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COMPLIANCE

A staffer hands you a two-week notice: What’s next?

By Paul Edwards It’s 4:30 on a Friday afternoon, and one of your employees knocks on your door asking to come in. They’re avoiding eye contact, they’re fidgety, nervous… This can’t be good news. You imagine accidentally shredded payroll reports, stolen laptops full of client information, or something equally catastrophic. But when the employee tells you what’s going on, it’s the last thing you expected: They’re putting in their 2 weeks’ notice. Now what do you do? Before you can decide, you’ll need to know what your options are. In any at-will employment arrangement, you can let an employee go at any time for any reason that’s not unlawful (although there are factors you should consider first), and the employee can also quit at any time, with notice or not. At-will employment… . . . read more

COMPLIANCE

What to do if an employee defies your mandatory vaccination policy

Mandatory vaccination policies have become a touchstone issue for employers in just about every industry. And all of this begs a question of crucial importance: What should you do when employees defy your law office’s mandatory vaccination policy? Your choices: Terminate them immediately Accommodate them immediately None of the above The answer is C, none of the above. It’s not that termination and accommodation aren’t valid options; it’s the word “immediately” that makes them the wrong choice. The 2 things to do when employees refuse mandatory vaccination Here’s what you should do if one of your employees refuses to comply with your mandatory vaccination policy. Step 1: Find Out Why They Won’t Get Vaccinated Before the pandemic, mandatory vaccination policies were rare and limited to sensitive sectors like health care… . . . read more

EMPLOYMENT LAW UPDATE

Religious discrimination and pitfalls for diversity efforts

By Mike O’Brien Religious discrimination An Asian-American engineer who worked for a municipal utility in Stockton, Calif., filed a lawsuit claiming that city officials belonging to the Church of Jesus Christ of Latter-Day Saints (the “Church”) sought to recruit, hire, and promote members of their own faith and that he was denied a promotion because he was a member of the Laotian Folk Religion. The trial court dismissed the lawsuit before trial, but a California appellate court reversed, ruling there was sufficient evidence of discriminatory motive for the religious bias claim to proceed to trial. The appellate court came to this conclusion even though the municipal utility employs a number of high-level employees who are not members of the Church and the position was ultimately filled by a person of… . . . read more

EMPLOYMENT LAW UPDATE

Updates and more updates about vaccine mandates

By Mike O’Brien Given the flurry of recent news reports surrounding COVID vaccine requirements, an update about mandates seems, well, mandatory. Like our readers, the authors of these updates look forward to a happier time, when the most pressing issues in HR law are not all somehow pandemic-related. In the meantime, we will do our best to keep you up to date. OSHA sends White House its vaccine mandate rule for review On Oct. 12, the Occupational Safety and Health Administration (OSHA) sent the White House its highly-anticipated rule implementing the mandatory vaccine requirements President Biden announced in September for businesses with 100 or more employees. The exact content of the rule (an Emergency Temporary Standard, or ETS) is not publicly known, but the basic parameters would require covered employers… . . . read more

TERMINATION

Firing documentation that makes sense

By Lynne Curry As an expert witness (qualified in court in management best practices, HR, and workplace issues), I’m often handed documentation by attorneys or employers who ask, “What do you think? Will it convince a regulatory agency or jury this employee needed to be fired?” My most frequent answer: “This documentation doesn’t make the case.” Here’s why. It doesn’t convince Many supervisors confuse their opinions with facts. Their documentation consists of statements such as “he didn’t show initiative,” “she demonstrates a poor attitude,” “he doesn’t play well with others.” While those statements provide the supervisor’s view, they fail to convince. Well-written documentation provides the facts that will lead a third-party to reach the conclusion the supervisor holds. For example, “When Tish came to the staff meeting 45 minutes late,… . . . read more

COMPLIANCE

5 things to do when implementing a vaccine passport policy at your law office

Like many other employers, you might have been undecided about whether to mandate that your employees get the COVID-19 vaccine. However, now that the FDA has fully approved a coronavirus vaccine, namely, the Pfizer BioNTech, you are on much stronger legal ground in requiring that employees get vaccinated. One strategy that may work, especially for offices that aren’t administering the vaccine for their own employees, is to implement a vaccine passport, i.e., a policy requiring personnel to present proof of their vaccination status to gain entry to the workplace. What is a vaccine passport? A “vaccine passport” is a commonly accepted means of showing that a person has received the COVID-19 vaccine. Some foreign governments are creating official, uniform cards that individuals must display. (Go to this link for a… . . . read more

Employment Law Update

Making faces doesn’t count as retaliation

By Mike O’Brien Not every negative consequence amounts to retaliation In asserting a claim for retaliation, an employee must prove he or she suffered a “materially adverse action.” But that probably doesn’t include someone “making faces” at you. In Fisher v. Bilfinger Industrial Services Inc., the employee alleged that his supervisor retaliated against him by (among other things) “making faces at him.” The First Circuit Court wasn’t impressed. The court noted that “adverse employment actions” are things like “discharges, demotions, refusals to hire, refusals to promote, and reprimands.” “Making Faces,” on the other hand, amounts to “a frivolous claim that does not implicate Title VII.” In the litigation world, we call this a “bench slap.” You can read the full decision here. More limits on non-competes . . . eventually On July… . . . read more

EMPLOYMENT LAW UPDATE

Disability discrimination and lookism in the workplace

By Mike O’Brien EEOC sues a work placement agency on behalf of disabled workers for disability discrimination The EEOC announced this week that it has filed suit under the Americans with Disabilities Act (ADA) against a Hawaii work placement agency for disabled workers. The suit alleges that the agency refused to provide sign language interpreters for deaf employees, despite repeated requests by several deaf individuals. The workers had asked for interpreters to be present at staff meetings where matters such as work safety, protocols, and assignments were discussed. Despite these requests for accommodation, the agency declined to provide interpreters and instead gave the deaf workers written notes and handouts, or asked a deaf employee to interpret for other deaf employees. The EEOC asserts that these accommodations were ineffective and that as a… . . . read more

COMPLIANCE

Beware of privacy pitfalls when remotely monitoring telecommuters

Before the pandemic, 80 percent of U.S. employees worked primarily from an external workplace; today, only 21 percent do. Coaxing employees to return to the workplace will be an uphill battle, with recent surveys, including one from Pew Research, suggesting that 54 percent of those who are currently working remotely want to continue spending at least some of their working hours at home. In short, as with other employers, law offices need to adjust to the realities of telecommuting. Among the biggest challenges will be maintaining productivity. One potential solution is to deploy technologies that monitor employees’ whereabouts and use of computer and other work equipment to verify that employees who work remotely are actually doing their jobs. Unfortunately, doing this exposes your office to liability risks under privacy and… . . . read more

TOOL

Tool: Model Lab Employee Remote Monitoring of Telecommuters Policy

Letting employees telecommute poses significant operational and management challenges to employers, not the least of which is ensuring that employees are actually doing their jobs and meeting expected productivity standards when working from home. Software, apps and other monitoring technology can go a long way in meeting this goal; but it can also get you into hot water under privacy and other laws. The best way to manage privacy liability risk is to include specific language in your telecommuting policies and arrangements that provides for monitoring. The idea is to let employees know exactly what you’re going to do and how, and ensure they don’t have reasonable expectations in the information collected. Here’s some model language you can adapt for your own use.


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