Beware the Beatles.
Beware the Beatles.

For years, I’ve been “warning” about the upcoming holiday of Valentine’s Day.

Back in 2011, I recapped several cases where employees’ inappropriate behavior on this day of love, led to lawsuits.

Apparently, there were some people who didn’t read the blog, because just a few years after that, I recapped a few more cases where Valentine’s Day led to a few more lawsuits.

My friend, Jon Hyman, this week cited a few of the same cases in his reminder that he hates Valentine’s Day.

Now, I could use this post to rehash the same worn reminders that sexual harassment is bad and that romantic relationships between employees can be even worse.  (Wait, see what I did there?)

But harassment cases still occur.

So, let me try a new approach this year; let’s try the opposite and Let Love Rule The Workplace!

Who am I to tell others who to love? Who am I to stand in the way in Cupid’s arrow?  Here are three “tips” on how to add love to the workplace:

  • First, be sure when you have a crush on someone to play favorites towards him or her.  And if they turn away your advances? Let them know your displeasure by giving work elsewhere. That will remind them that love should rule the workplace.
  • Second, why establish a policy regarding sexual harassment? Who needs rules regarding love? And what should you do if your company has such a policy? Well, then just ignore it! Let love set the rules of the workplace.
  • Third, if you hear of “love” going on in the workplace, just turn a blind eye.  Love needs no witnesses and true love will work itself out eventually. And if it doesn’t, well, the workplace is no place for the broken-hearted.

And here’s a bonus tip: Be sure to have your lawyer on speed-dial.  Because if you follow these tips, you could pretend you’re a hopeless romantic, but you’re most likely to be found liable of sexual harassment.  You may need something more than love to survive in the workplace.

(P.S. If you can’t figure out that the above tips are SATIRE, you should give me a call. Chances are you’re doing something else wrong too and I’d love to help.)

 

 

I’ve talked many times before about the importance of a well-drafted disclaimer in your employee handbook (here and here, for example).

This is not a new thing and in Connecticut dates back to an important case back in 1995 .

Without such disclaimers, employers can be subject to a breach of contract claim by your employees.

Yesterday, a federal judge in Connecticut was the latest to reinforce this message by allowing a breach of contract claim to proceed based on the employer allegedly failing to comply with its own anti-harassment policy, even though the federal legal claim of harassment was time-barred.

You can download the decision denying the employer’s motion for summary judgment on this issue in Mariani v. Costco Wholesale Corp. here.

One important note at the outset. This decision does not mean Costco is liable for a breach of contract; all the court decided is that the employee’s claim can proceed to a trial.  (In doing so, the court threw out many other claims of the employee.)

The facts on this issue seem straightforward. Costco seemingly has an employee handbook that it titles “Employee Agreement”.  It requires the employees to acknowledge receipt.  Costco conceded to the court that this “Agreement” could create a contractual obligation to its employees.

But, according to the court, Costco’s anti-harassment policy created an additional contractual responsibility that it did not disclaim. In other words,  the court said that while the employer was under no obligation to have tougher anti-harassment policies than state or federal law — having said it would abide by stronger language, it must follow that or face a breach of contract claim.

The court’s “money” quote is this:

The Employment Agreement does not contain any disclaimer language to the effect that its “super” anti-harassment provisions do not create legally enforceable protections beyond the protections of background law. Today’s corporate employers compete not only on grounds of their raw ability to make, deliver, and sell goods and services at a low or reasonable cost but also on grounds of their corporate self-image as “good” corporate citizens. They likewise compete on grounds of their ability to attract employees by means of promises of innovative management practices that foster dynamic workplaces that are comfortable and safe. This is not to fault the fact that Costco has adopted progressive anti-harassment policies but only to make clear that these policies, as framed without disclaimer, may give rise to legally independent and enforceable obligations for the benefit of employees that rely on them

How can Connecticut employers avoid this same result?

This case should be yet another reminder of the importance of a disclaimer in any company handbook that these policies.  Remind employees that no provision of the handbook creates an employment contract or any other obligation in regard to employment.  And consider using this language in the acknowledgment of receipt.

And, without stating the obvious, consider calling your employee handbook, well, a handbook instead of an “agreement”.  If you call it an agreement, a court isn’t going to disagree with you.

With the year coming to a close, this is the perfect time to have your handbook reviewed by an attorney.  Otherwise, you could be facing an employment law claim that you created yourself.

 

Costco Contract Claim

In posts earlier this week, I’ve discussed what the NLRB’s Connecticut Office is doing and what to expect for 2010. 

But as I continue to recap the breakfast I attended earlier in the week with NLRB (Region 34) Regional Director Jonathan Kreisberg, of particular importance to employers was the discussion about what issues the NLRB may see reoccur from time to time.  The NLRB recapped some of these in its January 2010 newsletter and its worth a read through (page 4).

