Four Recent HR & Employment Law Developments

As those working in human resources and my fellow employment lawyers can attest, the last few years have given us constant change.  New employment laws, new labor regulations, federal agencies aggressively enforcing both, and significant cases being issued almost daily make it tough for even the most seasoned “HR Genius” to keep on top of all of the developments.  I try to lighten the load through this Blog, but like you, only have so many hours in the day.

So,  this week I am going to lean on my management-side employment law colleagues at Michael Best & Friedrich.  Below are just a sampling of the recent articles and “client alerts” they have authored recently:

1.  Wisconsin just enacted its “Right-To-Work” Law.  What does this mean for employers in Wisconsin? Click here.

2.  The Department of Labor just issued its Final Rule revising and expanding the definition of “spouse” to include those from same sex marriages.  For more details, click here.

3.  Utah just enacted a new law prohibiting discrimination against employees on the basis of their sexual orientation and “gender identity.”  If you have operations there, then you should  click here.

4.  Do you know what constitutes a valid employment claim “release,” and when you can lawfully “require” employees to sign them?  For this information and more, click here.

Hopefully you will find these helpful in your quest to becoming (or remaining) an “HR Genius.”

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

 

 

 

3 Basic Rules For Employee Handbooks

Many employers have “Employee Handbooks” or “Employee Manuals” containing various employment policies. I think they are a necessity for most workplaces. Often, however, I see the same mistakes made by employers that utilize handbooks.  Although there are numerous tips regarding how to draft and utilize a handbook effectively, here are 3 basic rules to consider and apply:

1. Keep it (Semi) Brief.  Believe it or not, I have reviewed handbooks up to 100 pages long.  Handbooks should not aspire to be the length of a Stephen King novel.  Employees lose the will and desire to read the Handbook after about the first 2 pages anyway, so keep it brief.  Cover the main points, and wrap it up.  Shoot for 30 pages or less.

2.  Distribute the Handbook/Manual/Policies.  I know it seems obvious, but some employers guard their Handbooks/Manuals/Policies more closely than the formula for Coca Cola, and don’t actually give them to their employees.  Sometimes they only distribute them to “supervisors.”  Employees aren’t mind readers – if you want to apply a handbook’s policies to employees, you need to actually give it to them.   Post it on your Intranet, hand it out at new employee orientation, and/or email it to employees.

3.  Update your Handbook Periodically.  Having a handbook that was last updated during the Reagan Administration is sometimes worse than not having one at all.  Employment laws change.  New employment laws are constantly being implemented.  Your workforce may have grown to a size where you are now covered by certain laws (such as the FMLA’s 50 employee threshold).  Consequently, it is critical that you review and update your handbook periodically.  Try to do so at least every two years.  If you can review and update it annually, you are ahead of 90% of all other employers on the road to compliance.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

Sweat the Little HR Details

Unfortunately, it is a common occurrence for employees and ex-employees to file lawsuits and other claims against their employers.  In 2012 there were over 100,000 discrimination and retaliation charges filed with the Equal Employment Opportunity Commission (EEOC) alone.  There were also thousands of claims under the Fair Labor Standards Act (FLSA)  and Family and Medical Leave Act (FMLA), and innumerable wrongful termination claims, breach of employment agreement claims, grievance arbitrations, and non-competition disputes.

Given this potential exposure, it is critical that a Human Resources Manager “sweat the details” so that if an action if filed against his or her company, the company is in a better position to defend against and (hopefully) defeat it.

One little detail that I frequently see overlooked by company officials involves termination letters.  It is not enough to prepare a termination letter and give it to the employee.  It is critical that the company keep a signed and dated copy of the termination letter on company letterhead in the employee’s personnel file.  

Failure to do so creates numerous evidentiary problems.  First, the employee may claim the company never gave him a termination letter, and challenge the reasons the company now asserts were the basis for his termination.  Second, unless prior steps are taken, printing off an unsigned “draft” from the electronic files often automatically changes the date on the letter, creating further confusion regarding when the termination occurred.  Third, the person who originally signed the letter may not be employed still, making it difficult to prove what was communicated to the employee at the time of termination, and by whom.

To avoid creating these unnecessary evidentiary issues, take the extra couple minutes to make a copy of the signed, dated termination letter, and put it in the employee’s personnel file.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
@HRGeniusBar &  @wagelaws

DOL ISSUES NEW FMLA REGULATIONS

On February 6, 2013 the Department of Labor’s (DOL) Wage and Hour Division (WHD) issued new regulations under the Federal Family and Medical Leave Act (FMLA). The regulations become effective on March 8, 2013.   Among other things, the regulations extend the military caregiver leave, clarify the “military exigency” rules, and further define  intermittent leave calculations.

Unfortunately, as a result employers will have to tweak their FMLA policies.  To make that task a little easier, the DOL also published a chart comparing the old FMLA regulations and the new ones.  Here’s the link to that chart:

http://www.dol.gov/whd/fmla/2013rule/comparison.htm

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

HR Tip – Save Those Voicemails

Probably every Human Resources Manager has received a voicemail from an employee advising them he is “quitting.”  Sometimes the employee even “thanks” the HR Manager and/or the company for the “opportunity,” and does not say anything negative about his employment experience.

I strongly recommend saving such voicemails from any employee the company suspects is a “litigation risk” (in their original audio format) for at least a year, and preferably two.

Why save them?  Employees often conveniently change their “stories” or recollections after quitting.  Such voicemails present compelling evidence to defeat an employee’s later claim that he was “fired” or “forced to quit”  (aka “constructive discharge”).  They are particularly useful in knocking down unemployment compensation claims and previously unreported claims of harassment.   The employee is left to “explain away” his own statements, and will not appear credible in doing so.

Why save them that long?  Under most federal and state laws, claims for discrimination, harassment and retaliation generally have to be asserted within 300 days of the alleged adverse employment action.  Retaining the voicemail for at least a year will ensure you have it available if a claim is filed.  Keeping them two years is preferable because claims under the Federal Family and Medical Leave Act (FMLA) and the Federal Fair Labor Standards Act (FLSA) can be asserted 2 (or even 3) years later.

Bottom line:  don’t hit the “delete” button, and you may “save” your case!

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
@HRGeniusBar
@wagelaws