Do You Know What Your Employees Are Talking About In Public? How To Avoid The Inadvertent Disclosure of Your Company’s Confidential Information

Imagine this scenario:  Your top sales representative is traveling for work.  He has a briefcase with your company’s logo on it.  He decides to stop at a restaurant at the airport before catching his flight.  While at the restaurant, he makes several calls to update various people about how his sales meetings went and he identifies each client with whom he met.  He shares a plethora of information in each call, including detailed pricing discussions, push-backs by the clients, and product concerns.  He also announces that he chose to not disclose a critical piece of news regarding possible trade issues with another country.  Of course, all of these discussions occur within an ear-shot of numerous people, including, unbeknownst to your sales representative, a competitor. Read more ›

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Posted in Labor & Employment

Three Workplace Shootings in 24 Hours: Now Is the Time to Take Action

Workplace violence is one of the most troubling issues keeping HR professionals and in-house counsel up at night – and with good reason.  Just last week alone, there were three workplace shootings in a span of 24 hours. In 2018, workplace shootings have occurred coast to coast, in rural, suburban and urban settings.  And, according to OSHA, approximately two million employees report being victims of workplace violence each year. Read more ›

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Posted in Labor & Employment

Good Intentions May Not Be Enough: The Hidden Dangers of “Maternity Leave” Policies

Many employers go above and beyond any legal requirements in providing paid or unpaid leave benefits to employees to bond with their child.  So what could be bad about that?  Well, check your employee handbook. Do you have a maternity leave policy?  Do you have a paid leave policy that provides greater benefits to moms than dads, or to primary caregivers over secondary caregivers?  If so, beware. Read more ›

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Posted in Labor & Employment

An Apple a Day: Why Building Positive Employee Relations Can Keep the Outsiders Away

An obvious key to maintaining good employee relations is to keep employees satisfied with their work and their work environment.  While it is, of course, impossible to keep all of your employees happy and satisfied at all times, it is important to consider the reasons behind employee dissatisfaction and the steps which can be taken to erase that dissatisfaction so that employees will not feel they must contact an outsider, such as a government agency or worker advocacy group, to represent them on the job.  Most causes of employee dissatisfaction can be eliminated if they are only recognized and treated quickly. Read more ›

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Posted in Labor & Employment

Updated FMLA Forms with the Class Syllabus

On September 4, 2018, the U.S. Department of Labor Wage and Hour Division rolled out “updated” FMLA compliance forms and, despite containing no substantive changes, if your company uses the model FMLA forms, these new forms should be utilized starting now. The forms for Notice of Eligibility, Designation, and Certifications for the various covered Serious Health Conditions are available at this link on the DOL’s website. You have the new FMLA forms if the “expires” date in the upper right-hand corner reads “8/31/2021.”  Do not be distracted by the “revised” date at the bottom of the page; the 2015, 2013 and even 2009 dates simply reflect that the content of the FMLA forms has not changed in quite some time. Read more ›

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Posted in Wage and Hour

Fight Heats Up Over Sick Pay in Texas Cities

San Antonio City Council approved a Paid Sick Leave Ordinance on Thursday, August 16, 2018, which allows workers to accrue up to 64 hours of paid sick leave each year. This law largely tracks the recent Austin sick pay ordinance, passed in February 2018. The highlights of the San Antonio legislation are:

  • Under the ordinance, employers are required to grant employees one hour of paid sick leave for every 30 hours worked, subject to yearly caps. For employees with 15 or fewer employees, the cap would be six (6) days per year. For larger employers, the cap would be eight (8) days of paid sick time. Employees may use this leave for physical or mental illness, preventative care or to care for a family member. Paid sick time becomes available for an employee’s use as soon as it accrues.
  • Most employers will have to comply with the Ordinance beginning August 1, 2019. Employers with five employees or fewer do not need to comply until August 2021.
  • Employers who already provide more generous sick leave policies than those proscribed by the ordinance are not required to make any changes.
  • The law only applies to persons who work within the city limits of San Antonio for at least 80 hours per calendar year.

The ordinance was passed outright after supporters gathered more than 144,000 signatures, which would have been enough to force an election by popular vote. Notwithstanding the recent passage of the ordinance in San Antonio, a state appellate court blocked the Austin ordinance from taking effect on Friday, August 17. The appeal was from a trial court decision in Austin which had allowed the ordinance to take effect. It is expected that a similar lawsuit to block the San Antonio ordinance will also be filed. State lawmakers have also promised to pass legislation in the 2019 session that would declare such statutes invalid and preempted by state law. This will be an important test of separation of powers between the more conservative state government and more liberal cities like Austin.

