Archive for the 'Employment Policies' Category

Sit back, fire one up and collect unemployment . . . But only if you have a card.

We interrupt our normal program for a special report on Medical Marijuana in Michigan. How’s that for an alliteration? It has been a while since we have discussed the Michigan Medical Marihuana Act, MCL 333.26421 et. seq (MMMA) and how it relates to employment. To see the last time we did, which was back in 2011, click here. And you might want to do that because we are going to talk about that court’s opinion. But first, what’s new?

Well, here is the question presented by this most recent challenge (Braska v Challenge Manufacturing) to an employee (actually three employees) termination for testing positive for marijuana (and by the way, I am going to spell marijuana with a “j” even though the Michigan Legislature insisted on spelling it with an “h”, what a bunch of squares): whether an employee who possesses a registration identification card is disqualified from receiving unemployment benefits after the employee has been terminated for failing to pass a drug test?

I know you can’t wait until the end of this post for the answer, so drum roll please, . . . Seems the answer is . . . . the employee does get unemployment benefits.

What? How can that be? After all, the U.S. District Court for the Western District of Michigan, Southern Division held that a private employer could fire an employee who had a card and who tested positive during a drug test conducted by his employer. You will recall, because you read it right here, that Judge Jonker stated: “The fundamental problem with Plaintiff’s case is that the MMMA does not regulate private employment. Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.”  Judge Jonker went on to note that the employee’s public policy argument would “confer on medical marijuana patients, rights, to this point conferred only on a select group of people based on immutable characteristics like race, sex and religion.”  Judge Jonker stated:  “Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marijuana users.” You can see the opinion here. Plus, the Michigan unemployment statute disqualifies people for benefits under § 29(1)(m) for “testing positive on a drug test, if the test was administered in a nondiscriminatory manner.” Isn’t that what happened here? The employees tested positive on a drug test administered in a nondiscriminatory manner.

So what’s up with that? How come an employer has the right to fire the employee, the statute disqualifies them from getting benefits, but the employee can still get unemployment compensation?

Here is what the Michigan Court of Appeals said: First, the court noted that the MMMA has a broad preemption provision which says:

 … ‘[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marijuana as provided for by this act.’

So that disqualifier in the unemployment statute, yeah, it does not matter if the employee has a card and is not otherwise violating the MMMA by, for example, “being under the influence at work” or “using at work.”

Second, the court noted that the MMMA says that people with cards who are using marijuana in accordance with the MMMA:

… ‘shall not’ . . . (2) be denied any ‘right’ or ‘privilege,’ ‘including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau. . . .

And the court held:

 Applying this definition to the present case, we conclude that denial of unemployment benefits under § 29(1)(m) constitutes a ‘penalty’ under the MMMA that was imposed upon claimants for their medical use of marijuana.

So, the summary is that the MMMA trumps the unemployment act and denying unemployment benefits just because of a positive test for someone who properly has a card is a penalty imposed by the state in violation of the MMMA.

But what about the Casias case? Well the court dealt with that too. First they basically said Casias is not binding on the Michigan Court of Appeals because this is a question of Michigan law and Casias was a federal case. Then the court noted:

Moreover, unlike in Casias, in this case, we are not presented with the issue of whether the MMMA’s immunity clause applies in cases involving action solely by private employers.The issue raised in this case is not whether the employers violated the MMMA because they terminated claimants. The issue is whether, in denying unemployment benefits, the MCAC—a state actor—imposed a penalty upon claimants that ran afoul of the MMMA’s broad immunity clause. When an individual is denied unemployment benefits, the employer’s conduct is not at issue, but rather, the denial involves state action. See Vander Laan v Mulder, 178 Mich App 172, 176; 443 NW2d 491 (1989).

You see, ultimately the court decided that determining who gets or does not get unemployment is up to the state and not the employer and that makes Casias different.

So what does this mean for you the next time you fire someone for testing positive for marijuana? Well one thing is certain, if the employee has a medical marijuana card that was properly issued and you can’t prove the employee was using at work or under the influence at work, they are going to get unemployment benefits.

