Employee Discipline Policies

Then-New York Governor Teddy Roosevelt probably summed up politics, diplomacy, and personnel management with his line: “Speak softly and carry a big stick; you will go far.” Some suggestions:

Management is Part of the Solution, Not the Problem – In the face of reported misconduct, a personnel manager should always proceed in a manner in which he or she could take pride later. It is possible the report is false, misleading, or otherwise in error. Investigation should be fair and forthright. Unless, it’s a matter of some overt, observed threat to safety, the accused should have the opportunity to respond fully to any accusation before a decision is made on consequences.

Document, Document, Document: Document.

Policies Should Allow Discretion on Discipline – Employment contracts and workplace policies that strictly define the procedures that must be followed and the consequences that must result from specific offenses are too restrictive for anyone’s good. While policy should supply standards of conduct and rules for reporting, investigation and handling of misconduct, policy should also provide management the discretion to deal fairly with situations on a case-by-case basis.

For example, a company policy that promises only a warning for any first offense may be a problem when an employee’s first misbehavior is embezzlement or violence against another worker.

Consistent Handling of Reported Misconduct – Managers should strive to deal with similar situations similarly. If there are reasons why one employee received a harsher consequence than another for a similar offense, the reasons should be documented. See Document, Document, Document: Document section above.

Workplace discipline is never fun. It is even less so when management badly handles a matter, either too softly or too harshly. When in doubt, reach out. You usually can reach us at nearly the speed of light.

March 11, 2011

As one never gets a second chance to make a first impression, many employers make it their business to specify a dress code policy, particularly for workers who regularly greet and work with the public. Setting such standards is a proper commercial practice of course, so long as management is well-trained on fielding good faith requests for reasonable accommodation based on religious beliefs or practices. See, March 4, 2011 article, Accommodating Religion in the Workplace, Avoid the Employment Discrimination Gallows.

Of course, some companies simply require uniforms. In a business office where employees choose their daily clothing, the dress code issue should balance the level of professionalism management wishes to convey to the public with common sense. For instance, a set of standards that is on the overly restrictive, micro-management side of the scale might adversely affect morale. On the other hand, a vaguely worded policy that permits “casual” could be misread as condoning “sloppy.”

Dress code policies can cover any limitations on hair styles, jewelry, and “body art” as well as specify a higher level of professional appearance on particular occasions, for example public gatherings and presentations. It is also proper to spell out management’s option to request a clothing change in the event an employee comes to work in a style or manner out of synch with the intended standard.

For help creating workable, legal employee policies, contact us about our signature handbook and forms.

March 4, 2011

Sexual harassment rightfully gets the bulk of attention when drafting prevention and reporting policies or training employees on proper workplace conduct. However, managers should not stop there. In California, there are as many as ten other types of harassment claims that businesses must do everything reasonably possible to prevent.

Workplace “harassment” can be broadly defined as any behavior that a person would find sufficiently threatening or disturbing to affect his or her ability to perform on the job. California’s Fair Employment & Housing Act (FEHA) and related federal laws protect employees from unlawful harassment and discrimination on the basis of a worker’s age (40 years old and over), color, religious creed, disability (physical or mental), gender, medical condition, national origin, race, marital status (e.g, married, divorced), genetic profile, and sexual orientation.

Harassment comes in many shapes and sizes. For example:

• Verbal or written: Comments about a person’s appearance, personal behavior or body; jokes about a person’s religion, sexual orientation, etc.; telling rumors about a person’s personal life; threatening a person;
• Nonverbal: Looking up and down a person’s body; derogatory gestures or facial expressions; following a person;
• Physical: Threatening harmful contact (assault); impeding or blocking movement; inappropriate touching of a person or a person’s clothing;
• Visual: Posters, drawings, pictures, screensavers or emails of an offending or demeaning nature.

Under the FEHA and other employment laws, California employers can be liable for encouraging or condoning unlawful workplace harassment. Both the law and common sense dictate that a business take all reasonable precautions to prevent workplace harassment as well as quickly and fairly properly investigate and resolve any such complaint within the office.

