Tag: employee handbook

Is Your Business Litigation Proof?

The heading of this blog is a misnomer. There is no such thing as being litigation proof. Anyone can sue your business for any reason and meritorious or not, you will still have to defend the claim.

Still, there are many important steps a business can and should take to reduce its exposure and put itself in an advantageous position in the event a lawsuit is filed. Here are two simple actions that every business, large and small, should take in order to be a little bit more secure in today’s volatile world.

1. An Updated Employee Handbook

Employee handbooks set forth company policy for all employees to follow. Handbooks are useful reference materials that employees can rely upon to guide their day to day activities. They are also evidence of a company’s practices that can be introduced in the event of a lawsuit.

As a business grows, it should be mindful that different laws will apply to it. For example, once a business employs 15 employees, that business is now subject to the provisions of the Americans with Disabilities Act (“ADA”). Once that happens, an employee handbook should be modified to include language related to the reasonable accommodations that the business will make to comply with the ADA. If an employee with a disability were to file a claim under the ADA, a company with a handbook containing reasonable accommodation language would have a stronger argument that its practice is to comply with the ADA, than a company without such a policy in its handbook.

Also, business owners must be mindful that the law is constantly changing. For example, Illinois just enacted a law that requires an employee’s existing sick leave be granted to employees not only while they are sick, but also to care for sick family members (read more about that law here – http://lgattorneys.com/illinois-employee-sick-leave-act). Illinois businesses should amend their handbooks to reflect the change or discuss the pros and cons of moving away from sick leave/vacation time to paid time off that does not differentiate between sick leave and vacation time.

2. Record Retention Policy

If a company becomes involved in litigation, regardless of the issue, there is going to be a records request for all relevant documents in anyway related to the underlying lawsuit. This often involves emails and other electronic communications.

Having a records retention policy is important for several reasons. First, it ensures that all documents are kept for the optimal amount of time to conduct business without clogging servers or storage spaces. Second, it ensures that a company isn’t holding any documents for longer than legally required. Should a business be subject to a records request, a business is required to produce the documents in its possession. A plaintiff in a suit cannot use a document against you if you do not have it (and are not legally required to have kept it). Third, there are many record retention laws specific to different areas of business. A record retention policy can make sure a business does not violate the law by getting rid of documents too soon.

It is important that the business in question follow its policy universally and not on an ad hoc basis. As long as there is not a litigation hold in place requiring a company to keep all related records, then the company is free to follow its record retention policy without inadvertently destroying evidence and leading to a claim of evidence spoliation.

By consulting with an attorney and preparing an employee handbook and records retention policy, a business can take important first steps toward avoiding litigation, or at least being better placed to withstand a lawsuit if one comes its way.

For more information about developing an employee handbook or record retention policy appropriate for your business, please contact:

Robert Cooper at:

rcooper@lgattorneys.com or 312-368-0100.

Increased Focus on Employer Policies and Handbooks

With the increasing prevalence of employees’ use of social and other electronic media, crafting appropriately narrow internal policies and employee handbook provisions to address the myriad issues that arise in connection with employees’ use of electronic media is vital.

It is widely accepted that employees should not have reasonable expectations of privacy when working on an employer’s computer since company computer systems are owned and/or provided by the company for the purpose of conducting company business. Many companies monitor employee e-mail and Internet activity, in part because employers are often liable for their employees’ actions. Even so, employers must be careful as they enforce their e-mail communications policies.

Generally speaking, the National Labor Relations Act (NLRA) protects non-governmental employees engaged in activities to influence change in the workplace (so called “protected concerted activity”) – even if those employees are not union members and the activity has no connection to union activity or a labor union. Thus, the NLRA protects the rights of all private sector employees to join together, with or without a union, to improve their wages and working conditions.

Over the past few years, the General Counsel of the NLRB has issued complaints against employers that have discriminatorily enforced otherwise valid communication policies. In one case, the NLRB issued a complaint against a distribution company that had in place a rule prohibiting all non-business e-mail communications. However, the employer failed to consistently enforce the rule, allowing non-business e-mail and only disciplining employees when they used e-mail for union solicitations. More recently, the NLRB found that an employer selectively enforced its electronic communications policy in a case where it terminated an employee who e-mailed a petition to the company’s Board of Directors. The petition sought development of a method for employees to directly submit workplace concerns. The evidence in this case showed, contrary to the policy, that the employer’s e-mail policy permitted reasonable personal use of the company’s e-mail system and that employees frequently used their computers for personal purposes. Thus, the employer’s claim that the employee had improperly used its e-mail proved to be a losing argument.

While these few examples of e-mail policy enforcement issues may appear to only apply to unionized companies, this issue may also affect non-unionized companies.

As many are aware, the NLRB has also dealt several blows to employers in recent years regarding employer social media policies and how such policies violated employees’ rights to “concerted activity.” In June of this year, however, in a ‘win’ for an employer, an administrative law judge (ALJ) considered the legality of a restaurant chain’s social media policy which provided that employees not post information regarding the company, their jobs or other employees which could lead to morale issues in the workplace or detrimentally affect the company’s business. The policy also urged employees to make clear that the views they post were the employee’s personal views and not the company’s and requested that employees put a disclaimer on their social media pages stating that the views expressed were the employee’s alone and not the views of the employer. The policy also stated that no employee could use any words, logos or other marks that would infringe upon the intellectual property rights of the company. The ALJ in this case found that the policy when read in its entirety did not forbid employees from engaging in rights protected by the NLRA, but only urged them to be considerate of and civil toward others when putting such items on the Internet. The ALJ also interpreted provisions of the rule precluding use of the company logo in a manner that infringed on the company’s intellectual property rights as simply protecting the company’s legal rights concerning its logo, and did not implicate the employees’ rights under the NLRA.

