Southwest Florida Employment Law Blog : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

At our 21^st annual HR Law & Solutions seminar in March, I presented "Best Practices for Handling Workplace Investigations.” In the presentation, I mentioned that in July 2012, the National Labor Relations Board (NLRB) held that a blanket policy requiring confidentiality during all internal workplace investigations violates employees' concerted activity rights under Section 7 of the National Labor Relations Act (NLRA).

Earlier this month, the NLRB released an Advice Memorandum (click here to download) that provides additional clarification on its position regarding confidentiality in workplace investigations. It is helpful to review this NLRB guidance, because it gives a peek at how such a confidentiality policy can be revised to be in compliance with Section 7 of the NLRA. Keep in mind that the NLRB does not prohibit confidentiality in workplace investigations, but rather prohibits blanket confidentiality requirements.

What is the best practice for employers?
I recommend that employers review their existing policies and practices, and modify policy language, as appropriate, to comply with the NLRB guidance. Employers should also implement a practice of documenting, on a case-by-case basis, the reasons for deciding to instruct witnesses to keep an investigation confidential.

This is just another example of the ever-changing world of employment law. Employers, and even regulators, are finding that strategies widely believed to be "best practices" may now run afoul of either new privacy laws or new interpretations of long-existing laws, such as Section 7 of the NLRA. Stay tuned!

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In my last blog post on improving your workplace documentation practices, I discussed the type of workplace events and communications that should be documented by employers. This post provides practical tips on how to document.

Although sufficient workplace documentation is crucial, poor workplace documentation can actually hurt an employer and weaken your attorney's ability to win your employment case. What employers need is effective workplace documentation. Effective documentation gives you (the employer) credibility, allows you to demonstrate that you followed the law, and serves as "Exhibit A" if you go to trial.

Here are some dos and don'ts of effective workplace documentation.

Dos:

• Do record specific objective and factual information. Specific information (who, when, where, why, etc.) allows you to recall and support workplace events and decisions.
• Do follow consistent documentation practices. Similar situations should be treated and documented in a similar manner to avoid claims of retaliation or discrimination.
• Do reference or include relevant back-up information. Reference past relevant events, specific workplace policies, procedures, and rules that are involved in the situation.
• Do allow for employee acknowledgment and feedback where appropriate. It demonstrates the employee was given information; it also describes the employee's reaction and rebuttal to the information conveyed.
• Do proofread the document.  Is the document clear, objective, and complete? Beware the perils of e-mails and texts where the casual nature of the medium often leads to inadvertent, but costly, mistakes.
• Do sign and date the document. If the document is worth preparing, it should be legible and the author of the document and the date should be noted.

Don'ts:

• Do not include personal feelings, impressions or opinions. Stick to the facts. Inflammatory or judgmental comments will not help your case.
• Do not use legal or technical terms and conclusions. Ask yourself whether a person outside your organization will understand the information the document is intended to communicate.
• Do not write personal notes on company documents. It might help you to remember the candidate if you jot down notes of race, gender, etc., but such a notation can wreak havoc in a discrimination case.
• Do not use "always" or "never." Most employee conduct is not absolute. The use of these terms can affect your credibility.
• Do not "embellish" or "sugarcoat." Inflation of employee performance makes it difficult to support disciplinary action. Telling the good and the bad, allows employees to accurately gauge their performance and conduct.
• Do not backdate documents. This practice is dangerous and in some cases, illegal.

Consult your legal counsel if you have questions on how to document a workplace event or observation.

Next post in this workplace documentation practices series:  When to document? Immediately!

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In my last blog post, I challenged employers to resolve to improve their workplace documentation practices in 2013. This post is the first in a promised series of practical tips for achieving your resolution.

How many times have you heard the phrase: "If it's not in writing, it didn't happen."? That saying has special meaning in the workplace context. Judges, jurors, arbitrators, EEOC investigators, unemployment referees, employees, and last, but not least, ME as the attorney retained to defend your company, expect employers to keep good records, and to be able to produce them when a question arises about a workplace complaint, incident, or employment decision. 

Documentation comes in many configurations. Employers can document through formal reports, printed forms, memoranda, performance evaluations, disciplinary memos, phone notes, day planners, post-its, and even on the back of cocktail napkins. In future blogs, I will discuss how, when, and where to document or record workplace events, observations, communications, but first things first: WHAT SHOULD BE DOCUMENTED?

Here is a list of the many "documentation worthy" workplace activities.

