OCMetro Business - (Tiffanny Brosnan, partner at Snell & Wilmer LLP)

Spot a future plaintiff in your midst

Tue, 09 Feb 2010 16:08:00 GMT

I last wrote about ways to avoid hiring future plaintiffs. But sometimes they slip through the cracks, no matter how good your Future Plaintiff Radar may be. So, how do you spot the future plaintiff (the “F.P.”) who has already infiltrated your work force? Again, these tips come from getting to know hundreds of plaintiffs.

1) The F.P. whines – a lot. The whining is often about change. Changes in policies and practices, changes in his or her reporting structure, changes in his or her duties, changes in pay.

2) Life is not “fair” to the F.P. The F.P. compares him or herself to others and always ends up the victim. For example: “My sales numbers are low because you assigned the better territory to Mark.” This is often the subject of the whining mentioned above.

3) The F.P. “documents.”* He or she will always ask for things in writing and shun face-to-face meetings. I was stunned to learn, in one case, that co-workers and managers for years had been aware of an employee who kept a little notebook where he scribbled every insult and indignity he believed he suffered at work. When he transitioned from F.P. to actual plaintiff status he naturally produced the now very thick notebook as evidence.

*A strange corollary to this documenting habit is that the F.P. often refuses to sign documents you give him, such as written warnings.

4) People don’t like the F.P. Sounds petty, but it’s true. Factors one through three lead to a person who is difficult to be around. Supervisors have trouble managing this individual and co-workers have trouble working alongside of him or her.

One of my favorite personnel management quotes is this: “Remember: You do not have a master’s degree in personality restructuring, and your company is not receiving any federal funds enabling you to profit from ministering to the employment needs of the chronically unhappy.” It’s from “No Fluff, No Puff: Just Management and Communication Principles that Work” by Jim Cronin. It describes the F.P. – the chronically unhappy individual who is in need of personality restructuring.

Now, you will be able to spot the F.P. Next time, I will tell you how best to get rid of him or her.

Don't hire a future plaintiff

Tue, 26 Jan 2010 14:22:00 GMT

After representing employers in hundreds of lawsuits filed by disgruntled employees, patterns start to emerge. One pattern – many of these future plaintiffs should never have been hired. So, how to spot a future plaintiff? The following tips all come from reviewing the personnel files of plaintiffs.

An employment application is your primary tool. Require that applicants complete an application and fill out every line. Oftentimes the future plaintiff either does not complete an application or leaves it partially filled out.

Next, scrutinize the application. Is it internally consistent? Do all the dates match up? Are there any gaps in employment? Has the applicant bounced around from job to job or different careers altogether? Did the applicant take a demotion at some point, or is the applicant taking one to come work for you now? Is the applicant reluctant to provide personal information such as their home address and instead only provides a P.O. Box address?

To fully utilize the application as an effective hiring tool, you must verify the information contained in the application. Call the former employers and confirm the information provided. When you call, don’t ask for the person listed on the application (the future plaintiff isn’t going to voluntarily list someone who is going to tank them). Instead, ask for department managers, human resources employees – anyone who will talk to you. While employers typically only provide dates of employment, title and possibly pay information in response to reference checks, future plaintiffs routinely lie about even this basic information. Call the applicant at his or her current place of employment to see if he or she is still working there. I have seen plaintiffs lie about this fact, hoping that by labeling it a “confidential job search” you won’t think to call the current place of employment.

Consider hiring an outside company such as HireRight to run a full background check. Consider drug testing. In California, it is almost always illegal for an employer to randomly test current employees, so this is probably your only shot.

In my next installment: how to spot a future plaintiff who slipped through the cracks and is currently working for you.

PDAs and hidden wage-hour violations

Fri, 04 Dec 2009 11:29:00 GMT

“I’m just going to check my e-mails before going to bed.” “I’ll shoot off a quick text message while waiting in line for my coffee.” These are the thoughts of a conscientious, productive employee, right? The type of employee you want. What about the supervisor who expects his subordinates to answer cell phone calls at all hours of the day and night?

These are the employees who will end up costing you. Under the wage-hour laws, when you are dealing with hourly employees who are nonexempt from minimum wage and overtime requirements, they must be compensated for all “time worked,” regardless of whether it is in the office, at home or at the coffee shop. But employees typically don’t record this time.