Workplace policies regarding non-disparagement and confidentiality have also recently come under attack. For example, an employee of Quicken Loans signed an employment contract with broad confidentiality and non-disparagement provisions wherein she agreed to hold “in the strictest of confidence” any “nonpublic information relating to or regarding the company’s business, personnel, operations or affairs.” She also agreed not to “publicly criticize, ridicule, disparage or defame the company or its products, services, policies, directors, officers, shareholders or employees” in “any written or oral statement or image” including emails or social media posting. After leaving Quicken Loans for a competitor, Quicken Loans sued its former employee for allegedly violating certain provisions of her employment contract. The employee filed charges with the NLRB, and the NLRB upheld an administrative law judge’s ruling that Quicken Loans’ confidentiality clause violated the NLRA by restricting employees from discussing compensation or job conditions with co-workers or union organizers. The NLRB also rescinded the non-disparagement provision finding that “within certain limits, employees are allowed to criticize their employer and its products” as part of their rights under the NLRA. Similarly, employer policies that prohibit employees from complaining to the media or requiring employees to obtain permission from management prior to speaking with reporters are unlikely to withstand legal scrutiny.

The prevalent use of technology in the workplace and increased scrutiny by the NLRB on all employees’ rights to engage in protected concerted activity dictates that every employer have policies in place which set forth appropriate and enforceable rules with respect to employees’ use of company’s computer systems, e-mail and the Internet. It is important to review technology and communication policies periodically, adapt the policies so they evolve as technology changes and consistently enforce the policies.

To discuss your business’s internal policies, employee handbook or employment agreements, please contact:

Jonathan M. Weis at: jweis@lgattorneys.com or 312-368-0100

or

Mitchell S. Chaban at: mchaban@lgattorneys.com or 312-368-0100

New Illinois Law Provides Greater Protections for Pregnant Employees

In August 2014, Governor Pat Quinn signed into law Public Act 98-1050, which is commonly referred to as the “Pregnancy Workers Fairness Act” (the “Act”). The Act, which becomes effective January 1, 2015, provides greater protections for pregnant workers, requiring all Illinois employers to provide reasonable accommodations to any employee or job applicant for pregnancy and child-birth related conditions, unless doing so would impose an undue hardship on the employer.

The Act amends the Illinois Human Rights Act to include pregnancy as a protected class. “Pregnancy” is defined as “pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.” Employers are now required to provide pregnant employees with “reasonable accommodations”—the same type of accommodations employers are already required to provide to workers with temporary disabilities. Reasonable accommodations may include light duty, assistance with manual labor, and additional or extended bathroom breaks.  An employer may only refuse a requested accommodation if the employer can demonstrate that the accommodation presents an undue hardship on its ordinary business operations. The Act also prohibits discrimination in the hiring and employment of pregnant workers and those affected by a medical or common condition related to pregnancy or childbirth.

Employers must also post a notice regarding employees’ rights under the Act in a conspicuous location or include this information in the employer’s employee handbook.

To discuss any questions you may have about the effect of this new law on your business, please contact:

Kristen E. O’Neill at:

(312) 368-0100 / koneill@lgattorneys.com

Attention Employers and Employment Agencies: Criminal Records and Criminal Histories of Prospective Employees Off-Limits at Application Stage!

The Job Opportunities for Qualified Applicants Act (the “Act”), a new Illinois statute, will become effective January 1, 2015. The Act restricts employers and employment agencies from inquiring about or requiring the disclosure of an employment applicant’s criminal record or criminal history at the application stage, i.e., until the employer or employment agency has determined the applicant is qualified for the position and notified the applicant that he or she has been selected for an interview or, if there is not an interview, until after a conditional offer of employment is made to the applicant.

The Act defines an employer as any person or private entity that has 15 or more employees in the current or preceding year and employment agencies as any person or entity regularly undertaking, with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer.

The prohibition on inquiring into an applicant’s criminal record or criminal history at the application stage does not apply for positions where: (i) employers are required to exclude applicants with certain criminal convictions from employment due to federal or state law; (ii) a standard fidelity bond or an equivalent bond is required and an applicant’s conviction of one or more specified criminal offenses would disqualify the applicant from obtaining a bond; or (iii) employers employ individuals licensed under the Emergency Medical Services Systems Act.

Employers and employment agencies are allowed to notify applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular position due to federal or state law, or the employer’s policy. Therefore, if an employer has a company policy which would disqualify an applicant from being hired based on specific offenses, the employer may notify applicants in writing of that fact.

Civil penalties that apply to employers or employment agencies that violate the Act range from a warning for the first violation to a civil penalty of up to $1,500 for every 30 days that passes without the employer’s or employment agency’s compliance with the Act.

In addition to the new rules under the Act, the ban against employers and employment agencies inquiring into or using an arrest record or expunged criminal history as a basis to refuse to hire remains in effect.

To review your business’ employment application and procedures or to review your business’ policies regarding specific offenses which may disqualify an applicant, or develop a notice letter to potential employees, please contact:

Morris R. Saunders at:

(312) 368-0100 / msaunders@lgattorneys.com

or

Mitchell S. Chaban at:

(312) 368-0100 / mchaban@lgattorneys.com

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