The SESCO Report – January 2011
Employer's Best Defense – Updated/Effective Employee Handbook
As we have reported over the past several months, EEOC charges, Department of Labor Wage and Hour claims, and employment lawsuits are increasing. Additionally, our federal government is referring complaints to the American Bar Association through a new government referral program of complaints to lawyers (see related article below).
With this said, employers must be extremely proactive in developing policies and procedures so as to successfully defend wrongful claims such as EEOC charges, lawsuits or even unemployment claims. Many times, well written and communicated policies and procedures are an employer's only and certainly best defense.
SESCO prepares custom employee handbooks for employers in all states and over our 60-year history, no SESCO client has ever been fined or sued for any inappropriate policy or procedure. In fact, our policies and employee handbooks have been crucial in defending our clients' actions.
You may contact SESCO for a free Employee Handbook Development Checklist which can be used to consider policies for inclusion as well as for completion in developing/revising an employee handbook. Further, reasons for developing an employee handbook include:
• Supports decisions thereby establishing and increasing management credibility.
• Promotes uniform/fair application of policies and consistency of treatment.
• Reduces risk of unlawful discrimination claims.
• Provides for evidentiary support for compliance with employment laws.
• Reduces confusion and misunderstandings about policies that affect employee morale as well as employment expectations.
• Acquaints new employees to the organization providing for an excellent orientation tool.
• Provides the necessary tool to managers and supervisors as the employee handbook is the cornerstone of the employer-employee relationship.
Additionally, policies for consideration considering the current employment environment include:
• Use of PDA's/cell phones
• Computer use
• Social Media/Facebook, etc.
• State EEO requirements
• Workers' Compensation/Injuries
• Specific state employment regulations
• Dating policies
• GINA policies
• Carefully designed and worded employment-at-will statements and proper disclaimers
Please feel free to contact SESCO to discuss your employee handbook needs. Retainer clients receive a free review of their employee handbook and select association members receive discounted fees on employee handbook reviews.
When Challenged, Responses to be Avoided
As we continue the discussion of prevention and the current "pro-lawsuit" employment environment, it is critical that managers avoid the following responses when challenged by an EEOC claim, unemployment claim or wrongful termination lawsuit.
1. "I fired him for no reason."
Even though 49 out of the 50 states have employment-at-will laws, if an employer is ever challenged and their response is, "we fired him for no reason," or "his employment was at-will," then the federal or state agency or court will deem that we had no job or performance related reason for separation. As such, they normally frown on providing no reason and as such, normally provide for a favorable decision on behalf of the employee. Always separate for some reason.
2. "Conducting reference checks are a waste of time."
When conducting training with managers, this is a very common response that we receive for not conducting reference checks. Managers often say, "You can't get anyone to open up and provide any information anyway, so why bother?" Or they will say, "It is illegal to provide any kind of reference."
Most states protect factual references and it is critical that not only references be obtained, but also factual references be provided.
Consider that a recent new hire committed a violent act or injured him or herself under the influence of an illegal drug. It turns out that the employee had done this before at a previous employer. The injured party seeks and attorney who asks, "Well, did you do your due diligence and do a thorough background check?"
We will want to avoid, "No, I didn't do a reference check because they usually don't yield much information." Obviously, that's not going the sit well should the organization/manager be sued for negligent hiring.
3. "When do you think you will retire? Oh, I didn't mean anything by that."
This is the "stray comments" defense. While one "stray comment" like "too old" or "when are you retiring" probably won't mean a conviction for age discrimination, it can bolster a case. "Isn't it about time you gave it up, old timer?" When these comments are coupled with a situation in which the oldest person was let go with no particular basis for the decision, juries may not see things your way. By the way, there is no mandatory age forcing an employee to retire.
4. "It was all in fun. She seemed to be having fun with us."
This is the standard line of people accused of sex harassment. "The female" is going to sue one day, saying, "I had go along with it; I have a family to feed."
Many times the female employee does participate or doesn't complain about inappropriate relations. Problem is, at some point in time, it is not going to be okay with the female employee and this is when the charge of sex harassment comes forth.
Remember, the intent behind the employee's behavior isn't the issue. It is the effect of their behavior or language upon the other person.
5. "I thought he'd stop."
This is the comment of every manager who ever ignored a problem until it exploded. Whether it be harassment, bullying, attendance, or any other behavioral issue, it is always the same: if you let inappropriate behavior go unchallenged, you are effectively condoning the behavior. It is never going to be a strong argument to say that you hoped it would just go away on its own.
6. "In our department, satisfactory actually means poor."
Performance or grade inflation isn't only happening in school – it is rampant at work. But it is going to leave you on the witness stand trying to explain why you fired someone for poor performance when you signed a performance appraisal giving a rating of "satisfactory."
The employee's attorney is going to ask you to read the company's definition of "satisfactory" that appears on the evaluation form you signed and is going to say, "Performs all duties in a satisfactory manner." It is not going to get any better from there.
It is critical that supervisors and managers be trained on basic employment regulations as well as the "do's and don'ts" in managing employees. As once an inappropriate statement is made or an employee's behavior goes unmanaged, many times it is too late once it reaches the human resource department.
"Bridge to Justice": Wage and Hour Connects Workers to New ABA-Approved Attorney Referral System
Excerpts from Our Government's Website
"Many workers across the country still struggle to obtain basic employment protections under the nation's minimum wage, overtime, and Family and Medical Leave laws. When denied these protections, the workers are unable to fully contribute to their local communities and businesses. Over the past two (2) years, the U.S. Department of Labor's Wage and Hour Division has added 350 new investigators and stepped up its efforts to help these workers through both complaint-driven and targeted enforcement. In a typical year, over 35,000 workers contact the Wage and Hour Division for help, including the 25,000 who need assistance with their minimum wage, overtime, or Family Leave claims...