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Posted in Labor & Employment, Wage and Hour

Five Tips for Protecting Your Company’s Trade Secrets

Protecting your trade secrets and proprietary information is a vital part of your business. Every company needs to have policies and agreements in place to prevent employees from stealing property, and wrongfully soliciting your employees and customers when they leave to work for a competitor. Equally important, you must ensure that newly hired employees understand their own obligations to past employers and do not take actions that may unwittingly expose your company to liability.

  1. When hiring a new employee (especially in management or sales), consider including language in the offer letter affirming that the employee has disclosed any restrictive covenants in effect from prior employers, and acknowledging that he/she will not bring any confidential documents, data, or information from previous employers to the company. Such language may protect the company from being sued if a new employee fails to disclose a restrictive covenant, or otherwise engages in a breach of duties owed to a prior employer.
  2. If you are considering hiring a group of employees from a competitor, negotiate with each one separately wherever possible. In many states, employees (especially managers) owe a duty of loyalty to their employer. Acting as a go between or actively soliciting for a competitor while still employed with the prior company could raise legal issues. If you are looking to hire a team or group, it is best to hire the point person first, then once aboard that person can set out to recruit the remaining employees to come to your company (assuming that employee has no contractual restrictions on solicitation).
  3. Develop a protocol for ensuring that high level departing employees do not download or otherwise misappropriate proprietary information. When notified of a resignation: (1) Conduct a review of work email for transmittal of information to personal email accounts; (2) Identify any suspicious use of removable USB devices; and (3) Conduct an exit interview that consists of asking the employee to affirm that all property has been returned, including all electronic devices and passwords.
  4. Handbook policies on confidentiality and the return of company property are appropriate, but a breach of a policy is not actionable, and does not entitle the company to injunctive relief (i.e. an order requiring compliance). Consider requiring a confidentiality agreement for any employees who have access to important company data or property that could be harmful if disclosed to a competitor, and you may want back if not returned.
  5. For key personnel, you may need more than a confidentiality agreement to protect the company’s interests. In those cases, consider the use of a non-compete and/or non-solicitation agreement (which can be coupled with the confidentiality portion into one document). A non-compete provision restricts the employee from working for a competitor for a certain period of time in a defined geographic area. Such covenants must be reasonable, and narrowly tailored to protect the client’s interests. A non-solicitation provision does not restrict the employee from working for a competitor, but restricts certain activities for that competitor, usually soliciting company customers or employees for a period of time. Like a non-compete provision, a non-solicitation covenant must be reasonable. For example, the restriction should only apply to customers with whom the employee actually had contact or access to confidential information, as opposed to a restriction from contacting all of the company’s customers.

Non-compete litigation is state specific and the laws can vary widely from state to state. For example, Texas allows reasonable restraints on competition, while California (and recently Massachusetts) outlaw such agreements. It is advisable to have any agreements reviewed for enforceability in the states where such agreements are likely to be enforced.

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Posted in Labor & Employment

New Bill is Preview of What Might Happen if Congress Flips in November

Many pollsters are predicting Congress could switch from Republican to Democratic control in November. It has been quite some time since we have seen any significant employment legislation from the Congress, but a newly invigorated Democrat Congress might get busy and start passing laws. A recent bill introduced by Senator Elizabeth Warren (D-MA) is a preview of what that legislation might look like next year.

Warren and fellow Democrat Senators Chris Murphy (CT) and Ron Wyden (OR) have introduced the “Workplace Mobility Act,” which would outlaw non-compete agreements. Specifically, the bill would require a posting advising employees that such agreements are unlawful, and provide for a private cause of action and fines against employers who enforce or threaten to enforce a restriction on competition. The law would allow agreements to protect trade secrets as defined under the U.S. Code, but is silent as to whether restrictions on soliciting customers or employees would be prohibited. The bill narrowly defines a non-compete agreement as one which limits an employee from performing similar work within a specific geographic area or for a specified period of time. The full text of the bill can be found here.

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Should Companies Change Harassment Training in the Wake of #Metoo?

One of the benefits of the recent #Metoo movement is that companies in every industry are rethinking not only employment policies, but their approach to training and organizational culture. I was recently interviewed for an article on how companies should adapt their training to address the cultural impact of the #Metoo movement. That article can be found here.

The dramatic return of sexual harassment cases to the forefront of pop culture and employment litigation should be a wake-up call to employers who rely on outdated and clunky harassment training videos or other boilerplate programs. Ask yourself, are you really having a dialogue with your employees about company expectations, how those expectations are applied in your particular workplace culture, and how to address concerns if they should arise? Admittedly, it gets hard to have effective and engaging training with thousands of employees in large organizations. Quality trainers are not cheap, and many companies don’t have this expertise in house. But, the expense of a few lawsuits will quickly tip the scales in favor of training over litigation.