Oh, and one more thing. There are some other issues here too. Like how would this court have come down in the Casias case? Would they have agreed with Judge Jonker or gone the other way? We don’t know. We can guess, but I am not going to do that in this post. I’m not going to do it for a couple or reasons, first, we don’t know because even though the Court addressed the Casias case, that issue, can an employer fire an employee with a medical marijuana card, was not in front of them to decide. And, second, this may not be the final word on this issue. No word yet, if the state will appeal this decision to the Michigan Supreme Court. So keep your eyes open and we will too. And don’t panic, . . . yet.

Workplace Bullying: Let’s talk about it.

Special thanks to Carly Zagaroli, who helped me write this post.

Ever have an employee complain that the boss or a co-worker is constantly breathing down his neck and ridicules his every move? Did it get to the point that this boss or co-worker was tormenting the employee on a daily basis? Is this behavior affecting the employee’s work? If so, you’ve got some workplace bullying going on. No, I did not make that up.  The concept of bullying has moved from the playground to the workplace.  We all know what bullying is on the playground, but exactly what is it in the workplace?

According to the Workplace Bullying Institute, “workplace bullying” is repeated, health-harming mistreatment of one or more persons by one or more perpetrators that takes one or more of the following forms: verbal abuse; conduct which is threatening, humiliating or intimidating; work interference, which prevents work from getting done; and/or exploitation of a known psychological or physical vulnerability.

As of today, there is not one single state or federal law that specifically prohibits “bullying”. Unless an employee can prove he or she was bullied for being a member of a protected class (race, color, religion, sex and national origin) he most likely does not have a cause of action. In fact, only ten states currently have “healthy workplace” bills introduced to battle bullying. While it is certainly hard for a bill to become law these days http://www.schooltube.com/video/89a42a6866404f4baab7/Im-Just-a-Bill it is not impossible.  And anyone who reads my blog knows how I feel about Congress making unnecessary laws.   http://zomichiganemploymentlaw.wnj.com/?p=403

So, what does this mean for employers of bullied employees? It means two things

You can do nothing and wait for Congress to act or wait for one of your employees to sue you for harassment or worse yet, find yourself in a workplace situation that turns into actual violence.  Or you can put a policy in place that deals with bullying now, before it becomes an issue.  Which do I think is the way to go?  Take a guess?

If you don’t want to chance  an employee turning bullying into a harassment claim or find yourself dealing with a workplace violence incident or letting some Congressperson tell you how to run your company, write a policy that prohibits workplace bullying.  That way, the employee knows what resources are available and that there are consequences for the perpetrator. You might also get ahead of the game with regards to any future legislation from Congress. It’s a win-win for all.

If you want to hear more on the topic, I’ll be presenting “Workplace Violence & Bullying” at the Michigan Society for Human Resource Management conference that runs from October 6th through the 9th at The DeVos Place Convention Center in Grand Rapids.

WHAT A WAY TO END THE YEAR!

Over the course of this year I have written a lot about social media and labor law.  A couple of those posts have had to do with, as I put it, “gnashing of teeth” over employers requiring employees or applicants for employment to provide them with private passwords to social media accounts.  You can read those posts here and here.

Well, the gnashing of teeth is over here in Michigan.  On Friday Governor Snyder signed into law House Bill 5523.  This new law prohibits an employer or educational institution from requiring an employee or a student or an applicant to turn over a private social media password in order to get or keep a job or spot in a school.  I read somewhere, I can’t remember where, that this bill was a solution looking for a problem.  I’m inclined to agree.  I represent all kinds of clients all over this state, big and small, and I don’t know of a single one ever requiring that an employee or a candidate for employment turn over his or her Facebook password to get or keep a job.  But, the legislature and the Governor obviously thought it was important, so we now have Public Act 478 of 2012.

As I mentioned in April, the Act is pretty short.  It prohibits: “employers and educational institutions from requiring certain individuals to disclose information that allows access to certain social networking accounts; to prohibit employers and educational institutions from taking certain actions for failure to disclose information that allows access to certain social networking accounts; and to provide remedies.”  Section 3 of the Act says:

Sec. 3. An employer shall not do any of the following:

(a) Request an employee or an applicant for employment to disclose access information associated with the employee’s or applicant’s social networking account.

(b) Discharge, discipline, fail to hire, or otherwise discriminate against an employee or applicant for employment for failure to disclose access information associated with the employee’s or applicant’s social networking account.

