addict-1032371_1280Editor’s Note:  At the time of publishing, there was a typographical error in the title of “Wedding.” We apologize for any confusion.

Amendment 2 has passed – it’s no longer a pipedream (no more puns, I promise). So now what for employers? Will it gut employers’ drug-free workplace policies? Will employers be required to grant accommodations to prescription card carrying users (e.g. provide a location for such employees to light up during the work day?). Will employees be able to successfully sue employers who terminate them for failing a drug test due to a positive test for medical marijuana use? There are sure to be other questions and issues arise, some of which may take court cases to fully answer, but let’s take a look at what we know:

  • A Constitutional Amendment takes effect the first Tuesday after the first Monday in January. That would be an effective date of January 3, 2017;
  • The Florida Department of Health will then have six months to pass implementing regulations;
  • The Department must begin issuing patient and caregiver identification cards, and registering MMTC’s (Medical Marijuana Treatment Centers) a/k/a/ “dispensaries”, within nine months from that effective date.

While the infrastructure and implementing regulations are ramping up for the new law and the industry it will spawn, employers may be well served to use the time now to survey their approach to the law. Consider these facts:

  • The Amendment specifically states that it shall not require accommodation in a place of employment.
  • It specifically states that it does not purport to give immunity under federal law.

Why are these facts important?

Continue Reading Weeding Out Workplace Impacts of Medical Marijuana Legalization

social media iconsApple Blue Ivy Moonbeam, a Generation X HR Director who considers herself super savvy when it came to all things Interweb, drafted a social media policy to include in FacePlace, Inc.’s employee handbook. FacePlace is a non-union workplace with over 300 employees, most of whom work from various “virtual” offices away from FacePlace’s home office. Convinced she created the best social media policy ever, Apple submitted the policy to the NLRB for review.

 

Which of the following policies do you think the NLRB found lawful?

A. You should never share confidential information with a team member unless the person has a need to know the information to perform their job.

B. Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.

C. Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between team workers online, even if it is done after hours, from your home network.

D. The NLRB found all three unlawful.

Continue Reading Employment Law IQ: Social Media Policies and Handbook Headaches

National_Labor_Relations_Board_logo_-_colorContinuing in our series of Employment Law IQ, what would you do?

Scenario:  Valerie recently graduated from FGCU and got her first job, a position as HR Director for Hire You Too, a local, non-union staffing agency. Though Hire You Too has been in business for a number of years, Valerie is the company’s first dedicated HR employee. Eager to establish herself as an important member of the Hire You Too team, the first thing Valerie does is review Hire You Too’s Employee Handbook. While most of the Handbook looks good, Valerie wants to revise the Acknowledgement, because she remembers from her “Labor 101 Class” that the NLRB has cracked down on at will employment disclaimers.

Which of the following statements should Valerie avoid for the Acknowledgement?

A. I further agree that the at will employment relationship cannot be amended, modified, or altered in any way.

B. The relationship between you and Hire You Too is employment at will. This means that your employment can be terminated at any time for any reason, with or without cause, by you or Hire You Too.

C. Employment with Hire You Too is employment at will. Only the CEO of Hire You Too has the authority to alter the at will employment relationship, and then only in writing.

D. Valerie can choose any one of the three, since Hire You Too is a non-union workplace and does not have to worry about the NLRA.

Continue Reading Employment Law IQ: At Will Employment Disclaimers – A Violation of NLRB?

Employee handbooks…every employer should have one, but does yours include policies that are unlawful? Test your employment law IQ and let us know what would you do.

Scenario: Dickie V., the HR Director for Bracketology Secrets, Inc., has asked Bracketology’s employment law counsel, Billy B. Ball, to review Bracketology’s Employee Handbook, which was last revised in 2007. Since then, Bracketology has grown to25 employees, all located at one central location. When Dickie V. receives Ball’s written analysis of Bracketology’s Employee Handbook, he is shocked to see so many suggested revisions.

Which of the following policies do you think Billy B. Ball left unrevised?

A.  Bracketology Secrets, Inc. compensates its employees on a merit-based system. To avoid creating hostility or other issues in the workplace, Bracketology employees are not permitted to discuss their individual compensation packages with other Bracketology employees.

B.  Employee personnel files are property of Bracketology Secrets, Inc., and will not be released to any employee or third party without a subpoena or similar court order.

C.  Bracketology Secrets, Inc. desires to keep all of its employees, customers, vendors, and the general public safe on its premises. As such, any employee who brings a weapon to Bracketology premises, whether on their person, in a bag, or in a vehicle, may be subject to immediate termination.

D.  All three policies are acceptable as written.

Continue Reading Employment Law IQ: Outdated and Unlawful Policies in Employee Handbooks – What Would You Do?

In my last blog post on improving your workplace documentation practices, I discussed best practices for effective documentation. This post addresses when to prepare documentation of a workplace event, observation or communication.

To be effective, documentation needs to be accurate, objective, specific, and clear. But, it also needs to be TIMELY! In this fast paced work world, you always want to have current information available. We also know that memories fade as time passes. If you document early, you are more likely to be accurate and complete. Judges and juries generally perceive contemporaneous documentation to be more reliable than documents prepared days after an event occurred. For these reasons and others, I encourage my employer clients to adopt the mantra, "Do not delay; record it today."

If time has passed without documentation, resist the urge to backdate a document. Backdating is never a good idea, and back dating some forms may even be a criminal offense.

All is not lost if you forgot to prepare documentation in a timely manner. Late is generally better than not at all. If appropriate, consider writing an "as you know memo" to document past activity, such as the following notation to an employee’s personnel file:

As you know, I previously warned you about the need to arrive at work by the start of business at 8:15 a.m. Today you did not clock in until 9:15 a.m. . . . "

The "as you know memo" documents a past event in the context of a current event.

Consult your counsel if you have questions about workplace documentation.

Next post in this workplace documentation practices series: Where to put the workplace documentation? It depends.

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!

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.

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

 

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. Continue Reading A Potential Valentine's Day Equation: flowers + chocolates = sexual harassment

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.

 

 

 

Continue Reading Insured by Smith & Wesson: Revisiting Workplace Violence Issues