"You Say Goodbye and I Say Hello"
Workplace Communications & Employment Law
By: Phillip J. Trobaugh
The famous line from the Beatles' song "Hello Goodbye" could be an anthem for many employers and employees when it comes to effective communication with each other. But, interacting with coworkers does not have to be a "Magical Mystery Tour." Here are five typical workplace communications issues and how the law intersects with them.
1. Handbooks
A handbook is a clear way to communicate rules and policies. It can be very powerful in showing employees clear expectations and is critical to any defense in an employee-initiated lawsuit. Several new changes to the law should prompt most employers to revise theirs to be compliant and to communicate effectively.
a. Vacation Pay
A recent Minnesota Supreme Court case has garnered a lot of attention among employers of every size, concerning the issue of vacation and "paid time-off": Lee v. Fresenius Medical Care, Inc. 741 N.W.2d 117 (2007). The company fired a dialysis assistant for misconduct, and refused to pay her unused PTO, because its policy stated employees lost those benefits if fired for misconduct. The employee sued under Minn. Stat. sec. 181.13, for failure to pay her wages. The Supreme Court reversed the Court of Appeals when it held that the statute tells employers when to pay, but not what. It said PTO is "wholly contractual." The Court went on to say that Minnesota law does not provide for employee vacation pay as of right, but that the parties may contract for such payment. So, if an employer promises in its handbook to pay for unused vacation and PTO, it must.
For effective communication, make sure this policy is updated in the employee handbook. If the employer wants to make such pay conditional, it must be clearly stated; likewise, if the employer does not want pay at all, this should be clearly stated in the handbook.
b. Personnel File Notification Minn. Stat. § 181.9631
A new law, effective January 1, 2008, requires employers to notify employees in writing of their rights to review their personnel records. The law doesn't tell employers how to handle such notification. However, it should be included in any new revision to the handbook.
The written notice must summarize employees' rights and remedies under the Personnel Records statute. These include the right, upon written request, to review employees' personnel records once every six months during employment, and the right after reviewing the record to obtain copies.
Former employees also have the right to request copies of their personnel records. If an employee disputes information contained in his or her personnel file, and the employer refuses to revise or remove the information, the employee has the right to submit a position statement that must be maintained with the record. Employers may not retaliate against employees for asserting their rights under the statute and can bring civil actions to enforce their rights.
c. No Smoking Minn. Stat. § 144.411
The Freedom to Breathe Act became effective in October 2007 and amended the Minnesota Clean Indoor Act to impose statewide smoking restrictions in places of employment. The areas covered include any indoor area in which two or more individuals perform any type of a service for payment, notably employee cafeterias, lounges, auditoriums, restrooms, elevators and hallways.
The ban also includes vehicles "used in whole or in part for work purposes ... during hours of operation if more than one person is present." Private residences also may be covered by the ban if an area is used regularly as a place of business with one or more employees on-site, or if the homeowner uses the area regularly to meet with patients, clients or customers.
With a few exceptions, designated indoor smoking areas are no longer permissible. This is defined as certain screened patios and other enclosures that employers used to provide employees for smoking breaks. Employers are also banned from providing "smoking equipment" like ashtrays or matches in areas where smoking is prohibited. The law also prohibits employers from firing, penalizing or discriminating in any way against employees, applicants or customers who complain or otherwise exercise their "right to a smoke free environment."
2. Drug Testing
A recent case stresses the importance of having strong and clear language concerning drug testing in the workplace, especially following a work-related injury.
In Harris v. Wal- Mart Stores, Inc., No. 07-1191 (D. Minn., Nov. 8, 2007), a stockperson suffered a back injury in a fall at work. Both employer and employee failed to fill out the workers' compensation forms until two months later, at which point Wal-Mart required the employee to be drug-tested per its post-accident policy. Through a series of misadventures, the employee failed to get tested, and Wal-Mart was unsuccessful in following up with the employee and fired him for failing to reschedule the test. The employee sued for violation of Minnesota's drug-testing law, arguing that the employer had been arbitrary and capricious for mandating a drug test 64 days after the injury because the company's policy said such a test should be done "immediately or as soon as practical" after an accident. However, because there was a dispute over whether the injury was reported in January (when it supposedly happened) or in March (when the employee came back to fill out the workers' comp forms), the judge felt it was inappropriate to issue a final ruling until that conflict was resolved. This issue was sent to trial.
Make sure your clients' drug-and alcohol-testing policies require employees to report accidents or injuries as soon as possible so you can require the tests as soon as possible afterward. That helps strengthen the inference that the injury and the positive test are related, as the judge observed.