So there you go, the very last law signed by the Governor in 2012.

2013 can’t get here fast enough.

Opportunities Missed

We don’t do this very often, but today we have a guest blogger.  Andrea Bernard is highly respected and talented partner at WNJ.  She spends a good deal of her time doing employment litigation.  You can read more about her at the end of this post or you can find Andrea’s bio here.  This post first appeared on our sister blog at Ahead of the Curve.

Every day, in state and federal courts throughout Michigan, companies are sued by plaintiffs who allege that their current or former employer discriminated against them because of a “protected characteristic” (age, sex, race, religion, handicap, etc.); retaliated against them for some “protected activity;” failed to honor their protected rights under a state or federal statute (e.g., FMLA); wrongfully discharged them or otherwise breached a contract of some sort; etc., etc.  It seems at times as though the list could go on indefinitely, and is limited only by the creativity of the plaintiffs’ bar.  And, every day, employers miss the opportunity to potentially limit their exposure to these myriad claims with a simple clause that can be included in an application for employment, an employment contract, or appropriate new hire paperwork: a contractual limitations period.

Every claim, cause of action, or lawsuit that can be filed against an employer is subject to a “statute of limitations.”  This is a legal deadline by which a plaintiff must file his or her lawsuit, or lose it forever.  Some statutes of limitation are long (e.g., claims for breach of contract in Michigan are subject to a six year statute of limitations).  Others are short (e.g., claims under the Michigan Whistleblower Protection Act must be filed within 90 days after the alleged retaliation occurs).  In between, statutes range from 300 days (to file a charge of discrimination with the EEOC, a mandatory administrative precursor to a Title VII claim in federal court) to three years (to file a claim of discrimination under Michigan’s Elliot Larsen Civil Rights Act).  Just keeping track of the various statutes can seem like a full time job some days!  But, in most cases, these statutory limitations periods can be adjusted by written agreement to a single, enforceable limitation period for all claims.  Federal courts in Michigan apply a “reasonableness” test to the agreed limitation period, holding that the time must still provide the employee “sufficient opportunity to investigate and file an action” and must not “work a practical abrogation” of the employee’s rights.  Michigan state courts will enforce a contractual limitation period unless some other traditional contract defense, such as fraud, duress, or waiver applies.  In most instances, however, courts have ruled that a six-month contractual limitation period is reasonable and enforceable.

As with all “rules” there are exceptions.  For example, at least one federal court in Michigan recently ruled that a contractual limitation period was not effective to bar claims filed by the EEOC on behalf of an employee, and did not prevent the intervenor employee’s participation in the lawsuit that the EEOC filed.  EEOC v. Ranir, 2012 WL 381339 (Feb 6, 2012).  Some federal courts have also held that waivers under the FLSA must be approved by the Department of Labor or a federal court to be enforceable.  And, of course, a claim that is filed within the six-month agreement would not be barred.  But in that instance, a primary objective of having the shortened period – preventing stale claims long after the employee has left and potential evidence and witnesses gone – is satisfied nonetheless.  So, although not a “silver bullet” to kill all claims, an employer can effectively limit its exposure for many claims for the cost of less than a silver bullet.

Andrea is a litigator who, since 1993, has represented manufacturers, contractors, financial institutions and others involved in employment, commercial and construction disputes. Always open to a new challenge, Andrea learned at a young age how to assert her position and negotiate solutions. “Growing up number 8 in a family of 11 children played a large role in forming my personality and my competitive nature. Long before I was born, my parents adopted a policy of not interfering in disputes among the kids. Left to our own devices, we kids solved a few of our disputes with fist fights, but more often with diplomacy. I learned very early how to hold my own in either forum,” she says. Andrea also serves as the firm’s Associate General Counsel.

DON’T LET SENATORS WRITE OVERLY BROAD LAWS THAT LIMIT WHAT EMPLOYERS CAN DO!

According to yesterday’s online version of — ready for this — Computerworld (Yes, I actually found a website called Computerworld yesterday, even though I can barely make my e-mail work),   U.S. Senators Richard Blumenthal and Charles E. Schumer posted an open letter on Monday to the EEOC and the DOL. What, you might ask, are Senators Blumenthal and Schumer upset about?  Seems a growing number of employers are asking, well not really asking so much as demanding, that applicants provide their personal passwords to social media sites like Facebook and Google + as part of the interview process.