Here are five tips to shift your company’s anti-harassment training into top gear and effectively address these challenging times:

  1. Unless you have employees in isolated, far flung locations, ditch the impersonal videos and computer-based training or at least alternate between live training and a boilerplate refresher. People need to see and hear someone talk about these issues to know the company takes it seriously, and so employees have the confidence to make a complaint. Create a training team made up of both internal and external participants to create an engaging, practical training program, keeping in mind that longer is not better. Aim for one hour or less.
  2. Bringing in an outside speaker is a good idea, especially if you don’t have a dynamic expert in your organization. That said, someone from HR needs to be a part of every training session to put a name with a face for employees to know and trust to handle these issues. It is also helpful for HR to listen to questions and get a sense of what issues may be present in the organization or might require follow up.
  3. Conduct separate training for managers and rank-and-file employees. Part of the message is the same, but part of it should be different. Employees will not be comfortable asking questions or talking about problems in front of their supervisor. Similarly, managers won’t be comfortable asking questions about handling an issue if the employee with the issue is in the room.
  4. Upper management must demonstrate commitment to the training program, and that starts with executives committing their own time to attend the same training as all other members of management.
  5. Update training every two to three years. Even the best programs and speakers can get stale. Having different speakers explain things differently can be helpful to avoid the boredom effect for long-term employees who have been through training multiple times.
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How Should Employers Respond to #MeToo?

The #MeToo movement started as a wave of press coverage exposing long-suppressed stories of sexual harassment and exploitation in Hollywood. That movement, however, has now gone far beyond Harvey Weinstein. High-profile cases involving judges, news anchors, politicians, and CEOs have become commonplace in recent months. Many companies are now receiving complaints of misconduct from years in the past, which are a challenge to investigate.  Unlike a court of law, which typically does not hear cases beyond the statute of limitations (which can be as short as 300 days in Texas), the negative press associated with these cases has no end date. Moreover, ignoring allegations of serious misconduct has consequences, both in the press and in the eyes of stakeholders, customers, and employees. The concern is that if an employee did this once, he or she has probably done it to someone else, and is maybe doing it currently to others who are not brave enough to face the backlash of making a complaint.

So, what is an employer supposed to do when it receives a sexual harassment complaint from years ago involving an executive or high-performing employee? Legally, the employee’s claims may be time-barred; the employee may not even work for the company any longer. Should you terminate an executive based on an uncorroborated allegation that is stale and will never even rise to the level of litigation? The answer, like in most legal questions, is “it depends.”

First, any allegation of sexual harassment (or any unlawful conduct for that matter) should result in an investigation, even if the conduct is old. If the accused is a serial offender, there could be other victims working for the company who have ripe claims sitting out there waiting to sue. Moreover, barring intervention, the accused may not realize there is or has ever been a problem, and may continue to do the same things that gave rise to the first complaint. Simply, the company should investigate to discover whether the old complaint is an isolated problem that is unlikely to reoccur, or involves something inherent in the employee’s behavior that poses a risk of recurrence.

Once the investigation is done, the company has to decide upon an appropriate response. Although the media would have you believe that every offender must be terminated, no matter how small or old the offense, those risks are largely overblown. I am a believer that employers should distinguish between honest mistakes and intentional misconduct. The Harvey Weinsteins of the world cannot be tolerated, and if that type of behavior is discovered, no matter how old, termination is appropriate. That said, employers should not panic nor overreact in responding to claims of harassment. Not every complaint over an inappropriate joke or consensual relationship gone bad requires termination. The following tips are helpful in deciding upon an appropriate response.

  1. How old is the complaint? What is the employee’s explanation for waiting so long to bring the complaint?
  2. Can the company corroborate any of the allegations? Have there been any similar complaints from anyone else?
  3. What was the accused’s response to the allegation? Is he or she believable?
  4. Is the allegation consistent with the accused’s reputation or character?
  5. Is the accused in a position where there is a high risk of future claims of misconduct?

As a legal matter, the most simplistic and conservative approach to a harassment complaint is to minimize risk. Continuing to employ someone accused of harassment is almost always going to be more risky than terminating the employee. But, legal risk is not the only deciding factor in the real world. Perhaps the accused is a key employee or a good person whom you simply believe was wrongfully accused. The best decision may not be the path of least risk. Obviously, every employer has to make that judgment call on a case by case basis, but there is no question that this decision-making process is now much more complicated in the era of social media and the #MeToo movement.

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Posted in Uncategorized
About HR Headaches
HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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