Failure to compensate employees for that time is a violation. If the time spent is above and beyond the normal eight-hour day, then you also incur overtime violations. Employers will be responsible for the wages (and possibly the overtime wages), penalties and attorney’s fees.

Perhaps an even less obvious example is what is known as "sync-time." This typically arises with employees who telecommute. They might routinely be required to “sync up” their PDA to the company’s network. Plaintiffs’ lawyers have picked up on this practice as well. It’s an easy class-action target.

So how can you minimize your liability?

Create a policy explaining that employees will be compensated for all hours worked. Follow that policy! Require employees to accurately record all of their time worked and then verify their time cards every payroll period. Audit employees’ time records. (Hint: Be suspicious of exactly eight-hour days, every day, every week. You employ people, not robots.) Discipline employees for not accurately recording their time.

Employers: Ready for the swine flu?

Fri, 18 Sep 2009 10:01:00 GMT

We are already fielding questions from employers regarding what they need to do to prepare for the flu season. Employers should take the following steps now to protect their employees’ health and safety, while at the same time minimizing business interruption and potential liability.

· Regularly check the websites of the Centers for Disease Control and Prevention and the Occupational Health and Safety Administration. The situation is rapidly evolving, and these websites are regularly updated with the latest facts and guidance on the swine flu virus.

· Communicate with your employees. Assure them that you are monitoring the situation with the goal being to maintain a safe and healthy workplace. Stress to them the importance of not infecting their co-workers, customers and others, should they become exposed.

· Make good workplace hygiene easy. Post “wash your hands” reminders above sinks. Keep supplies of soap, cleaning products and antibacterial hand sanitizer well-stocked and readily available.

· Consider modifying your policies. You don’t want sick employees coming to work out of fear that they will be terminated or because they can’t afford to take time off. Consider implementing telecommuting policies and expanding upon paid time off in the event of an outbreak.

· Be mindful of employment laws. Depending on your number of employees, you may be required to provide your staff with up to 12 weeks of leave time under the Family and Medical Leave Act and the California equivalent, the California Family Rights Act. You are also required to keep employees’ medical information confidential, and it can only be shared in limited circumstances. Do not discriminate against employees in a protected class, such as individuals with ties to Mexico (where the swine flu virus is alleged to have originated), or qualified individuals with a disability.

For more information, Snell & Wilmer has prepared an online legal alert regarding this subject, which is available at swlaw.com.

Employers’ property vs. employees’ private space

Thu, 02 Jul 2009 11:33:00 GMT

You provide your employee with a computer, a phone and a BlackBerry. You pay for this equipment, program it, service it and keep it after the employment relationship ends. Of course, you are interested in knowing what the employee does with this equipment: Is he using it to forward pornographic images to co-workers, to text message his friends, to surf the Internet, to access your confidential information in preparation of starting a competing business? Surely, you can monitor the employee’s use of this equipment to determine if the employee is engaging in misconduct, right? Not exactly.

Employee privacy rights are at the core of an ever-changing body of state and federal law. Employees may still have a reasonable expectation of privacy when they walk through your doors, access the Internet through a company-owned computer or make a call on a company-owned telephone. Unfortunately for employers, “it’s my computer, and I can do whatever I want with it” is not the law.

So, what is an employer to do? Give employees free reign over the equipment and trust that they use it properly? Go ahead and monitor employee usage and hope you don’t get caught? Neither is a good strategy.

Instead, consider your business needs and what type of monitoring you would like to do. For example, monitoring phone calls would be of primary importance for a customer-service call center; retailers would prefer to have video cameras monitoring cash registers; and a company doing research and development for new products might want to ensure that no one is accessing trade-secret specifications on its computer systems. Then, learn the laws governing what you can and cannot do. Next, develop a written policy that protects your interests and complies with all applicable laws. Finally, ensure that your policy is applied correctly and consistently.

Facebook: the new water cooler?

Fri, 12 Jun 2009 11:23:00 GMT

The office water cooler has historically been the site for employee gossip and gripes. Employers can only go far so in attempting to squelch this kind of talk. When it comes to compensation-related discussions, the California Labor Code gives employees the right to disclose the amount of their own wages. The National Labor Relations Act (NLRA) protects employees’ group discussions about their working conditions, including fairness of their compensation. And despite what many non-union employers think, the NLRA applies to them, as well.

