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Confidential Investigations

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Sep 182012
 

The National Labor Relations Board has just declared another common employer practice to be a violation of section 8(a)(1). This time it’s the practice of asking employees who have made a complaint of some sort to the employer not to discuss their complaint with coworkers while the investigation is in progress. The Board found that this practice has a chilling effect on employees’ exercise of their rights under section 7 of the National Labor Relations Act which includes acting concertedly for mutual aid and protection. The Board stated that an employer must show that it had a legitimate business justification that outweighs employees’ section 7 rights in order to make such a request and that simply wanting to minimize disruption in the workplace is not sufficient. In order to meet the standard for a legitimate business justification the Board requires a legitimate concern that witnesses will be intimidated, evidence destroyed or fabricated, or other similar interference in the investigation will occur. While the NLRB indicated that you can probably request that complaints of harassment, discrimination, violence in the workplace or criminal activity not be discussed, the EEOC has since stated that it is a violation of Title VII to prohibit employees from discussing harassment or discrimination in the workplace. As most internal investigation policies and procedures include provisions requiring employees to refrain from discussing ongoing investigations, it is time to have your policies and procedures reviewed by labor and employment counsel to bring your policies in line with the guidance from the EEOC and NLRB.

This article is for informational purposes only. It does not constitute legal advice nor does it create an attorney client relationship. Please contact me or your local labor and employment attorney should you need legal advice.

At Will Disclaimer

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Sep 122012
 

Does the “at will” disclaimer in your employee handbook violate the National Labor Relations Act? In New Jersey your employee handbook must have what we call “at will” disclaimers featured prominently on the document in order to prevent the courts from treating it as a contract. An “at will” disclaimer at its core simply says that the handbook is not a contract and does not change the “at will” status of employees to whom it is distributed. Over the years some employers have gotten rather carried away with their “at will” disclaimers, going so far as to say that “at will” status can only be changed in a written document signed by both the employee and the president or CEO of the company or in an even more dramatic form that all other policies in the handbook can be changed at management’s discretion except for the “at will” provision which cannot be changed by anyone. The National Labor Relations Board has recently invalidated a number of these more extreme waivers on the grounds that they serve to discourage employees from pursuing their right to unionize under section 7 of the National Labor Relations Act. The NLRB maintains that provisions of this type give employees the impression that they have waived their right to engage in collective bargaining by signing these waivers or that engaging in collective bargaining would be futile because no contract which gave employees greater job security could be negotiated. Employers should look at the “at will” disclaimers in their handbooks to make sure that they are not so restrictive as to violate the National Labor Relations Act and consult counsel if they have any questions as to which side of the line their language falls.

This article is for informational purposes only. It does not constitute legal advice nor does it create an attorney client relationship. Please contact me or your local labor and employment attorney should you need legal advice.

Top 5 Ways to Get Your Employees to Sue You #1

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Sep 112012
 

1. You’re outta here! In a down economy the single best way to get sued by an employee is to let them go. Right now jobs are not as easy to find so people who would once have had a better job before they even collected an unemployment check are now spending weeks if not months and at certain levels years finding a new job. This gives them lots of time to dwell on how they were wronged and makes it much more likely that they will file a complaint with the Department of Labor or the Division on Civil Rights or directly in superior court. Careful planning before you let someone go and a carefully crafted severance agreement are your best friends in this situation.

The Big Secrets. Respect, fairness, and communication. The employer that every employee wants to go the extra mile for treats employees with respect by setting expectations clearly and communicating all necessary information without talking down to or belittling an employee. You wouldn’t hire people who couldn’t get the job done so invite their ideas about how to do their jobs better, additional services or products to add, or new employees to hire and then take the time to listen. Some of the best ideas come from some of the least articulate people if you take the time to hear them out.

The employer who avoids lawsuits treats employees fairly by taking their individual situations into account without playing favorites. All employees don’t have to be treated exactly alike at all times. Employees will go the extra mile for an employer who gives an employee who is temporarily having a hard time a break as long as they believe that they would get that break if they had a personal crisis.

Finally, just like in any other relationship, communication is key. Employees can’t all pull together to get where you want to go if they don’t know what the goal is or how you want to get there. Remember, if you treat employees as engaged, conscientious, competent adults they will generally behave that way and if you treat them as stupid, slacking get over artists that’s what you will get.

This article is for informational purposes only. It does not constitute legal advice nor does it create an attorney client relationship. Please contact me or your local labor and employment attorney should you need legal advice.

Top 5 Ways to Get Your Employees to Sue You #2

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Aug 072012
 

2. Don’t mess with their money!

While your employees may like their jobs, I guarantee that they reason they show up every day is because you pay them. Pay them what you promised to pay them and make sure that what you promised is at or above the minimum they are entitled to under the law. Employees
know the minimum wage and overtime laws. If you misclassify employees as independent contractors or require non-exempt employees to work “off the clock” or take work home unpaid or attend mandatory training classes or meetings on their time they can and will file complaints with the Department of Labor. If you have tipped employees set tip rules up front in writing and don’t take a portion for the house.

This article is for informational purposes only. It does not constitute legal advice nor does it create an attorney client relationship. Please contact me or your local labor and employment attorney should you need legal advice.

Jul 272012
 

#3. No one loves you like family.

How often do you hear we treat our employees like family? Is that really a good idea? Think about how families interact: they mind each others business, they give unsolicited advice on dating and child rearing techniques, they tell loud politically incorrect jokes and badly at that, they lecture on politics, proselytize, take each other for granted and expect you to read their minds. Is this really the way you want to run your business? Getting involved in employees personal lives, particularly in the areas of sexuality, child rearing, politics and religion, is never a good idea. Permitting jokes based on race, gender, ethnicity, or sexuality in the workplace is a recipe for a hostile work environment suit. While on the other extreme, proselytizing in the workplace can lead to religious discrimination law suits.

This article is for informational purposes only. It does not constitute legal advice nor does it create an attorney client relationship. Please contact me or your local labor and employment attorney should you need legal advice.

Jul 052012
 

#4. Nobody likes the teacher’s pet.

Playing favorites in the workplace is just as destructive as it was when it happened in school. Playing favorites creates morale problems because everyone else is going to resent the favored employee. It also leads to diminished productivity as the disfavored employees will stop trying because trying doesn’t get them anywhere and the favored employee is likely to slack off because they can get away with it. Playing favorites always creates the possibility of a law suit where there are employees who are not of the same protected group as the favorite. If the favoritism involves a romantic relationship or the rest of the employees believe that it does, lawsuits will inevitably follow.

This article is for informational purposes only. It does not constitute legal advice nor does it create an attorney client relationship. Please contact me or your local labor and employment attorney should you need legal advice.

Jun 022012
 

Ever wondered why some employers seem to get sued regularly while others rarely if ever do? Well, there are some things those often sued employers have in common. Over the next week I’ll let you in on the top five ways to get your employees to sue you, explain why these business practices lead to law suits and then let you in on some of the secrets of successful employers.

5. No rules is not just right. Workplace rules are important. They set clear expectations for employees and establish the consequences for failing to meet those expectations. They also create a framework for each employee to do their job and relate to other employees. Good workplace rules reduce employee stress, enhance productivity, minimize conflict and make employees feel that they are being treated fairly. If you don’t have rules then you are likely making decisions about how to address problems as they arise which leads to treating employees in the same situation differently which opens you up to claims of harassment, discrimination, and retaliation.

This article is for informational purposes only. It does not constitute legal advice nor does it create an attorney client relationship. Please contact me or your local labor and employment attorney should you need legal advice.