According to Computerworld, Senator Schumer said:

“Before this disturbing practice becomes widespread, we must have an immediate investigation into whether the practice violates federal law. I’m confident the investigation will show it does. Facebook agrees, and I’m sure most Americans agree, that employers have no business asking for your Facebook password.”

You can read the entire article here: http://www.computerworld.com/s/article/9225578/Senators_call_for_probe_of_employers_seeking_Facebook_info

So does it violate federal or, for that matter, state law to ask for passwords?  You can make a pretty good argument that it does. Under Michigan law, for example, it is illegal to ask questions that either directly or indirectly elicit information about membership in a protected category.

Facebook posts and “walls” tend to have a bunch of stuff that leads to information about protected categories, like how many kids you have, if you are married or what clubs you belong to. You can’t ask those questions, so the argument goes, so you can’t ask for my password to a site that has that information on it. That, I’m pretty sure, is what the EEOC will say to the Senators.

So, indirectly at least, you can make the argument that asking for the passwords may lead to information employers are not entitled to have. But that is not the only reason why employers are . . . how should we put this . . .  ill advised to demand these passwords.

The real reason is twofold:

First, what information (that is not illegal for an employer to have) do you really think you are going to find on Facebook? Are you going to find stuff that is actually related to a candidate’s ability to do his or her job? Does it really matter that Candidate A has a picture of herself with a beer in her hand? Does that mean that she can’t be a good computer programmer?  I don’t think so. I mean, who of us hasn’t . . .  Well, let’s not go there.

But second, and more importantly, asking for the password to a site like Facebook might lead to reenacting scenes from Platoon with Charlie Sheen.

I know you’re thinking I’ve lost my mind. I haven’t, I’m using an illustration. You have all seen the commercials: You start out being unhappy with your cable TV and end up having Charlie Sheen shooting at you with a crossbow from behind the ficus. I’m going to borrow that logic to show how really uncalled for it is for employers to demand passwords to private sites that are not likely to lead to useful information anyway:

When employers do ill-advised things, the press finds out and writes inflammatory stories.

When the press writes inflammatory stories, the public becomes outraged.

When the public becomes outraged, Senators become outraged.

When Senators become outraged, they write to the EEOC and hold hearings.

And when Senators write to the EEOC and hold hearings, they write overly broad laws that limit what employers can do.

Don’t let Senators write overly broad laws that limit what employers can do!

Don’t believe this can happen here? Sure it can. There are at least 70 bills pending in the current Congress that deal with online privacy or security in one way or another, from the Senate’s USA PATRIOT Act Improvements Act of 2011 to the House’s Do Not Track Me Online Act.  Most of these bills would have just faded away.  Not now.  Senators are pounding their fists on tables in outrage.

And if one of these bills does get passed and signed by the President, you can bet that it won’t just limit an employer’s right to ask for passwords. It may do things like prohibit monitoring of work computers. Or it may go even further.  So, don’t let Senators write overly broad laws that limit what employers can do.  Don’t ask for things you don’t need anyway.

BE CAREFUL WHAT YOU WISH FOR . . . 2 Simple Things You Need to Do to Make Sure You Get the Best Candidate or Protect Yourself if You Don’t.

I read an interesting article in Crain’s Detroit Business this morning.  Seems the auto industry is having some trouble finding qualified engineers to come to work in Southeast Michigan.  According to Crain’s, “Thousands of new jobs for Southeast Michigan were announced last week during the North American International Auto Show as part of expansions planned by automakers and suppliers.  But recruiting top engineers and others to fill those jobs remains a challenge.”  You can see the full article here.  Now why on earth, with an unemployment rate that still tops 10 percent, are auto suppliers having trouble finding talent?  Seems, according to Crain’s, that “The region and automotive industry also suffers from an image problem . . . .”

That, of course, means that some employers —  not my clients, of course, but some employers — are desperate to hire talent.  And when employers are desperate to hire talent sometimes they let good hiring practices fall by the wayside. And when that happens, employers end up with employees who may not be a very good fit. And employees who may not be a very good fit tend to be the source of problems.  So, I am going to give you two things that I think you should always do when hiring anybody.