Although the Wage and Hour Division is able to help the vast majority of these workers recover denied wages or lost jobs through conciliation, settlement, or, with a solicitor of labor, litigation, every year there are thousands of workers whose claims we cannot resolve because of limited capacity. In recognition of the fact that the Wage and Hour Division could not remedy every violation of the Fair Labor Standards Act and the Family and Medical Leave Act, Congress provided workers the right to pursue their own private litigation under these laws.
Thanks to an unprecedented collaboration between the Wage and Hour Division and the American Bar Association Standing Committee on Lawyer Referral and Information Service, the Wage and Hour Division will now connect these workers to a local referral service that will, in turn, provide the workers with access to attorneys who may be able to help. This collaboration will provide workers a better opportunity to seek redress for FLSA and FMLA violations and to help level the playing field for employers who want to do the right thing.
Beginning on December 13, 2010, when FLSA or FMLA complainants are informed that the Wage and Hour Division is declining to pursue their complaints, they will also be given a toll free number to contact the newly created ABA-Approved Attorney Referral System. If complainants choose to call the toll free number, they will be advised of the ABA-Approved lawyers in their area. The complainant may then contact the provider and determine whether to retain a qualified private-sector lawyer."
This referral program is unprecedented and further is critical in that back wage liability when investigated by the Department of Labor is typically two (2) years. However, in a private-sector lawsuit, the two (2) years liability expands to four (4) years allowing for punitive damages. In addition to the four (4) year back wage liability, the defendant (employer) must pay the plaintiff's attorney fees — which you can imagine can be extremely costly.
Finally, the Wage and Hour Division website states:
"When the Wage-Hour Division has conducted an investigation, the complainant will now be provided information about the Wage and Hour Division's determination regarding violations at issue and back wages owed. This information will be given to the complainants in the same letter informing them that the Wage-Hour Division will not be pursuing further action, and will be very useful for attorneys who may take the case. The Wage-Hour Division has also developed a special process for complaints and representing attorneys to quickly obtain certain relevant case information and documents when available."
The bottom line is employers must ensure that all of their compensation and pay practices meet with the Fair Labor Standards Act requirements. SESCO retainers receive annual compliance audits to determine compliance to federal Wage-Hour regulations. Those companies who are not currently a SESCO retainer client can inquire into our professional services including our monthly Service Agreement by contacting Bill Ford at 423-764-4127 or email@example.com .
Special Thanks to SESCO Clients!
Central Virginia Health Services
New Canton, VA
Commonwealth Care of Roanoke, Inc.
Thomas Nelson, Inc.
Oregon Funeral Directors Association
SESCO Client Feedback
"I want you to know that I think your monthly SESCO Report is excellent. I always read it and find it useful. The December 2010 issue was particularly helpful. I did not know about the HIRE Act, and found that we had two employees who qualified for this tax incentive. Thank you for providing it. Best wishes for a wonderful New Year." ~ Sandy Armstrong — Mt. Empire Eye Physicians
SESCO Client Inquiry — Staff Response
Question: One of our employees came to work with her lip pierced. Can we prohibit body-piercing jewelry in the workplace?
Answer: Yes. Even in our litigious society, employers retain certain rights. One of them is to expect that employees will be dressed, will be groomed, and will behave in a manner appropriate for their jobs, their workplace, and the community in which they work. If an employee's personal appearance or hygiene is such that it causes offense to co-workers or customers, it is appropriate for an employer to address the problem. However, a company without a written dress code will have difficulty defending its position. A dress code policy should focus on the business reasons for the standards in place. It is generally considered more reasonable to require strict adherence to a dress code in situations where employees have regular customer contact or where safety or hygiene is of particular importance. An employer's dress code might prohibit body-piercing jewelry other than earrings. It might also state that visible tattoos are to be covered during working hours. Finally, be certain to consistently enforce dress codes to prevent employees from feeling singled out.
Free SESCO Products Catalog
Special Insert — Spring Seminar Series 2011
Effective Leader/Manager – March 9-10, 2011 (Bristol, VA)
March 16-17, 2011 (Richmond, VA)
• Using Your Management Style Effectively
• Effective Leadership Skills
• Practicing Performance Management
• Setting Goals and Motivating Employees
• Positive Approach to Discipline
• Supervision Basics EEO, ADAAA, FMLA, EFCA, Wage Hour, Safety Compliance
Human Resources – The Basic Course – April 6-7, 2011 (Bristol, VA)
April 13-14, 2011 (Richmond, VA)
• Pre-employment Recruiting, Screening, and Hiring
• The Importance of Employee Handbooks and Clear Discipline Policies
• Determining Pay Rates and Developing Compensation Systems
• Effective Performance Appraisal Systems
• EEOC and Wage-Hour Regulations and Practices
• ADA, FMLA, COBRA, Workers' Comp Compliance
$375.00 per person and includes
comprehensive take-home materials
Register by February 16, 2011 and Receive 20% Off the Cost of Tuition!
Bristol, Virginia Location:
Courtyard by Marriott
3169 Linden Drive
Bristol, VA 24201
Richmond, Virginia Location:
(SESCO has partnered with one of our valued clients, Brown Distributing, to host our Richmond Seminar Series)
7986 Villa Park Drive
Richmond, Virginia 23059
To register contact:
Betty Treadwell, Seminar Registrar
SESCO Management Consultants
P.O. Box 1848
Bristol, TN 37621
Telephone: (423) 764 4127
Fax: (423) 764 5869
For a complete seminar brochure and registration information, click HERE