So what happens when employees take their complaints to the Web? I had my first Facebook-related client question recently. A management-level employee posted complaints about his employer on a Facebook “wall-to-wall” chat. This means that it wasn’t just a one-on-one conversation with a co-worker. Rather, it was made public for all of the writer’s Facebook “friends” to see. And this manager called his company by a name that can’t be repeated here. One of these Facebook “friends” (who is probably no longer a friend) ratted the manager out to the company. The company wanted to know if they could fire the manager. With my limited knowledge of the case, I recommended that the employee could be fired. If an employee was overheard at a coffee shop complaining about his employer to a group of friends and calling his supervisors by disparaging names, would the employer have any qualms about firing him? Probably not.

Facebook boasts that it has 175 million users, with the fastest-growing demographic being 35 or older. With more and more working-age people joining Facebook, I suspect that the scenario described above is just one example of the Facebook-related issues that employers will face.

COBRA subsidy requires action by April 18

Tue, 14 Apr 2009 08:35:00 GMT

There has been endless debate over what change the new administration might bring and how that change might affect employers. Through the American Recovery and Reinvestment Act, or ARRA, signed into law on February 17, employers’ COBRA (the Consolidated Omnibus Budget Reconciliation Act of 1985) obligations have already changed, and immediate action is required.

COBRA has always allowed people to continue their employer-sponsored health coverage after the termination of their employment. But this came at a cost – sometimes a prohibitively high cost – to the individual. Under the ARRA, an individual who was “involuntarily terminated” and eligible for COBRA anytime between Sept. 1, 2008, and Dec. 31, 2009, now has to pay only 35 percent of that cost. The entity to which the COBRA payments are made (typically the employer) can claim a credit against its payroll taxes for the remaining 65 percent. This subsidy will continue for a maximum of nine months.

Employers should immediately modify their COBRA notices and send them to individuals who became eligible for COBRA on or after September 1, 2008. This also applies to those individuals who previously declined COBRA. Therefore, employers should audit all employee terminations from Sept. 1, 2008, forward to determine whether a new COBRA notice should be sent. Model notices can be found at the Department of Labor’s Web site. The notices must be mailed by April 18.

Employers also should be prepared to adjust their payroll practices in order to recover the 65 percent subsidy. The IRS has issued a revised version of Form 941 (the quarterly employment tax return) for employers to use in claiming the credit.

New guidance from the Department of Labor is issued almost daily on this subject, and its Web site is a great resource for employers.

Restaurant employees and meal periods

Mon, 09 Mar 2009 11:33:00 GMT

Do restaurants and other employers routinely violate California laws regarding employee meal periods? Tipped or commissioned employees, such as servers and salespeople, frequently choose to skip their meal periods. These employees don’t want to walk away from potential tips or commissions to take a 30-minute break. Is this against the law?

Some courts say yes while others say no. The confusion lies in the definition of the word “provide.”

California Labor Code Section 512 states that in certain situations, employers must “provide” employees with a 30-minute meal period. Plaintiffs’ lawyers (who file new class-action lawsuits on this topic every day) argue that this means employers must ensure that the meal period is taken. Essentially the employer must force the employee to stop working and take a full 30 minutes off. Employers’ lawyers go with the Webster’s Dictionary definition of “provide” which is “to supply or make available.”

The California Supreme Court is reviewing a key case on this subject with a restaurant company as the defendant, but it could be a year before the issue is resolved. In the meantime, what should employers do?

At a minimum a company should:

•   Audit policies on meal periods to make sure that they accurately reflect the law.

•   Schedule employees so that it is possible for them to take their 30-minute meal period. Arrange for someone to cover for an employee on break. For sales employees whose appointments are booked by the employer, schedule an open time in the middle of the shift for a meal period.

•   Do nothing to impede, discourage or dissuade employees from taking their available meal periods.

5 New Year’s resolutions for employers

Wed, 04 Feb 2009 14:04:00 GMT

We're one month into the new year, but you can stay on the right track for the next 11 months by resolving to avoid issues that consistently result in employment-related lawsuits:

1) Thinking that you have don’t have to pay overtime simply because an employee is “salaried.” Paying someone a salary is only one part of a several-part test to determine whether an employee is truly exempt from overtime. This is a complicated area of the law. Consult a human resources professional or attorney before classifying any employee as exempt.