1.  Reference checks.  I have seen this happen in the past, and it always causes trouble.  Your HR department is in a bind because you need to get someone on board now.  So you interview a candidate in with a really good résumé but he or she conveniently forgets to provide any references. Or worse yet, the candidate does provide references, or at least the name of the last employer, but no one calls to check.  Two months later, you find out you have an employee  who can’t come to work or does not get along with anyone, or does not have the necessary skills.  You might have found some of this out if you had called the  last employer or the one before that.  Or you might not have. I understand that some employers have policies about telling you stuff, but you would be surprised what people will tell you once you get them talking on the phone.  Besides, what have you got to lose? Call the references.

By the way, candidates won’t provide references or sign a release, DON’T HIRE THEM. People who won’t give you permission to speak to prior employers usually have something to hide.

There are two things to remember here. First, use common sense. Some applicants may be reluctant to have you speak with a current employer. If they do not receive an offer from your company, the inquiry could jeopardize the relationship with their current employer and therefore, you may want to honor the request.  Second, people who have done bad things for a previous employer can change, but they usually don’t.  At any rate, you are going to want to know.

That leads us to other kinds of “background” checks.  Remember, if you are using an outside agency to do this sort of thing – call references, check credit history, conduct criminal background checks, etc.  – you may have to comply with the Fair Credit Reporting Act. It would be a good idea to call us before you start doing any of that.  And one more thing on criminal background checks:  The EEOC does not like them.  In fact, in its first multi-million dollar settlement of 2012, Pepsi agreed to pay $3.13 million and provide job offers and training to resolve an EEOC charge alleging that Pepsi’s criminal background check policy discriminated against African‑American applicants.  You can see the EEOC announcement here.  So be careful if you are going to use them, and again, give us a call so we can help you put a policy in place that will keep you out of trouble.

2.  Job Applications.  You have one, right?  Make sure every candidate fills one out.  Completely.  Sounds stupid, right?  Well it is not.  I know some people think that asking an applicant to fill out a job application, particularly an applicant with a résumé, is a really nice way to consume 15 or 20 minutes while you’re trying to figure out where the first interview is.  In fact, asking employees to completely fill out your job application can be a really effective way to protect you from hiring a less-than-desirable candidate.  Make sure that every question is answered and that the job application is signed and dated by the applicant. “See résumé” should never be a sufficient answer.

Now that we’ve decided that every applicant is going to fill out the entire job application, answering all of the questions and signing and dating it, you should take a close look at your application to make sure it has a couple of things.  First of all, if you are an at-will employer, make sure your job application has a statement reaffirming the at-will status of any employment relationship for the applicant.  Something like the following will work:

I understand and agree that my employment can be terminated with or without cause and with or without notice at any time at the option of either me or the company.  I understand that no employee of the company has the authority to enter into any agreement for employment for any specified period of time or to make any agreement contrary to the foregoing.

You also want to make sure your job application has is a statement that affirms that the answers provided by the applicant to each of the questions you asked are true and that the applicant understands that he or she can be terminated or denied employment if false statements are made.  You might want to consider something like the following:

I affirm that all of the information contained on this job application is true and complete and that any falsification, misrepresentation or omission herein may result in refusal of, or immediate dismissal from, employment.

This paragraph protects you in a couple of ways.  It gives you an easy way to deny employment to an applicant who lies to you on the job application.  Second, and equally important, it might provide a limit to damages should you, at a later date, have to fire an employee and then discover that he or she made a misrepresentation on the job application.  Without getting into a lot of detail, this is called the after-acquired-evidence doctrine and it can limit your damages significantly should you be sued by someone who lied to you. I know this from experience.

Another way to potentially limit your exposure to litigation is to put a paragraph in the job application that shortens the time during which an employee can bring a lawsuit against you. A statute of limitations sets out how long a person has to file suit.  In Michigan and in many other states, people can agree to a shorter period of time.  In Michigan, it can be as short as six months.  A paragraph like this in your job application should suffice:

I agree that I will not commence any action or suit relating to my employment with the company (or termination of the employment) more than 180 days after the employment action at issue, and I agree to waive any statute of limitations to the contrary. I understand that this means that even if the law would give me the right to wait a longer time to make a claim, I am waiving that right, and any claims not brought within 180 days of the action at issue will be barred.