• Recruiting materials and employment applications. (Necessary to establish compliance with Title VII, ADA, ADEA, OFCCP, Affirmative Action Regulations, and many other laws recognized by their acronyms.)
• New hire information. (Critical to demonstrate terms of employment and compliance with federal and state laws. Includes employment application and references, criminal background check, required certifications and licenses, drug tests results, driver's license checks, I-9s, etc.)
• Payroll.  (Required by law and must be retained under the IRC, EPA, FMLA, FLSA.)
• Performance evaluations. (Essential to ensure clear communication of employer's expectations, support employment decisions, track progress, correct deficiencies and defend lawsuits.)
• Misconduct and discipline. (Important to address employee behavior and violation of workplace rules and standards of conduct, establish patterns of behavior and administer progressive discipline in a fair and consistent manner.)
• Employee incidents, complaints, and investigations. (Necessary to establish a precise accounting of events that are critical to legal disputes and to promote better decision making.)
• Leaves of absence. (Key to calculating, tracking, and coordinating leaves of absence under FMLA, workers' compensation ADA, USERRA, Florida domestic violence leave law, and voluntary employer policies.)
•  Absenteeism and tardiness. (Necessary to track hours of non-exempt employees and to ensure the fair and consistent administration of employer's absenteeism policy.)
• Accommodations. (Convenient to demonstrate employer's participation in the required interactive process of accommodating disability, religious practices, etc.)
• Employee acknowledgments. (Valuable to prove that employee attended training sessions and received policies, write-ups, performance evaluations, and required notifications.)

While this list is not exhaustive, it gives you an idea of the diverse workplace activities that should be documented and why proper documentation is important.

Next post in this workplace documentation practices series: How to document? Carefully.

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My #1 recommended resolution for employer clients in 2013? Improve your workplace documentation practices. Why? Because I like to win cases for clients, and most employment lawsuits are often won or lost based on the presence, quality, and accuracy of an employer's documentation.

Experts tell us that understanding the benefits of your New Year's resolution will help you keep it. So, here are five important reasons why proper documentation will improve your workplace and increase my chance of winning your employment lawsuit:

• Proper documentation demonstrates an employer's compliance with federal, state, and local laws.
• Proper documentation leads to better and more objective decision-making.
• Proper documentation lends credence to an employer's explanation of the legitimate business reasons underlying its employment actions.
• Proper documentation provides evidence that similarly situated employees were treated the same.
• Proper documentation helps witnesses remember key events.

Announcing your New Year's resolution also increases the likelihood you will keep it. For my part, I promise to help you improve your workplace documentation practices in 2013 by providing you with specific tips and strategies in future blog posts. To put it in legal terms: 

WHEREAS, proper workplace documentation is critical to minimizing employment disputes and improving an employer's position in litigation. NOW THEREFORE, BE IT RESOLVED that the aforesaid employer/reader and the undersigned attorney/writer will work together to improve workplace documentation practices in 2013.

I will keep my resolution for 2013. Will you?

Next post: What to document? Almost everything. 

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As a guy, I prefer barbecue-type holidays, such as Memorial Day or the Fourth of July, over Valentine's Day. As employers, you probably should, too, even if it is for different reasons.

A CareerBuilder survey published in 2011 found approximately 40% of workers have dated at least one person with whom they have worked, and 18% reported dating at least two people with whom they have worked. Clearly, workplace romance is pervasive. With it can come a host of unwanted side-effects, including loss of productivity, ethical dilemmas, depressed morale, and sexual harassment claims.

Sexual harassment claims can arise in a variety of situations, including when a workplace romance goes south.  They can also arise from what one employee might find to be a light-hearted joke, card or funny e-mail, sent to an employee who does not see the humor and might be completely offended.  A sexual harassment claim can even arise when a thoughtful boss gives a Valentine's Day gift to an employee for a job well done, and the message is misinterpreted. 

Since Valentine’s Day is upon us, take this opportunity to carefully review your policies addressing sexual harassment and workplace romances. As you do, consider the following:

1. Sexual harassment policy.  Review your company's sexual harassment policy to ensure it is clear, comprehensive, and consistently enforced. Check to make sure you have an acknowledgment signed by each employee.

2. Sexual harassment training.  Provide training to all your supervisors, and consider providing it to all employees. If done right, this type of training can go a long way when the EEOC comes knocking.

3. Conflict of interest policy.  Consider creating a policy prohibiting romantic relationships between supervisors and subordinates. To the extent such conflicts already exist, consider transferring one of the employees to another department.

4. So-called love contracts.  Consider requiring mandatory disclosure of all workplace romances, and have each couple sign a document acknowledging the relationship. The "love contract" should confirm that the relationship is consensual and will not interfere with job performance, and confirm that the employees understand the sexual harassment policy and their obligation to notify the employer of any violation of the policy.

5. Action on complaints. Conduct a thorough investigation of the issue and take appropriate action immediately upon receipt of a complaint or recognition of a potential issue. Make sure you do not brush complaints off, even if they come from a worker involved in a workplace romance.

These steps will help ensure that as those flowers and chocolates are delivered to your workplace tomorrow, you will be in the best position possible to prevent the Valentine's Day "gift" no employer wants—a sexual harassment complaint.

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A couple of events prompted this post.  First, as I was driving to work last week, I saw a car sporting an "Insured by Smith & Wesson" bumper sticker.  Perhaps this will officially out me as an employment law nerd, but, being that it was on a vehicle, this bumper sticker made me think of Florida's Bring Gun to Work, which I've posted about before.  Interestingly (scarily?), that law (Fla. Stat. 790.251) is one of the most searched terms on this blog.

