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HR adVISoR
may/JUnE 2009
5
© 2009 Thomson Reuters. This publication was created to provide you with accurate and authoritative informationconcerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed topractice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice andthis publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you shouldseek the services of a competent attorney or other professional. For authorization to photocopy, please contact theCopyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax (978) 646-8600or West’s Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the spe-cic material involved, the number of copies you wish to distribute and the purpose or format of the use.
aVoidinG employment-relatedlitiGation in 2009 and beyond:14 preVentatiVe measures eVery employer should Complete
E. Jason tremblay
During the current economicdownturn, all companies are try-ing to save money. At the sametime, however, employers arefacing a signicant increase inemployment-related litigation. Inlarge part, this increase has beenthe result of lawsuits and claimsled by disgruntled employeeswho are terminated for legitimatereasons as companies reduce their overhead expenses. Therefore,now more than ever, to protectthemselves from costly litigation,employers must be extra vigilantnot to cut corners on personnel-related matters and to ensure thatthey are taking the steps necessaryto comply with existing laws.Fortunately, there are a number of easy and inexpensive preventa-tive measures that employers cantake now to protect themselvesfrom potential liability they mayface this year and beyond. Whilethese preventative measures maynot prevent the litigation, byimplementing these measures acompany will better position it-self in the event of litigation. Thisarticle outlines fourteen easy stepsthat companies can take to reduceemployment-related liability andcomply with existing labor andemployment laws.
1. reVieW and update theemployee handbooK.
Most companies have recognizedthat adopting a well-drafted em-ployee handbook can protect themfrom a wide range of employee-related problems. However, oncedrafted, these same companiesfrequently fail to update their handbooks. As a result, the hand-book, which once complied withthe then-existing laws, becomesoutdated, is inconsistent with theactual policies of the company or,worse, is contrary to existing em-ployment laws. Accordingly, likeall business documents, employeehandbooks need to be reviewedat least once a year and revised,as necessary, to keep up with thelatest policies and laws.While there are hundreds of policies that companies can in-clude in their employee hand-book, any handbook shouldcontain certain provisions thatare carefully worded in “plainEnglish.” Among others, it isstrongly recommended that eachhandbook contain the followingpolicies: (1) “at-will” employ-ment policy, (2) equal employ-ment opportunity policy, (3) anti-harassment policy, (4) reasonableaccommodation policy, (5) work-place violence prevention policy,(6) discipline and terminationpolicy, (7) immigration policy, (8)trade secrets/condentiality/non-disclosure policy, (9) technologyuse policy, (10) drug and alcoholpolicy and (11) hours of work(including FLSA safe harbor lan-guage) policy. Companies shouldroutinely review their handbooksand determine if changes need tobe made to the current policies so
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E. JASON TREMBLAY is a Partner in Arnstein & Lehr LLP’s LitigationDepartment and Labor & Employment Practice Group in the Chicago ofce.He has extensive experience representing employers in a broad range of personnel and employment-related matters and regularly represents employers in a wide variety of employment-related lawsuits. He can be reached at ejtremblay@arnstein.comor (312) 876-6676.
HR adVISoR
may/JUnE 2009
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© 2009 Thomson Reuters. This publication was created to provide you with accurate and authoritative informationconcerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed topractice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice andthis publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you shouldseek the services of a competent attorney or other professional. For authorization to photocopy, please contact theCopyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax (978) 646-8600or West’s Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the spe-cic material involved, the number of copies you wish to distribute and the purpose or format of the use.