You should make sure that this paragraph stands out from the rest of the application by using bold print or requiring that the paragraph be initialed separately.

These two simple things may keep you out of a lot of trouble.

Zo’s EMPLOYEE HANDBOOK PART VII. AND THAT’S IT! Or Two Policies in a single post.

In this very last installment of Zo’s employee handbook you get two policies for the price of one.  Well, not really two policies, but two pages for your handbook.  The first actually is a policy,  our solicitation and distribution of literature policy.  I know you are asking, do we really need this one?  Well we can argue about it one way or another, but I’m going to put it in anyway, just because.  So here you go, the last policy:

SOLICITATION

AND

DISTRIBUTION OF LITERATURE

To prevent unnecessary interruption of workflow during hours of operation Zo’s limits solicitation and distribution of literature.  Solicitations by employees are prohibited during working time.  Distribution of literature of any kind by employees is prohibited in work areas.  Persons who are not employees of Zo’s are not allowed to be on company premises at any time for the purpose of engaging in either solicitation or distribution of literature, so if you see someone you don’t know walking around handing out leaflets let us know.

Breaks are not work time, so if you want to sell Girl Scout cookies for your daughter do it on your breaks and make sure the person you are pestering is on break too.  Break rooms are not work areas, so again, make sure you put the cookie order sheet in the break room, not at your desk.  If we find the order sheet where it does not belong, we will move it and we won’t buy any cookies.  By the way, if you pester people too much, we are going to make you stop.  So, See Rule 1.

And that is it.  Yep, that is the entire Zo’s employee handbook. Nothing more and nothing less.  What about the FMLA you say?   Zo’s is not big enough for FMLA but you might be.  Will you be surprised to learn that I can help you do that?  How about leaves of absence?  We will deal with them as they come along.  TheADAis going to be our guide in that regard anyway.  How about vacation?  Again, we are pretty small and this was always meant to be an example of a handbook for an employer just starting out.  What we are going to do at Zo’s is put PTO in each employee’s offer letter and move it to the handbook when we get enough employees for it to make sense.  But you might want to put that in now.  And I will tell you one more thing we are going to have that won’t be part of the handbook:  Everyone, and I mean everyone, is going to sign a confidentiality agreement.

So that is what Zo’s is going to do.  But don’t forget, that just might not work for you.  So here are some other things that you might want to consider:  Do you want a personal relationship policy?  (Back in the old days we called these fraternization policies!)  How about an attendance policy?  If so, are you going to have just a statement about attendance or do you think you might want to have some sort of point system?  Are you going to have some sort of a grievance procedure or open door policy?  Do you want to deal with things like breaks and meal periods and holiday pay?  Are you going to do drug tests?

So you see, there are some questions you still need to ask yourself and of course, I will be happy to help you work your way through these things.  And the answer to some of these questions may depend on how far along you are and how many employees you have.

But here at Zo’s, and we may add an additional policy here and there as we go,  this is what we are going to start with. “Can’t be,” you say!  “I just read an article from a ‘Mega Firm’ and they said I need a workplace violence policy!”  Ok, if you are a great big employer with hundreds of employees maybe you do.  But if you are not, do you need to tell people they can’t hit other people or threaten them, or bring a weapon to work? If you do, you better rethink your hiring practices.

I think we can always fall back on Rule 1: Be Professional.

But wait a second, You said in this installment I get two free policies in a single post.  I didn’t forget.  The last, very last thing we are going to give you is an acknowledgment form.  Here is what it says:

ACKNOWLEDGMENT

I acknowledge receiving the Zo’s Employee Handbook dated ___________, 2011.  I understand and agree that it is my responsibility to read and understand the policies in this Employee Handbook.  I understand and agree that my employment with Zo’s is at-will and that nothing contained in the Employee Handbook is intended to nor does it alter the at-will nature of my employment.  I agree that this Handbook is not a contract of employment.

I understand and agree that Zo’s reserves the right, in its sole discretion, to change, revise or discontinue any of the policies contained in this handbook at any time, with or without notice.  Zo’s will make every attempt to notify you of any changes to its policies as soon as possible, but the effect of any such change is not dependent on you receiving actual notice of the change.