Then, as those of you in this area have undoubtedly heard, there was an incident in Naples where an Ave Maria School of Law student was arrested for attempted murder, after allegedly threatening to shoot and even shooting at two fellow law students. This story has received widespread media coverage.  Of course the local papers like the News-Press and Naples Daily News have covered it with multiple articles, but it was even picked up by national legal publications like the ABA Journal (article) and top legal blog Above the Law(article).

How is this relevant to you and your workplace?  Interestingly (to the employment law dork, at least!), the Above the Law article quotes Ave Maria's spokesperson, who said the school "doesn't have a policy regarding students who are arrested."  Now, this guy was a student, not an employee, but this quote still raises a whole host of issues in my mind.  Should you have a policy on arrests?  Should you have a policy on workplace violence?  What if your employee is arrested for a violent act after hours, remains employed, then later commits a violent act at work?

While I could go on at length about these and other issues implicated here, I want to focus on a couple of things you, as business owners and HR professionals, can -- and should -- do to address violence at your workplace.

More after the jump.

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Most employers know about Florida's "Bring Gun to Work" law, even if they do not agree with it.  The law, which is codified as Florida Statute Section 790.251 prevents employers (with a few exceptions) from banning firearms on their premises under certain conditions.  More specifically, if the employer has an employee with a concealed weapons permit, the employer cannot prohibit any customer, employee, or invitee from possessing a firearm on the employer's premises, so long as the firearm is lawfully possessed and locked inside a motor vehicle.  The law exempts schools, correctional institutions, nuclear power plants, defense contractors, and employers involved with explosive materials.

What most employers may not know, however, is that their employee handbooks must conform to Section 790.251.  Many employers have handbook policies that may prevent an employee from bringing a firearm to the workplace, often subjecting an employee to discipline or even termination for violation of the policy.  While employers are free to prohibit employees from bringing a firearm inside a building or displaying it out in the open, a covered employer cannot prohibit an employee from keeping a firearm locked in his or her vehicle.

Employers should take care to ensure their handbook policies comply with the statute.  Often it is a simple fix, one which will not require a wholesale revision or change of the policy.  For example, revise an old policy to state "Employees are strictly prohibited from possessing firearms on XYZ Corp's premises, except when in compliance with Section 790.251, Florida Statutes."  Adding the italicized clause keeps the policy in line with the statute, without requiring the employer to completely eliminate the ban on firearms in the workplace.

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With the mountains of paperwork in the workplace these days, HR professionals often question what should -- and what should not -- be kept in an employee's personnel file.  Should it be every single document that refers to the employee?  Should it only be the "important" documents like applications and disciplinary records?  Or should it be something in between? 

As we all know, personnel files are very important, particularly in a time where employment litigation is booming.  A well-kept personnel file just might hold the employer's so-called "smoking gun," and perhaps the key to the case. 

A recent HR Hero email cited to a 2007 Montana Employment Law Letter article addressing this topic.  Briefly, employers should include documents like applications, offer letters, and employment agreements.  Performance documentation and handbook/policy acknowledgments should always be included (remember that "smoking gun" I mentioned?).  Among those documents that should not be included?  Anything related to employee health information, including information regarding health insurance.  This information should be kept in a separate, confidential medical file.

Though not comprehensive, the article is a good guide for what employers should keep in a personnel file.  Legal counsel can help address concerns regarding specific documents.  When in doubt, the best practice is to include a document about which you are unsure.  Better safe than sorry!

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The Shelter for Abused Women & Children in Naples recently launched a new website intended to assist victims of domestic violence, a recent Southwest Florida News-Press article reports. The website includes a variety of information, including tips on how victims can stay safe at work. Tips suggest, among other things, that victims show a picture of the abuser to supervisors/security guards, have telephone calls screened, and ask security or a coworker to escort the victim to his or her car.

These are good tips employers can use to help employees who may fall victim to domestic violence. It also provides us an opportunity to remind larger employers of an additional requirement: if an employer has 50 or more employees it is obligated to do more than simply assist its employee-victim.

Florida Statute 741.313 requires an employer who employs 50+ employees to permit an employee to take up to three working days of leave in any 12-month period to deal with domestic violence-related issues. This applies not only in situations where the employee is the victim of domestic violence, but also when a member of the employee’s family or household is the victim of domestic violence.

The law only covers employees who have worked for the employer for at least three months. The employee can use the leave to handle various legal and/or medical issues, including seeking a protective injunction against the abuser; obtaining medical care, mental health counseling, or services from a victim services organization; and securing the employee’s home or seeking new housing to escape the abuse. An employer is prohibited from discharging, demoting, suspending, or discriminating against an employee in any way for his or her exercise of rights under the statute.

Domestic violence leave may be with or without pay, at the employer’s discretion. Before receiving leave under the statute, the employee must exhaust all of his or her annual or vacation leave, personal leave, and/or sick leave if available, unless the employer waives this requirement.

Employers with 50 or more employees should include a domestic violence related leave policy in their employee handbook. This policy should address, among other things, whether the leave is paid or unpaid, and whether an employee must exhaust other types of leave before using domestic violence related leave. Employers should also take steps to ensure that any information regarding the request for domestic violence leave is kept confidential. Finally, all employers should take care to comply with any local codes or ordinances that may apply.

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