aVoIdIng EmPLoymEnt-RELatEd LItIgatIon In 2009
Equal Employment OpportunityCommission. With the increasein complaints being led, courtshave fortunately detailed exactlywhat steps employers can take toprotect themselves from harass-ment and discrimination claims.The threshold step in minimiz-ing a company from harassmentliability is to develop a compre-hensive written policy prohibitingall forms of harassment, discrimi-nation and retaliation. At a mini-mum, the policy should set forth:(1) a clear explanation of the pro-hibited conduct, (2) a statementthat harassment is illegal, (3) aclearly described complaint pro-cess that provides accessible av-enues of communication (and theability to bypass a harassing super-visor), (4) a complaint process thatprovides a prompt, thorough andimpartial investigation, and (5) as-surances that employees will notbe retaliated against for makingtruthful complaints of harassmentor cooperating in an investiga-tion of harassment. In addition,employees should be periodicallyreminded of the policy and thereporting avenues. Without anup-to-date harassment policy, anemployer is giving away valuablelegal defenses that it easily couldassert in response to harassmentand discrimination lawsuits.Finally, like employee hand-books, employers must remember that harassment policies should bewritten in “plain English” so thatthey are easily understood. Courtshave recently ruled against em-ployers when the reporting proce-dures outlined in policy are con-fusing, outdated or not tailoredto the workforce to which theyapply. In short, employers mustgenerally tailor their harassmentpolicies to the sophistication andIn this regard, it is importantto note that the IRS Form I-9,which is required to be com-pleted for each newly-hired em-ployee to verify their eligibilityto work in the United States, hasrecently been modied. The revi-sions omit, as well as add, certaindocuments that employers canuse to verify the new employee’seligibility to work in the UnitedStates. A company’s failure to uti-lize the new Form I-9 could re-sult in signicant nes and penal-ties. Therefore, companies shouldverify that they are using the newForm I-9 for new hires or whenre-verications are required.As well, employment appli-cations need to be periodicallyreviewed and updated. For ex-ample, questions that disclose anapplicant’s age (such as date of birth or even dates attended highschool) should be omitted. And,in Illinois and some other states,if the application requires the ap-plicant to disclose criminal con-victions, it must include languagethat applicants are not requiredto disclose sealed or expungedrecords. Finally, be particularlycareful if the company has em-ployees in several states. Withdifferent states having their ownrules on pre-employment inqui-ries, employers must make certainthat their applications and other pre-hire documents conform tothe particular state laws wherethey hire employees.
3. reVieW and update anti-harassment poliCy.
Unfortunately, harassment anddiscrimination complaints appear to be a cost of doing business thesedays. In fact, 2008 saw one of thelargest increases in discriminationlawsuits according to the U.S.that they can be used as a shieldagainst lawsuits led by unhappyemployees. Companies shouldalso avoid the temptation of sav-ing costs by using “cookie cut-ter” handbooks or policies passeddown from other companies or third-party vendors, as this canlead to the same problems as hav-ing an outdated handbook.In this regard, pursuant to therecent regulations promulgatedby the U.S. Department of La-bor, any employer that maintainsan employee handbook and whois governed by the Family andMedical Leave Act (“FMLA”)must provide a written notice of FMLA rights in the handbook.And, as detailed more fully below,care must be taken to ensure thatany FMLA policy comports withthe most recent regulations.Finally, to the extent that anemployee handbook is updated,companies must remember toredistribute the handbook andobtain acknowledgment formsfrom all employees that they haveread, reviewed and agreed to theterms and conditions of the newhandbook.
2. reVieW and update neW employee hire paCKaGe.
Most companies have new em-ployees review and execute a largenumber of acknowledgments of policies, agreements, statementsand memoranda during their ini-tial orientation. In many cases,however, the “new hire” docu-ments were adopted years be-fore and often are out-of-date, or worse, conict with the employ-ee handbook or other policies. Asa result, employers should ensurethat any “new hire” packet is up-to-date.
HR adVISoR
may/JUnE 2009
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© 2009 Thomson Reuters. This publication was created to provide you with accurate and authoritative informationconcerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed topractice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice andthis publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you shouldseek the services of a competent attorney or other professional. For authorization to photocopy, please contact theCopyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax (978) 646-8600or West’s Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the spe-cic material involved, the number of copies you wish to distribute and the purpose or format of the use.
aVoIdIng EmPLoymEnt-RELatEd LItIgatIon In 2009
age of their employees. Therefore,“canned” anti-harassment policiesdownloaded from the internet or copied from another company canbe problematic in litigation.