                                                                                                                       

Employee                                                                                 Date

Zo’s EMPLOYEE HANDBOOK PART VI: SOCIAL SECURITY NUMBER PRIVACY POLICY

At Zo’s we also have a Social Security Number privacy policy. Why?  Because Zo’s is based in Michigan and in Michigan we have to have a Social Security number privacy policy law. So here is what the policy says:

SOCIAL SECURITY NUMBER PRIVACY

Zo’s understands the importance of protecting the confidentiality of its employees’ Social Security numbers and those collected in the ordinary course of Zo’s business. Neither Zo’s nor any of its employees will unlawfully disclose Social Security numbers obtained during the ordinary course of business. Zo’s will limit access to information or documents containing Social Security numbers to those employees who need the information to do their jobs.

 In addition, Zo’s will shield Social Security numbers displayed on computer monitors or printed documents from being easily viewed by others. Unless required to do so, Zo’s will not use Social Security numbers as personal identifiers, permit numbers, license numbers, or primary account numbers or other similar uses

 Zo’s may use a Social Security number to perform an administrative duty related to employment, including, for example, to verify the identity of an individual; to detect or prevent identity theft; to investigate claims; to perform a credit check, criminal background check or driving history check; to enforce legal rights; or to administer benefits programs.

All provisions of this policy are subject to the language of the Social Security Number Privacy Act of the State ofMichigan.

Seems pretty simple, right?  It is also basically what is required by the law and it is such a straight forward policy that there is nothing much more to talk about.  So have a great day and next week we will wrap up Zo’s employee handbook.

Zo’s EMPLOYEE HANDBOOK PART V: COMPUTER USE, SOCIAL MEDIA AND INTERNET USE POLICY

At Zo’s, everyone is going to have a computer and everyone is going to have unlimited access to the Internet and everyone is going to have an e-mail account. And that, as you know, can cause some problems. That means we need a computer use policy. And at Zo’s, when we say computer use we mean not only the computer on your desk, but every thing that you can do with your computer. We mean  how you use your e-mail account, how you use the Internet and what you do on social media. So our computer use policy is going to deal with all of those things. But it might not be as long as you think:

COMPUTER USE POLICY

 Zo’s understands the popularity and usefulness of social networking sites, Internet forums, blogs and other forms of Internet communication and expression (collectively known as social media). Zo’s has no desire to keep employees from realizing the benefits of social media; however, we recognize that the popularity of social media creates challenges.  So when using your computer, your email account, the Internet or social media, see Rule 1.

Zo’s can monitor your Zo’s email account, your use of your work computer and any work computer resources (which includes things like company provided software, your iPad if we give you one, your data use (not the content of phone calls, but maybe the time you spend on them) on your iPhone or Blackberry if we give you one of those and any other computer based resource we give you to use for your job, which we are going to collectively call computer resources) and we may look at them if we believe we have a reason to. Don’t give us a reason to and we won’t.  See Rule 1. Whether you give us a reason or not, it is best to expect that what you say using Zo email, a Zo computer or a Zo computer resource is not going to be private.  After all, you are at work and we pay you, so we get to know what you are doing. That’s just common sense.

When talking about Zo’s products and services always tell people that you work at Zo’s and always tell the truth about the products and services we offer.  Also, don’t post or engage in objectionable (and by objectionable we mean things like demeaning anyone because of their membership in a protected class, see the EEO Policy, or that harasses anyone because of their membership in a protected class, see the Anti Harassment Policy) conduct on Zo’s computer resources or while working.  See Rule 1.  Finally, we respect your right to engage in dialog on social media and the internet while not at work and we respect your rights under section 7 of the NLRA, and what you do on your time is generally your business, so don’t make it Zo’s.  If you are talking about work, See Rule 1.