2) Not paying overtime on a daily basis. California employees must be paid overtime when they work more than 40 hours in a week (the federal rule) and/or when they work more than eight hours in a day. In a workweek where an employee works only one day, and on that one day the employee works 8 and one-half hours, you must pay the employee 30 minutes of overtime.

3) Misclassifying employees as independent contractors. This issue was front-page news recently when the Orange County Register was sued for misclassifying delivery drivers. It resulted in the Register agreeing to pay a $42 million settlement. Federal and state agencies and courts use a number of different tests to determine whether a worker is an independent contractor. As with overtime exemptions, this is an area where employers should do their homework before labeling someone as an independent contractor.

4) Using an unlawful noncompete or nonsolicitation agreement. The California Supreme Court recently made it clear that noncompete agreements and even nonsolicitation agreements (i.e., an employee’s agreement not to solicit your customers for a certain time period following termination) are almost never enforceable. Attempting to enforce an unenforceable noncompete can expose an employer to punitive damages.

5) Failing to pay an employee all of his wages (including accrued vacation) upon termination. When terminating an employee, have the final check in hand to give to the employee. Do not put the check in the mail, and do not wait until the next payroll period. The employee is entitled to a penalty equal to an additional day’s pay for every day his final check is late, up to a maximum of 30 days. This penalty is obtained through the Labor Commissioner’s office.

Mandatory sexual harassment training

Mon, 22 Dec 2008 15:01:00 GMT

The end of the year is a good time to do some housekeeping. Just like cleaning out the rain gutters, mandatory sexual harassment training for supervisors is something that must be done every two years, according to California law. There was a flurry of activity at the end of 2005, with employers scrambling to do the training before the original Jan. 1, 2006, deadline. But have you done it again?

Employers with 50 or more employees must provide the training for all supervisors once every two years. In addition, all new supervisory employees must receive the training within six months of their assumption of a supervisory position. So, all employers of 50 or more employees should ask themselves two questions:

(1) When was the last time we did the training for all supervisory employees?
(2) When was the last time we promoted someone to a supervisory position?

If it is time to re-do the training, you can information from a number of sources, including employment attorneys who will customize the training to your workplace, or through Web-based providers such as the California Chamber of Commerce (calbizcentral.com/Store/Products/Pages/HPTC2.aspx) or Employer’s Group (employersgroup.com/traininganddevelopment/onlinetraining/index.shtml).

To convince your supervisors to attend the training, remind them that, unlike most of the rest of the country, in California the company is strictly liable for harassing conduct and can be individually liable as well.

That distinction, plus the fact that employers must pay for the training, are just two examples from a growing list of laws making it difficult – and expensive – to be an employer in California.

Holiday parties

Tue, 09 Dec 2008 13:38:00 GMT

Employees + alcohol + a little too much of the holiday spirit = litigation. The calls usually start in January, and they go something like this:

Client: I’m looking at a lawyer letter that says one of my managers groped a subordinate at the holiday party. According to the letter, the woman was forced to quit after the incident and is now suffering severe emotional distress. They’re threatening to file a lawsuit. What do we do to avoid this happening in the future?

The following are some simple steps to take to possibly avoid a lawsuit, the most expensive form of the holiday hangover:

1. Redistribute your Harassment-Free Workplace Policy shortly before your holiday party. Remind employees that holiday parties are work events, and the regular workplace rules apply. If you don’t have a Harassment-Free Workplace Policy, get one. The California Chamber of Commerce is a great source for employee handbooks, mandatory posters and other forms.

2. Invite spouses and significant others to the holiday party. Their watchful eyes are better than anything you can write in a handbook. Taking this theory a step further, consider inviting clients or employees’ families. A more business-like or family-friendly atmosphere will reduce bad behavior.

3. Speaking of bad behavior – alcohol diminishes judgment, not liability. When alcohol is served, keep consumption in check. Offering food is a must. Consider using drink tickets. Hire a professional bartender to check IDs and verify that only those 21 or older are drinking. Instruct the bartender to use his or her judgment in “cutting off” intoxicated guests. Offer to reimburse employees for the cost of their cab fare home.

Bah, humbug.