For help with discrimination or harassment claims against your business or for any employment law related matter, please contact us.

February 25, 2011

In Being Unemployed Just Got Harder (February 16, 2011), we reported the U.S. Equal Employment Opportunity Commission’s (EEOC) impending hearing on a possible national trend of hiring only those currently employed — a choice certainly not likely to help the country’s unemployment challenges.

In a post-hearing statement, EEOC Chair Jacqueline A. Berrien stated, “Today’s meeting gave the Commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools.”

According to Helen Norton, University of Colorado School of Law, employers and staffing agencies have publicly advertised jobs in fields including electronic engineering, food service management, and real property financing with the explicit restriction that only currently employed candidates will be considered.

Assistant Secretary of Labor for Policy William Spriggs presented national employment statistics indicating that minorities, particularly African Americans and Hispanics, represent the majority of those who are unemployed. Several other panelists claimed that using current employment as a selection criteria adversely impacts women, minorities, and individuals with disabilities, and called for EEOC guidance and enforcement to address the issue.

However, others testified that actual discrimination against the unemployed is rare. Fernan R. Cepero of the Society for Human Resource Management (SHRM) claimed his organization “is unaware of a widespread practice or trend to exclude unemployed individuals from consideration for available jobs.” Cepero concluded, “Employers, in SHRM’s experience, whether operating in the currently challenging economy or in more robust times, are focused on finding the right people for the job, regardless of whether or not they are currently employed.”

While the EEOC has yet to offer any regulation as a result of the hearing, the agency clearly sees any such hiring practices in a negative light.

A full list of panelists and their testimony is available online.

February 16, 2011

A February 7, 2011 California Court of Appeal decision permits explicit written salary wage agreements for hourly workers that include overtime compensation within that set weekly amount.

In Arechiga v. Dolores Press, a former employee sued for alleged unpaid overtime. Working as a janitor, Arechiga had verbally agreed to work 11 hours a day, six days a week (a total of 66 hours per week). Thus, he asserted the company owed him overtime for the 26 hours he worked over the 40 hour/week threshold for regular pay.

However, Arechiga also entered a written agreement with the company stating he would be paid a weekly salary of $880 for his labor. The court held that California law (Labor Code section 515) does not outlaw “explicit mutual wage agreements” in which an hourly employee such as Arechiga and the employer establish a set salary that will include basic wage and overtime pay and in which the overtime component is at least one and one-half times the basic rate.

As Arechiga had a set schedule, the court found that the parties had intended to divide his $880 weekly compensation to cover all those hours, including $445.60 to cover the 40 hours of regular time (at $11.14/hour) and $434.46 to cover the 26 hours of overtime (at $16.71/hour).

The decision confirms that employers and hourly employees may negotiate for written “explicit” set salary agreements to cover work schedules that would render the worker eligible for overtime.

As the Arechiga decision carries several fine points, California businesses should proceed deliberately and with the aid of knowledgeable legal counsel in creating and entering such written agreements with any hourly worker. The risk of an inadequate agreement could be liability for additional overtime compensation that could reach back for up to four years of payroll.

February 7, 2011

As religious diversity in the American workplace increases, so does the importance of management’s understanding how to address conflicts that arise. The Equal Employment Opportunity Commission (EEOC), responsible for enforcing the federal law prohibiting discrimination in commerce has recently published a guide to help employers with the task (“Questions and Answers: Religious Discrimination in the Workplace,” January 31, 2011).

That federal law (Civil Rights Act of 1964, nicknamed “Title VII”) prohibits:

• Treating applicants or employees differently based on their religious beliefs or practices – or lack thereof – in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits (called “disparate treatment”);

• Subjecting employees to hostility, insults, or other harassment because of their religious beliefs or practices – or lack thereof – or because of the religious practices or beliefs of people with whom they associate (e.g., relatives, friends, etc.);

• Failing to seek and work out a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices if an accommodation will not impose more than a minimal cost or burden on business operations or finance; and

• Retaliating against an applicant or employee because he or she has engaged in protected activity, including the filing or voicing of a complaint over perceived religious discrimination or harassment.