Here are some highlights from our discussion:

  • Kreisberg indicated that employer rules that have broad confidentiality provisions prohibiting employees from discussing wages, benefits and working conditions with co-workers are likely to be struck down. While protecting "trade secrets" is a legitimate concern, he indicated that many employer rules — in his view — go too far. 
  • He also said that rules that prohibit employees from discussing non-confidential matters with the media are likely overbroad, though rules that restrict an employee from talking with the media as the company’s "spokesman" may be more palatable. For more information, he pointed to a relatively new NLRB case which discusses this in more detail: Trump Marina Assocs., 354 NLRB 123 (2009).
  • Kreisberg also noted that anti-solicitation rules may be properly drafted so long as the rule does not prohibit employees from distributing written materials during non-working time in non-working areas.  Kreisberg said however that employers often run into difficulties in the selective application of the rule. (And in this time of Girl Scout cookies, it’s a good reminder.)
  • He did note that employers can prohibit the use of employer’s e-mail system for union solicitation but he again cautioned that selective enforcement of the rules could lead to issues with the NLRB down the road.  
  • We also discussed "anti-harassment" policies. For the most part, if such policies are in the context of discrimination/hostile work environment discussions, he did not see much of an issue with it.  But he indicated that the NLRB will look to see if the application of the rule is showing an anti-union bias.  He also reminded everyone that during elections, the NLRB seems to allow behavior (particularly from union personnel) that might not otherwise be tolerated if in the context of daily working activities.
  • Lastly,  Kreisberg indicated that the NLRB had produced a video designed to inform the public about the role of the Agency in conducting elections. It is also available on DVD upon request to employers and others.  (And he noted that if an employer uses this video during an election, it would pass muster as an neutral educational video.)

So what’s the bottom line for employers? 

  • Review your confidentiality, anti-solicitation and anti-harassment policies to ensure that they will pass muster under scrutiny.
  • Perhaps more importantly, educate staff about the appropriate application of the policy to union activities.
  • And finally, even if you do NOT yet have a union at the workplace, these rules (such as blanket prohibitions on employees’ discussions of wages) may still apply, so if you’re concerned, be sure to seek appropriate legal counsel.

 

Next time you’re driving on the highway, take a look at the road signs. Not for what they say, but how they say it.  Are they new or worn? Easy to read or difficult to see? Straightforward or confusing?

Courtesy Steve Alpert's Roads, http://web.mit.edu/smalpert/www/roads/

If you drive down I-95 around Fairfield and Westport, you’ll notice something different lately. The signs are fresh, easy to see and clear.  In fact, when you start getting down to Norwalk or so, you’ll be struck by how worn out the signs are in that area of the state and how unreadable some are.  (A terrific article in the New York Times from August 2007 discusses the nationwide change in signs to a new "Clearview" font, if you’re curious.)

I was thinking about this after I had a discussion with a client recently about the benefits of reviewing their employee handbook.  "It’s fine; we’ve had it for 15 years without an issue," they said.  But it turns out it wasn’t "fine", the handbook lacked some of newer or updated provisions that have been drafted to comport with changes in the law.  Indeed, the handbook was a confusing hodge-podge of policies that were, at times, unclear, outdated, and confusing.

If your company’s handbook is as old as some of the road signs out there, here are four areas to re-examine.

  1. At-Will Disclaimers –  This disclaimer will notify employees that they are at-will and that this handbook does not change that relationship.  Disclaimers should be displayed prominently and be sufficiently specific.  The disclaimers should also be able to draw attention to a reasonable person.  Lastly, the disclaimer should explicitly reserve the right of employers to change the policies at any time, with or without prior notice.
  2. Anti-Harassment Policies –  The Supreme Court decisions of nearly a decade ago told employers two important lessons: a well drafted policy and well-drafted complaint procedures to deal with harassment issues will go a long way to reducing an employer’s liability for many types of sexual harassment.  Indeed, the EEOC has suggested that employee handbooks are an excellent vehicle for notifying employees about such policies.  Thus, a review of the anti-harassment policies and procedures is a good idea to make sure they take advantage of this important defense provided by the Supreme Court.
  3. Vacation/PTO Policies – Some employers have re-evaluated their vacation packages and other days off to avoid some of the hassles and abuses that have taken place at their companies. Some have moved to a strict "Paid Time Off", which looks less at the reasons for taking time off, and more at the overall attendance of the employee in general.  Some have also added a provision to make it clear that employees earn only a pro-rata share of the vacation time during each month, to prevent employees who leave at the beginning of the calendar year to be paid for unused vacation time for the entire year.
  4. Electronic Communications – With the rise of the Internet and web-based e-mail, computer access and misuse have only multiplied in the last decade. Moreover, employees who use e-mail and instant messaging are prone to using it informally.   A comprehensive policy to address what conduct is appropriate will give employees some guidance into the do’s and don’ts of e-mail and IM.  With Connecticut’s passage of an Electronic Monitoring Act,  employees must also be notified if employers are tracking their computer systems, which may involve keystroke reviews or internet firewall tracking.  

Handbooks may not be as glamorous as addressing the "hot" issues of the day, but updating a handbook will pay dividends for years to come. With clearly marked signs for employees on how to proceed, it’s less likely that one will get lost on the way.