weight is an area of focus for many wellness programs.  Obesity, usually where morbid or caused by another medical condition, may be a disability under ADA or state law if it meets the statutory definition, and some local ordinances specifically prohibit discrimination on the basis of weight. 

 

Corporate wellness programs also could be subject to challenge on the basis of other protected classifications, such as race, national origin, gender and age, if employers screen or penalize employees for conditions more prevalent among those protected groups.  Certain health conditions may be exhibited more frequently in older workers or employees of a particular race or national origin.  Some states also prohibit discrimination on the basis of atypical cellular or blood trait or genetic information, which could also constitute a basis for challenging corporate wellness initiatives such as health screenings.

 

 Many states, including New York, New Jersey and Colorado, also restrict employers from engaging in “lifestyle discrimination” which can range from discrimination against smokers to discrimination based on any lawful activity off employer premises during working hours. Employers attempting to regulate out-of-work activity may run afoul of these laws.

 

Employers who use physical characteristics in employment decisions, such as hiring, could be subject to claims for discrimination. Employers should avoid disability-related inquiries; health or physical-related criteria; restrictions on personal activities; and physical or medical testing unless work-related and applied consistently across employees in a job category and not just to members of one protected class.  

 

 While there are many benefits to improving employee health, reducing the cost of health insurance is a primary consideration. Some employers impose surcharges or higher premiums on employees who do not meet the company wellness thresholds or who refuse to participate in wellness initiatives. But there are other alternatives that can significantly reduce costs without employer involvement in employee health. For example, audits of health plans to determine whether enrolled employees and dependents are eligible – such as confirming current employment, marital, domestic partner or civil union status, and dependant age and relationship – can significantly reduce costs. Higher deductibles and health savings accounts (“HSAs”) can make employees more financially responsible, and thus provide incentives for employees to improve their own health. 

 

Despite these challenges, more employers are beginning to take aggressive steps to improve the health of their employees, and benefiting from the results. Companies interested in implementing wellness programs should keep the following guidelines in mind:

 

  -           Maintain safe and healthy work environments.

-           Use a third party to implement corporate wellness programs.

-           Use voluntary programs, such as employer-paid physicals, on-site exercise facilities and personal trainers, wellness reimbursements, smoking cessation and weight-loss programs, health coaches, and healthy food options in the cafeteria/vending machines.

-                     Audit health plan participation.

-           Aggregate data and trends.

-           Maintain confidentiality of individual health information.

-                     Incentivize don’t penalize.

-           Focus on education.

-           Corporate wellness and employment decisions need to be separate.

-           Train employees who implement corporate wellness programs to comply with the law and company policy.

 

Properly implemented wellness programs that are voluntary; motivate through incentives rather than penalties; use health information in a permissible way; maintain confidentiality of health information; operate at arms length from hiring and employment decisions; and, focus on education and behavior can achieve the goals of a healthier and more productive workforce and lower health insurance costs without subjecting employers to liability.  

 

For more detailed information on corporate wellness programs, see my recent article from The Practical Lawyer at: www.foxrothschild.com/Newsstand/News.aspx

 

 

 

Personnel Files

A personnel file is one of the most relevant pieces of evidence in bringing or defending an employment-related claim.

What should be in the file?

 - Pre-employment documents, such as the employment application, resume, background check information (including notices and authorizations under the Fair Credit Reporting Act when applicable), college transcripts, offer letter, new hire reporting, and copies of any relevant licenses.

- Job description, which should include a statement of relevant qualifications and essential and non-essential job functions.  Job descriptions are relevant to claims for discrimination based on disability or religion, and failure to accommodate, as well as claims for mis-classification as exempt under federal and/or state wage and hour law. 

- Employment records related to hiring, promotion, demotion, transfer, layoff, rates of pay, compensation, and education and training. 

- Agreements, such as employment agreements, confidentiality agreements and other restrictive covenants.

- Emergency contact information.

- Records relating to employment practices and policies, such as acknowledgement of receipt of the company's employee handbook and non-harassment policy and record of attendance at company harassment avoidance training.  Such acknowledgements are very helpful in proving that an employee was on notice of employer prohibitions against harassment and discrimination, as well as reporting procedures.

- Disciplinary notices or warnings.  It is difficult to defend a performance or behavior based adverse action in the absence of any documentation.

- Complaints or compliments.

- Performance evaluations.  See "Evaluating Employee Evaluations" posted April 13, 2009 for more on the importance of performance evaluations.

- Exit interviews

- Termination records, including a separation agreement.

What should not be in the personnel file?

- Medical records

- EEO data

- Immigration forms (I-9)

- Safety training records

These should be maintained in separate, confidential files.

Who should have access?

Whether or not an employee has a right to see his/her personnel file differs from state to state.  In some states, employees may have a statutory right to access and possibly copy their file.  Even in the absence of a statutory right, some courts have recognized a claim for retaliation when an employee has asked to look at his/her file when seeking information regarding an allegation of discrimination or harassment.

Supervisors with a need to know should have access to personnel information, and possibly medical information when implementing a request for reasonable accommodation of a disability.