4. reVise and update flma poliCy and forms.
The new FMLA regulationstook effect on January 16, 2009.Among other modications, thenew regulations change some of the notice requirements, medicalcertication standards and meth-ods of accounting for FMLA leavetime. They also provide guidanceon the two new types of FMLAleave, specically, “qualifying ex-igency” and “military caregiver”leave. While a full discussion of the changes to the FMLA is be- yond the scope of this article,there are steps that employersmust take now in order to complywith the updated FMLA.First, all employers mustpromptly update the FMLApolicy in their employee hand-book. If they are governed by theFMLA and do not have the poli-cy in their handbook, an updatedFMLA policy must be drafted andinserted into the handbook. If thecompany does not maintain anemployee handbook, but is oth-erwise governed by the FMLA,then a stand-alone FMLA policymust be updated and distributedto the workforce.Second, update the company’sFMLA notice forms, such as theNotice of Eligibility; Rights andResponsibilities Notice; and Des-ignation Notice. The new regu-lations provide at least four newmandatory notices (WH Publi-cation 1420, WH-381 (Parts A& B), WH-381, WH-382) thatemployers must issue during theFMLA process. All these formsare available to download fromthe U.S. Department of Labor Web site (http://www.dol.gov/esa/WHD/fmla/index.htm). Thepenalty for failing to provide anyof these required notices is poten-tially draconian, especially if theemployee is able to prove that heor she incurred actual harm.Third, post the new FMLAposter in a conspicuous locationvisible to both employees andapplicants. And, if a majority of your workforce is comprised of workers who are not literate inEnglish, the FMLA poster mustbe provided in the language inwhich the employees are literate.Fourth, review other employ-ee handbook policies, such as paidleave, bonus policies and perfectattendance awards, to ensure theycomport and are consistent withthe new FMLA regulations.Fifth, update the company’smedical certication forms (WH-380-E and WH-380-F, also avail-able on-line) to comport with thenew regulations and modify thecertication and re-certicationprocedures to reect the com-pany’s ability to directly contactthe employee’s medical provider to authenticate the certicationform or to obtain clarication.Finally, train supervisors, man-agers and individuals responsiblefor administering FMLA leavesabout the new FMLA militaryfamily leaves, as well as the newregulations. The changes to theFMLA are signicant, so theseindividuals need to be adequatelyprepared to respond to FMLAleave requests without runningafoul of the new law.
5. Comply With the neW ada amendments aCt.
On January 1, 2009, the ADAAmendments Act (“ADAAA”)took effect. Among other things,the ADAAA expanded the de-nition of “disability” and widelybroadened the class of employeeswho are protected by the Ameri-cans with Disabilities Act. In ef-fect, the ADAAA makes it mucheasier to bring disability discrimi-nation claims and harder for em-ployers to defeat those claims. As aresult, employers must take someproactive steps to protect them-selves from what will likely be asignicant increase in disability-related lawsuits.First, employers need to reviewtheir disability/reasonable accom-modation policies and practicesand revise them, especially if thepolicies were drafted before theADAAA became law. For ex-ample, because the denitionof “disability” has been widelybroadened, a policy that dened“disability” prior to the ADAAAmust be updated.Second, human resource per-sonnel need to be aware of the newchanges so that they can properlydeal with reasonable accommoda-tion requests. The crucial inquiryfor employers now will not be somuch whether the employee isdisabled, but rather whether theemployer can reasonably accom-modate the employee.Third, in light of the ADAAA,it is important that employersnow document reasonable ac-commodation requests and whatthe company is doing to accom-modate the request (e.g., the in-teractive process).Fourth, employers that haverecently denied reasonable ac-commodation requests to current
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