The EEOC article also explains how that agency defines “religion,” specifies exceptions to Title VII’s religious provisions, and illustrates what is meant by “religious harassment” as well as some common ways to accommodate religious beliefs in the workplace.

We have also published a recent article on the subject, “Avoiding Religious Discrimination in the Workplace,” Bowles Law Report, Vol. 9, Issue 4.

If you have questions in the area, please let us know.

January 31, 2011

With an economy continuing to sputter, a company may be more keen to take on unpaid summer interns to share the workload. Yet, if a business fails to fulfill detailed laws and regulations for such training programs, this supposed “cost-cutting” measure could become an expensive litigation nightmare. Boiled down, internship programs must predominately be for the benefit of the participants rather than a profit-yielding venture for the sponsoring company.

Our January 7, 2011 article “Employer’s Guide to New 2011 Laws, Part III” addressed new Division of Labor Standards Enforcement (DLSE) guidelines for unpaid internship programs. Among the key provisions, interns may be exempt from minimum wage laws only if:

1) The intern’s training actions are similar to those of a vocational school student;

2) The training is for the benefit of the trainee;

3) The trainee does not displace regular employees, but works under close observation;

4) The company derives no immediate advantage from the activities of the trainee and on occasion its operations may actually be impeded;

5) The trainee is not necessarily entitled to a job at the completion of the training period; and

6) The employer and the trainee understand that the trainee is not entitled to wages for the time spent in training.

The DLSE directs that if a company’s intern program does not meet all of these conditions for any individual, that person is an employee subject to state and federal wage and hour laws.

For assistance in setting up a lawful, written summer internship program for your business and accompanying forms for participants, contact a knowledgeable labor law attorney.

January 7, 2011

Effective January 1, 2011, the IRS increased the accepted mileage deduction for business use of a motor vehicle from 50 cents to 51 cents per mile. Employers may deduct as a business expense the full amount of any reimbursement equal to or less than this IRS rate. However, the IRS considers reimbursement amounts in excess of the 51-cent limit “wages” that are subject to taxation.

Those who are self-employed can deduct their business miles using the standard mileage rate or by calculating actual costs. To use the standard mileage rate, it must be applied in the first year the vehicle is used for business.

There are other, lower rates for medical, moving and charitable transportation.

For example, injured California workers receiving workers’ compensation benefits can also use the IRS-prescribed 19 cent/mile rate when requesting reimbursement for miles driven to and from medical appointments, pharmacies and any other locations related to diagnosis and treatment of the job-related injury.

For further details on the rules, an employer should consult a tax lawyer or accountant. Of course, business owners planning to change their companies’ reimbursement rate should be sure to notify their employees.

January 1, 2011

An estimated 12 million people are enslaved worldwide, 50,000 in the United States every year. By far, more individuals are trafficked and made slaves today than at any time when the practice was “legal.”

The State of California has responded with the recent passage of Senate Bill 657, the “California Transparency in Supply Chains Act of 2010.” The law takes effect January 1, 2011. It will require California retailers and manufacturers to disclose their efforts to eradicate slavery from their supply chain. The law targets agriculture, mining, garment and other industries in which slave labor is most common.

In announcing the new law, Governor Schwarzenegger stated: “Human trafficking is a terrible crime that goes against basic human rights and everything our country stands for. I am proud that in California, we have enacted some of the toughest laws to punish human traffickers and protect their victims. This legislation will increase transparency, allow consumers to make better, more informed choices and motivate businesses to ensure humane practices through the supply chain.”

For more information about the law and the facts on human trafficking in California, visit Coalition to Abolish Slavery & Trafficking (CAST). CAST was a co-sponsor of the bill.

(Photo by One Eleven Photography)

January 1, 2011