Employee Handbooks

Where do I turn when a disabled employee requests accommodation?

Until recently I was unaware of a great resource relating to workplace accommodations of disabilities, for employees and employers alike.  Job Accommodation Network is a service of U.S. Department of Labor's Office of Disability Employment Policy.  As noted on its website, JAN's mission is to facilitate the employment and retention of workers with disabilities by providing employers, employment providers, people with disabilities, their family members and other interested parties with information on job accommodations, self-employment and small business opportunities.

This site is a treasure trove of information - it provides suggestions for accommodations, it outlines legal rights and responsibilities, and you can contact JAN for person to person consultation on what types of accommodations have worked in similar workplaces with similar employee issues.  There is also an updated section on what the recent changes to the Americans with Disabilities Act (ADA) mean in terms of accommodation issues.

Ready for 2009 Changes?

Good blog post and summary of key issues to consider from an HR and personnel management perspective over at Daniel A. Schwartz's Connecticut Employment Law Blog.  Includes changes to the Family Medical Leave Act, employee immigration documentation issues, and changes to the Americans with Disabilities Act.

Locally, remember that Washington's new Minimum Wage is now $8.55 per hour. See the state press release regarding the change.

NonCompete Agreements Are Not The Answer For Everything

Several sources are reporting that there has been an upswing in the use of and the aggressive enforcement of non compete agreements, and the telephone calls my office has been receiving comport with this notion.  However, as compensation consultant Ann Bares writes, non competes are not always the best way to go.

I understand and agree in general with the concept of employees at senior management levels with access to truly secret company information should probably have some sort of a non compete agreement.  However, more and more companies are trying to apply a non compete to every employee, from the part time copy staff all the way through the President or CEO. This diminishes the value of the agreement in my opinion, and can create a poor working environment.

I advise many of my clients to consider a confidentiality agreement - this still protects valuable information that would actually be a trade secret, but allows for more competition in the market place.  A well written nondisclosure agreement still has teeth, and still must be respected by the former employee and their new employer.  

Handling Employee Medical Information

Just read a great article from Luci L. Nelson, an attorney at Ogletree Deakins.  Employee Medical Confidentiality - A Guide for Employers is a nice summary of the obligations imposed by HIPAA, ADA and the FMLA, and there is a link to a helpful chart.  I would add that any employer should also look at the rules regarding employee medical information under state law, especially those laws relating to worker's compensation.

We Can't Cover Payroll...Can We Delay Payment?

In the current economic climate, many companies are searching for ways to save money or to find creative ways to get all the bills paid.  Unfortunately, some businesses think that payroll is a place for some of that creativity or place payment of salaries second to rent or bills from vendors.  In general, these are not legal options.

In Washington every employee must be paid no less than once a month.  WAC 296-126-040.  Potentially, with proper warning, you could convert weekly or bi-monthly employees to a once a month payment.

However, companies should exercise a LOT of caution when experimenting with payroll options.  In Washington, an employer who willfully withholds wages that are due to an employee may find itself liable for twice the amount that was due, plus attorney's fees.  Financial inability to pay wages does not excuse an employer from liability, nor does it protect them from the potential of double damages.  Schilling v. Radio Holdings, Inc., 136 Wn.2d 152 (1998).  Furthermore, even if the business is incorporated, Washington law creates personal liability for corporate officers.

Work With Your Staff During Hard Times

Another great article from Workplace Coach Maureen Moriarty Don't Let Hard Times Take Toll on Staff.  Good practical advice on how best to retain employees' loyalty during a recession.  The bottom line is to respect your employees and don't try to sugar coat the bad news, and try to involve them in decisions where appropriate.

A For Profit Business Cannot Have "Volunteers"

I was reading a great article today from the attorneys at Fisher & Phillips LLP about the fact that in most cases, anyone performing work for a for profit business is not a "volunteer" and is not exempt from the requirements of the Fair Labor Standards Act and must be paid.   "I'll Do It For Free" focuses more on the issue of parents volunteering for private schools versus public schools, but it is an issue I see in lots of fields, including my own.  Washington State's Department of Labor and Industries' advisory opinions also make it clear that it does not consider work performed for any entity other than a government or a non profit "volunteer" work.

There are some exceptions in the profit world - if you have an intern who is receiving school credit, or if you come under certain work programs for the disabled.  But, be very careful, especially in this economy, if someone offers to volunteer or intern for free just to get some experience.  It could prove ultimately to be very expensive free labor!

Ask the Right Questions in the Interview

A very good article from Kris Dunn at Birmingham Business Journal on asking the right questions when interviewing candidates for a new job.  Turnover is so expensive, and you always are looking for the right candidate, but it can be difficult once you've done the initial screening - many candidates might have the right technical skills, but will they fit well with the organization?  The article stresses asking more pointed questions and avoiding the general (and vague) "why do you want to work here?" type of inquiries.  Mr. Dunn also has a great HR blog at HR Capitalist.

Workplace Safety Management

I have recently learned of two helpful online courses being offered by Edmonds Community College this summer that should be of interest to business owners, human resource professionals and managers.  These classes are part of a two year Occupational Safety and Health Technician degree, but pursuit of such a degree is not required to take the classes as I understand it.  The classes would also apply towards pursuit of a bachelor's degree in Safety and Health Management at Central Washington University - Lynnwood. 

Summer classes run July 1, 2008 to August 22, 2008.  Registration starts May 29, 2008.  The classes are:

• Safety Management (Occupational Safety and Health 110), this course covers safety practices, major workplace hazards, emergency preparedness and how to collect, evaluate and respond to safety and health trend data and develop site-specific programs, policies and procedures.

• Workplace Violence Prevention Occupational Safety and Health 255), review the history of violence in the workplace; study different types of threats, such as internal versus external; analyze case studies; explore a variety of prevention strategies; create violence prevention plans.

To learn more go to Edmonds CC Occupational Safety and Health Web site , call 425-640-1843 or email kerrie.murphy@edcc.edu.

If anyone takes these courses, I'd love to hear from you about your experience!

More to Consider Before You Terminate An Employee

Both attorney Rod Stephens over at Employment Advisory and attorney Jennifer Brown Shaw of Shaw Valenzza LLP have recently written some good advice regarding facts to consider before you terminate an employee, whether a single employee termination or a layoff/reduction in force.

They point out the following issues, which I would add to my list of "10 Things to Keep in Mind" when you must terminate an employee:

• 11.  DO consider the timing.  In the Colorado case described by Stephens , one of the key problem facts for the employer is that he chose to terminate his employee immediately after receiving an email where she protested certain wage and hour policies.  Even if there might be good reasons for terminating an employee, frequently those will get lost in the shock value of terminating an employee immediately after they have asserted some protected legal right (here, the right to lunch breaks, among other things).
• 12.  DON'T fire without good documentation.  Certainly there are times where an employee engages in behavior so egregious that you might need terminate them immediately (such as an assault on another employee, for example).  However, as Shaw notes in her excellent article “Employee Terminations: Steps to Reduce Liability” , during a layoff or reduction in force it might be tempting to use the downsizing as a way to get rid of “problem” employees, you still must have a paper trail to support your choice.