1.         Failure to document unsatisfactory job performance. 

2.         Failure to terminate bad workers before it is too late. 

3.         Failure to enforce the company’s harassment policy. 

4.         Failure to give a reason for employment termination. 

Part I covered why it is important to document bad performance and why it is not a good idea to keep poor performers on your payroll.  In this installment, learn why it is imperative to deal with harassment claims properly and quickly and why employers should provide a reason for termination.

Mistake #3:    Failure to enforce the company’s harassment policy. 

It is important to follow the company’s harassment policy and procedures for dealing with harassment claims.  Respond quickly and effectively to any complaints of harassment or discrimination, whether by co-workers, customers, or other third parties.  For example, even employers with the best policies and training programs on investigating workplace conduct and harassment can be held liable if they fail to investigate a harassment complaint.  If the employer does not take corrective action when discovering the failure, these types of actions can appear to a jury as “utter indifference” on the part of the employer and consequently lead to an award of punitive damages. It is therefore important to take prompt and effective action.

Mistake #4:    Failure to give a reason for employment termination.

Make sure you follow the company’s rules and be consistent – discipline and treat all employees the same for all infractions.  Be honest and upfront with the employee about the reason(s) you are letting him/her go.  If the employer does not give an explanation when it terminates employment, employees will try to figure out why they were fired and likely will presume the reason was discriminatory.  At the time of termination, have a witness present, such as another supervisor or manager.  If appropriate, you can give the employee a chance to explain his/her side of the story, but you do not need to change your termination decision.

To learn more about training offered by Greenberg Traurig that educates employers and managers about HR policies outlined in this post series, please visit www.gttrainingworkshop.com or email info@gttrainingworkshop.com

1.         Failure to document unsatisfactory job performance. 

2.         Failure to terminate bad workers before it is too late. 

3.         Failure to enforce the company’s harassment policy. 

4.         Failure to give a reason for employment termination. 

In this Part I, learn why it is important to have written records of poor performance and why it is not a good idea to keep poor performers on your payroll.

Mistake #1:    Failure to document unsatisfactory job performance. 

Not surprisingly, most supervisors do not like to discipline or write up workers.  When poor performance becomes an issue, however, the employee’s records do not reflect prior warnings or dissatisfactory performance.   Employers also invite trouble when an employee receives a raise or positive review and is subsequently fired for bad performance.   Employers likewise face risk when an employee who has been terminated for misconduct or low performance is given a glowing recommendation.   Documenting instances of discipline and giving written warnings are the best way to avoid claims of discrimination.  Enforce all rules uniformly and on a non-discriminatory basis.

Mistake #2:    Failure to terminate bad workers before it is too late.

Many supervisors hope that their poor workers will improve over time.  However, keeping bad employees on the payroll despite repeated warnings opens employers up to claims of unfair treatment and lack of timely action.   Moreover, poor workers who receive many chances to improve are often the most likely to sue when they are finally fired.  Terminate a bad worker as soon as it is apparent that he/she is not likely to improve, and maintain appropriate documentation regarding any prior infractions.

Watch for the next installment to learn the dos and don’ts when managing and disciplining your employees.

Among other things, the Q&A document offers examples of accommodations that may be appropriate for these conditions. For example:

• An employee with cancer may need to leave work for doctors’ appointments or treatment and recovery; to take periodic breaks or a private area to rest or take medication; to modify office temperature; or to use their work telephone to call medical professionals.
• An employee with diabetes may need a private area to test blood sugar or administer insulin injections; a place to rest to normalize blood sugar; breaks to eat, drink, take medication or test blood sugar; and to take leave for treatment, recuperation, or training on managing diabetes.
• An employee with epilepsy may include breaks to take medication; a private area to rest after a seizure; a rubber mat or carpet to cushion a fall; and/or to rely on other workers for rides to meetings and other work related events.
• An employee with an intellectual disability may need assistance during the application process, such as having someone read or interpret application materials; training or detailed instructions to do the job; the ability to listen to tape recorded instructions or use detailed schedules for competing tasks; and use of a job coach.