Now there is one big change to this policy that I never would have put in to a social media policy, or any other policy for that matter, even a couple of months ago, but I put it in this one, and that is . . . . drum roll please . . . . the reference to section 7 of the National Labor Relations Act.  “Is Zo’s a union employer” you ask?  Nope it’s not.  But the National Labor Relations Board is very interested in what is going on with social media these days.  In fact, the Office of the General Counsel of the Board just recently issued Operations-Management Memorandum OM 11-74 on August 18, 2011 that provides a summary of some of its actions regarding section 7 and social media.  Basically, what the Board is saying is that a social medial policy that broadly prohibits employees from doing things like making disparaging remarks about the company is a violation of Section 8(a)(1) of the NLRA.  And that is true if you are a union employer or not.  And please don’t forget, the Board’s jurisdictional requirements are not based on the number of employees you have.  Rather, it is formula based on how much business you do in interstate commerce.  So I thought it would be best just to deal with the section 7 issues up front.  After all, Zo’s is going to need to put up a poster soon anyway.

Zo’s EMPLOYEE HANDBOOK PART IV: ANTI-HARASSMENT POLICY

This is going to be another lawyerly section of the Zo employee handbook.  Why, you ask, is this part lawyerly? Is there a law that requires you to have an anti-harassment policy? Well, sort of.  What the heck does “sort of” mean, Zo? It means that there is no statute that specifically requires you to have an anti-harassment policy, but the U.S. Supreme Court says that if you want to take advantage of a certain defense to a sexual harassment charge, you have to have a policy. And when the Supreme Court says we think it is a good idea that you have a policy. . . well, we lawyers tend to agree. One more thing to keep in mind, look at the title.  I like something like “Policy Against Harassment” not “Harassment Policy”.  The former makes if clear you won’t condone harassment, the latter makes it sound like you allow harassment as long as you do it by the rules.  Oh and it is an anti “harassment” policy, not an anti “sexual harassment” policy.  I just think it is a good idea to make sure employee’s know you won’t tolerate any harassment based on any protected category, not just sex or gender.  So, here we go:

POLICY AGAINST HARASSMENT

It is our policy here at Zo’s to provide a work environment free from harassment. Zo’s will not tolerate any conduct that violates this policy, and will promptly investigate and resolve all alleged complaints and take appropriate disciplinary action against employees who violate this policy.

Zo’s will not tolerate harassment of any employee by any other employee, supervisor, vendor or customer. Harassment for any discriminatory reason, such as sex, race, color, national origin, disability, age, religion, marital status, sexual orientation, or any other protected category, violates Zo’s policy.

Sexual harassment includes unwelcome sexual advances, requests for sexual favors or any other conduct of a sexual nature when:  (1) submission to the conduct is made, either implicitly or explicitly, a condition of employment; (2) submission to or rejection of the conduct is used as the basis for an employment decision affecting the harassed employee; or (3) the harassment has the purpose or effect of unreasonably interfering with the employee’s work performance or creating an environment that is intimidating, hostile or offensive to the employee.

You must exercise your own good judgment to avoid any conduct that may be perceived by others as harassment. See Rule 1 in this Handbook.  The following conduct is a partial list of these behaviors:

–                    Unwanted sexual advances

–                    Offering employment benefits in exchange for sexual favors

–                    Making or threatening reprisals after a negative response to sexual advances

–                    Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or                                          pictures, cartoons or posters

–                    Verbal conduct: making or using derogatory comments, epithets, slurs and jokes.

–                    Verbal sexual advances or propositions

–                    Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually                           degrading words used to describe an individual, suggestive or obscene letters, notes or invitations.

–                    Physical conduct: touching, assaulting, impeding or blocking movements.

If you believe that you have been subjected to conduct that violates this policy, you must report it immediately to your supervisor, to HR or straight to Zo. Any complaint of alleged harassment will be carefully investigated.  Should there be any violation of this policy, appropriate actions will be taken to correct the matter.. Do not allow an inappropriate situation to continue by not reporting it, regardless of who is creating that situation. No employee in this organization is exempt from this policy. In response to every complaint, Zo’s will take prompt and necessary steps to investigate the matter and will protect your confidentiality as much as is possible, recognizing the need to thoroughly investigate all complaints. Zo’s will take corrective and preventative actions where necessary. Zo’s will not retaliate against any employee who in good faith brings a complaint to the attention of Zo’s or participates in an investigation regarding a complaint. Any employee who violates this policy is subject to discipline, up to and including termination

Now that is a long one, and no doubt a lawyer wrote it, but hey . . . I am a lawyer after all; you can’t shake it all out of me.  You need this one in your handbook, and if you don’t have a handbook you need this one posted on a bulletin board or handed out to employees.

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