Employers also should keep in mind that auditing or investigating agencies, such as the EEOC, INS,  OSHA,and state and federal Departments of Labor also may access personnel files.  In addition, if an employee brings a claim, his/her personnel file may be discoverable, as well as the personnel files of other, relevant employees and even the employee' s supervisor.  Employers should keep these eyes in mind.

Evaluating Employee Evaluations

Posted by: Anne Ciesla Bancroft, Esq. and Najeeb Ahmad, founder of Pennington Human Dynamics, specializing in talent management consulting.

Accurate evaluations are critical in supporting performance-based adverse employment decisions, whether an employee is terminated for poor performance or chosen for a reduction in force as a relatively poor performer.  Too often evaluations are missing, sugar-coated, or, based on unsupported assumptions and stereotypes.   In contrast,  businesses that treat evaluations as an investment in employee talent can reap significant benefits.

Employers can use evaluations to:

Manage talent: The evaluation process presents an ideal opportunity to identify the strongest performers, those with the greatest potential, and those whose career development and impact in the organization will benefit from new opportunities. Well-grounded evaluations provide critical data to assess whether key employees are appropriately matched to the right opportunities, as well as to identify potential successors for critical vacancies or openings created by employees who change roles. Avoid the common mistake of focusing on form over substance, which can lead to the creation of lists that simply get placed in a file. Whenever possible, ensure that specific action steps and accountabilities are identified and periodically reviewed to assess progress.

 

Improve employee performance: In order to be an effective tool in improving performance, evaluations must be constructive, specific, and performance-focused. Providing positive feedback is easy. It is also important. Employees can find positive evaluations rewarding and motivating. More challenging is an assessment that an employee does not want to hear. Employers need to emphasize the importance of constructive, objective feedback to the evaluation process, even in the face of employee opposition.

 

Employees must be given the opportunity to review and sign off on their evaluations.  Employers should have a written policy that refusal to sign an evaluation can subject an employee to discipline, including termination. An employee is not indicating that s/he agrees with the evaluation; his or her signature is simply an acknowledgement of review and receipt. Signed evaluations should be maintained in an employee’s personnel file.

 

Improve employer performance:   360 degree reviews can give employees an opportunity to evaluate their supervisor.   It can provide an invaluable tool for supervisors to understand how they can lead more effectively and develop their employees, as well as to reinforce effective behaviors. Employee feedback can also assist employers in identifying abusive and even unlawful conduct, such as workplace bullying or sexual harassment. 

 

Improve morale and engagement:   One of the clearest paths to enhancing morale is to create an environment where employees know what is expected of them, where they stand, and what they can do to improve; an effective evaluation process helps accomplish all of these objectives. At the same time, a process that is perceived as “going through the motions,” unclear, or focused more on filling out forms than having meaningful discussions with employees can dramatically erode morale and lead to cynicism about the employer’s commitment to employee development. 

 

Communicate expectations:       Clear goals, mutually created by supervisors and employees, or more formal performance improvement plans, should be included in evaluations, and acknowledged by the employee. These can be used as indicia against which to assess the employee’s performance and track progress the next year. However, evaluations should not make any representations regarding continued employment or advancement that could be used as the basis for a contractual claim by an employee. Remember the acronym S-M-A-R-T, which stands for specific, measurable, achievable (or actionable), realistic, and time-bound, to guide the creation of effective expectations.

 

Provide a defense:   Accurate evaluations demonstrating a progressive effort to improve employee performance can be an essential component of an employer’s defense to a discrimination, retaliation or other unlawful termination claim. In contrast, the absence of evaluations; inaccurate or white-washed evaluations; or, inappropriate comments in an evaluation can be used to support an employee claim. Employers should use the “what not who” test. Evaluation comments should be related to what an employee does, not who s/he is. Evaluations must be free of comments related to an individual’s protected classification, need for accommodation of a disability or religious belief, caregiving responsibilities, stereotypes, or other potentially improper areas.   Those employees conducting evaluations should receive guidance and training to make sure they prepare evaluations properly.  

 

Open communication:   Employers may avoid employee claims all together if employees have open lines of communication with management. Evaluations present an opportunity to solicit information from employees about their work environment that can help an employer address problems before they lead to formal or external complaints.

 

What can an employer do to meet these goals?

 

 ∙           Implement an evaluation policy that provides for a regular process for review

∙           Develop an evaluation which is tailored to the employer’s needs – cookie-cutter forms will not result in useful feedback.

∙           Use job descriptions when conducting reviews to assess performance and develop goals.

∙           Conduct reviews from the top down – higher level managers should not expect their reports to evaluate subordinates if they are not evaluated.

 ∙           Train those conducting reviews how to provide constructive feedback and to communicate reviews effectively

∙           Ensure that evaluations are free of discriminatory or improper comments unrelated to performance.

           

Performance evaluations provide a powerful opportunity to allow employees to understand what is expected of them, how they are doing, and how they can improve. At the same time, they enable employers to manage their talent effectively and to create a climate that fosters open communication and mutual respect. Employers should stay focused on these simple objectives, ensure that documents and conversations are well-grounded in fact, and engage employees in the process to ensure success.