As with other disabilities, all the above disabilities also may require accommodations such as permission to work from home; modified work schedules; reallocation of marginal tasks to another employee; or possible reassignment to a vacant position if the employee is no longer able to perform her current job due to the disability.

Chair of the EEOC, Jacqueline A. Barren, explained that the new guidelines are meant to assist employers in understanding the ADA’s application to cancer, diabetes, epilepsy, and intellectual disabilities, because “nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability,” and many of those individuals are seeking employment or are already in the workplace. Employers should be aware of this guidance, and prepared to treat employees with these conditions as they treat other individuals protected by the ADA.

Massachusetts Medical Marijuana Act

In November of 2012, Massachusetts voters approved a ballot question which allows qualifying patients with certain medical conditions to obtain and use medical marijuana. The medical marijuana law, titled The Massachusetts Act for the Humanitarian Medical Use of Marijuana (the “Medical Marijuana Act”) became effective on January 1, 2013. The law eliminates state criminal and civil penalties for the medical use of marijuana by qualifying patients who have been diagnosed with a debilitating medical condition.

The Massachusetts Department of Public Health (“DPH”) has issued regulations setting forth procedures with respect to the registration of certifying physicians, as well as the registration of qualifying patients and marijuana dispensaries. Under the regulations, a process is established for individuals to obtain a registration card, which is an identification card issued by the DPH used to verify that the individual has received written certification from a physician, and is exempt from state criminal and civil penalties relating to the use of marijuana.

ENDA is certainly not new legislation.  ENDA, in one form or another, has been introduced in every Congress, except one, since 1994.  In 1996, ENDA failed to pass the Senate by only one vote.   In 2007, the first transgender-inclusive version of the bill was introduced.  That same year, a modified bill excluding transgender protections passed the House but did not come up for vote before the Senate.  Since 2007, all versions of ENDA have included prohibitions on discrimination based on gender identity; however, no transgender-inclusive version of ENDA has ever passed the House or Senate.

The question then becomes, will ENDA fare any better in the 113^th Congress?  Even ENDA’s strongest supporters acknowledge that the bill currently has no clear path to passage in the House.  Still, support for the bill, and cultural attitudes towards LGBT individuals as a whole, has likely never been better.  Recent polls have shown that a majority of Americans are in favor of laws protecting LGBT workers from employment discrimination.  Additionally, 87 percent of Fortune 500 companies already maintain policies prohibiting discrimination based on sexual orientation, and over 50 percent of those companies likewise prohibit discrimination based on gender identity.  This support has carried over into the legislative arena.  21 states and the District of Columbia now prohibit employment discrimination based on sexual orientation.  Of those 21 states, all but 5 also prohibit discrimination based on gender identity.

It is all but certain that if ENDA passes both chambers of Congress, President Obama will sign the bill.  We plan to watch the bill closely and keep you posted on its developments.

Most businesses possess confidential information or trade secrets that need to be safe-guarded, or intellectual property, equipment, or processes that set them apart from their competition. Many companies choose to protect this information using “restrictive covenants” – agreements in which employees promise not to compete with the business in the future, lure away its employees or customers and/or divulge its confidential information.

Recently, a new bill (A3970) was introduced to the New Jersey State Assembly which would invalidate certain restrictive covenants in order to address New Jersey’s high rate of unemployment. Pursuant to A3970, non-compete, non-solicitation and non-disclosure provisions would be unenforceable with respect to individuals who are eligible for New Jersey unemployment insurance benefits. (Generally, unemployment benefits are available to workers who are laid off or discharged for reasons other than gross misconduct).

The proposed measure is intended to limit barriers to employment in an attempt to reduce New Jersey’s above-average unemployment rate (9.3 percent compared to 7.6 percent nationwide). The bill’s sponsors, Peter Barnes, Joseph Egan and Wayne DeAngelo, hope that A3970 will allow unemployed workers to get back to work (and off unemployment benefits) sooner.

There may, however, be unintended consequences if this bill is passed.  For example, employers would be more likely to contest workers’ eligibility for unemployment benefits, in order to ensure that their restrictive covenants remained enforceable. The proposed bill might also discourage companies from establishing or expanding their businesses in New Jersey due to the inability to adequately protect their confidential information. In addition, companies may move high-level employees out of New Jersey into states where post-employment covenants are enforceable. The proposed legislation also creates incentives for employees who resign to argue that they were “constructively discharged,” or even to perform poorly in order to trigger a discharge that would relieve them of their post-employment obligations.

If enacted, this legislation would not be retroactive and would only apply to agreements entered into after the bill takes effect. Given the uncertainty raised by this very broad bill, employers should consider entering into restrictive covenants with high-level employees sooner rather than later. If the bill is passed, employers may also want to consider taking measures to ensure that key terminated employees are not deemed eligible for unemployment compensation, such as a structured severance payment covering the term of the restrictive covenant. We will continue to monitor the bill and will provide updates as they become available.

Plaintiff Linda Eagle (“Eagle”) co-founded Edcomm, a banking education company, in 1987. In 2009, with encouragement from Edcomm’s co-founder, Eagle created a LinkedIn account using her Edcomm e-mail address to develop business for Edcomm. Edcomm subsequently urged employees to create LinkedIn accounts and to become involved in the account content, though it never required them to do so. Eagle gave her LinkedIn password to fellow Edcomm colleagues to enable them to respond to inquiries and update her LinkedIn account on her behalf.

Another company purchased Edcomm, and terminated Eagle’s employment on June 20, 2011. Immediately after Eagle’s separation, Edcomm employees accessed Eagle’s LinkedIn account, changed the password, and effectively locked Eagle out of her account. Thereafter, Eagle was unable to access her LinkedIn account. She then sued Edcomm, alleging several state law tort claims, including unauthorized use of name, invasion of privacy by misappropriation of identity, and misappropriation of publicity.

The Court sided with Eagle, finding that she owned the LinkedIn account, had an exclusive right to control it, and had been denied the ability to use the account for business activities. However, because Eagle could not establish a single contract, client, or even prospective client that she was unable to procure due to Edcomm denying her access to the account, the Court did not award Eagle any damages.

Because there is such a prevalence of social media in the course of everyday life, it is no surprise that social media is becoming increasingly prevalent in business.  As a result, employers must establish and enforce clear policies and ownership agreements regarding social media accounts used for business purposes. Here, the Eagle Court noted that Edcomm had an “intense interest” in ownership of LinkedIn accounts such as the one at issue in this case, yet had not adopted a clear policy addressing the subject. Effective policies and agreements should clearly state that the employer owns the account, and set forth procedures for returning login and password information if an employee is terminated.

• Assembly Bill (A.B.) No. 10 amends the minimum wage laws to introduce an incremental increase over the next three years from the current $8.00 per hour to $9.25 by 2016.  Starting in 2017 the minimum wage would adjust each year to maintain employees’ purchasing power.
• A.B. No. 35 claims to clarify existing law regarding employment performed by a person who holds a favorable decision granting deferred action under the federal Deferred Action for Childhood Arrivals program.  Such persons would be eligible for unemployment compensation, to the extent that they otherwise would qualify.
• A.B. No. 326 amends California’s occupational safety and health reporting requirements.  Employers currently must make complete reports of every occupational injury or illness incident.  The new law would require every employer to make an immediate report of any hospitalization or fatality incident that occurs within 30 days of a work-related incident, even if the hospitalization or fatality occurred after the report of work-related incident.
• A.B. No. 332 requires employers engaged in the production of adult films to adopt safety and sexual health procedures on the filming set to protect employees from exposure to blood and other potentially infectious material.  Specific requirements include offering hepatitis B vaccinations, requiring the use of condoms during the filming of specified sexual acts, and ensuring proper disposal of contaminated sharp devices.
• A.B. No. 442 expands the penalty and restitution provisions of the Labor Code relating to violations of the statutes and administrative orders regarding the payment of wages.  Employers cited for violations could be subject to payments of additional liquidated damages to employees.

• Senate Bill (S.B.) No. 168 amends the law to clarify successor liability that farm labor contractors owe for the wages of any predecessor farm labor contractor.  If certain conditions are met, farm labor contractors would be liable for wages and penalties owed and may face misdemeanor charges in certain circumstances.
• S.B. No. 270 amends existing law to require agencies participating in the Joint Enforcement Strike Force on the Underground Economy to coordinate their law enforcement efforts and more efficiently share information, to the extent possible.  The Strike Force is intended to combat tax violations and cash-based employment.
• S.B. No. 390 amends the law so that it is a crime punished as either a felony or misdemeanor for an employer to fail to remit withholdings required by state, local or federal law from an employee’s wages.  Current law makes it a crime to fail to remit agreed-upon withholdings for health and welfare funds, pension funds, and various benefit plans.
•  S.B. No. 400 amends current law to extend anti-discrimination employment protections to victims of stalking.  Current law only protects employees who take time off from work to attend to issues arising from domestic violence or sexual assault.

However, the legality of the internship relationship is subject to increasing scrutiny. In 2010 the Department of Labor (“DOL”) set forth new guidance to help determine whether interns must be paid minimum wage and overtime under the Fair Labor Standards Act (“FLSA”) for the services provided to “for-profit” private sector employers. Since the introduction of the DOL’s guidance there has undoubtedly been a surge in wage and hour lawsuits filed on behalf of unpaid interns to seek wages. The Charlie Rose show has reportedly settled for $250,000 in back wages to 189 interns. Notably, the emerging trend in litigation is not limited to unpaid interns. In New York, a former Intern/Assistant Football Coach filed suit against Hamilton College’s Athletics Department alleging that he was paid the same monthly stipend regardless of the number of hours he worked, in violation of the FLSA’s minimum wage and overtime requirements. The plaintiff is representing a class of forty former interns, and is seeking unpaid overtime wages, liquidated damages, interest, and attorneys’ fees.

The potential costs of internship litigation are daunting; however, internships are still a valuable resource for employers and interns. Accordingly, employers should structure their internship programs to comply with DOL guidance. Pre-planning is critical. Questions regarding the applicability of the FLSA’s minimum wage and overtime requirements should be assessed using the DOL’s promulgated criteria. A private sector employer should be able to answer the following questions before classifying an internship as exempt from FLSA wage and hour requirements:

• Is the employment experience primarily for the benefit of the intern and not the employer?
• Is the internship comparable to training offered in an educational environment?
• Does the intern displace a regular employee?
• Does the intern work closely under close supervision of existing staff?
• Is the intern not necessarily entitled to a job at the conclusion of the internship?
• Does the employer derive immediate advantage from the activities of the intern?
• Does the employer make clear to the intern, from the outset, that the internship is unpaid?

After an employer makes a final determination regarding the classification of the internship, it may be helpful to take some additional steps. Before hiring any interns, employers may want to consult legal counsel to draft a written agreement setting forth the goals, duties, and objectives of the internship program. The agreement should explicitly outline any compensation or academic credit that will be awarded. Employers should keep diligent records of the internship program, including time records of interns. If an employer has an existing internship program, it may want to hire legal counsel to conduct an audit of the program to determine compliance with the FLSA. Further, it may be helpful to train the supervising staff regarding the roles of interns. Ultimately, employers should be diligent in their creation and execution of internship programs to minimize liability.