3. Performance Evaluations
After the handbook, the performance evaluation is the next most powerful form of communication with employees. Properly handled, it can truly assist with an employee's faltering performance. Properly documented, it can assist in a potential defense against a wrongful termination lawsuit.
5 TIPS FOR EMPLOYERS
• Give more informal feedback. Don't wait to tell employees if they are doing a good or bad job. Timely feedback goes the farthest. Periodic feedback enables supervisors to reinforce good performance and root out objectionable behavior. Don't let a lot of administrative structures tie you down in the "process" of feedback - drop a note, e-mail, or voicemail to a deserving employee. A direct verbal comment makes the most impact.
• Avoid dramatic showdowns. Letting problems fester or a poor relationship deteriorate can only lead to dramatic showdowns. Rarely does anyone come off looking good after these incidents. They are disruptive and disturbing for all, including managers and supervisors. You can preempt an argument by seeing someone in an unscheduled visit on their turf, or by scheduling a difficult meeting outside the office. Plan ahead to cover sensitive issues in a way that does not exacerbate the situation. Always be in control of your response, and never allow the discussion to turn into personally insulting dialogue.
• Kindness is a virtue. Try a little kindness in everyday dealings with your employees. Besides being its own benefit, kindness in the right amount can increase morale and productivity. An inexpensive gift or card can go a long way in sustaining or repairing a work relationship with subordinates (and co-workers).
• Keep regularly scheduled performance evaluations. Employees have a great deal invested in their jobs, and they can get anxious when annual performance reviews come around. Keeping these scheduled dates sacred goes a long way to avoiding problems down the road. Many disgruntled workers' primary complaint is that the employer neglected to keep regularly scheduled reviews, or ignored them altogether. Employees need feedback in order to know what they are doing right and what needs improvement. They also expect well-run companies to recognize their efforts and act in a timely way. This has obvious benefits to companies, too.
• Watch your bedside manner. There are many different management styles, but one component is being aware of how you are perceived by others. Imagining yourself as the receiver of the message you are sending can easily avert miscommunications. Even bad news can be handled with tact and efficiency. Employees will be less willing to pursue grudges against those managers who have expressed themselves appropriately and with some sympathy. Balance the company's needs with respect for the individual.
4. Internet & E-mail Policies
E-mail continues to vex employers who do not have clearly established usage policies for their employees. Supervalu, Inc. of Eden Prairie lost more than $10 million[KB1] after one of its employees was tricked into wiring money to fraudulent bank accounts it thought belonged to two vendors: American Greetings Corp. and Frito-Lay. The grocery chain received two e-mails from those claiming to represent the vendors, and asking Supervalu to send checks to new bank account numbers. The fake American Greetings account received $6.5 million, and $3.6 million went to the fake Frito-Lay account. The FBI intercepted the money before it was removed from the accounts. But, now all three companies are laying claim to the money, and the matter is in suit.
According to a 2004 survey by the American Management Association, 25 percent of all employers have fired an employee for either email or Internet misuse. A few other statistics from the survey:
- 21 percent of employee e-mail has been subpoenaed by courts and regulators.
- 13 percent of companies have battled lawsuits triggered by employee e-mail.
- 65 percent of companies lack e-mail retention policies.
- 94 percent of companies fail to retain and archive IM (instant message) transcripts.
- 46 percent of companies offer employees no e-mail policy training.
- 50 percent of workplace IM users send/receive risky content including attachments, jokes, gossip, confidential information and porn.
Source: "2004 Workplace E-Mail and IM Survey" from American Management Association and The ePolicy Institute.
7 TIPS FOR EMPLOYERS
- Disclose to employees upon hiring, and periodically thereafter, that all e-mail, voicemail, Internet access and computer files are employer property and as such are subject to monitoring.
- Notify employees that the technology they are provided is company property and is to be used only for business purposes.
- Explain to employees that although they are given passwords to access their system, they should not have any expectation that the system or anything placed on the system is "private."
- Notify employees what material, in hard copy or in electronic format, they will not be allowed to transport in or out of the employer's premises or system. Confidential material, trade secrets and protected intellectual property should not be disseminated out of the company without safeguards approved by the employer, and as allowed by the software used to monitor employee use of technology.
- Reiterate that your non-harassment and non-discriminatory practice policies apply to company e-mail to prohibit offensive and potentially discriminatory behavior.It is difficult to describe in detail everything that should not be put in e-mail. Use the mother test or the jury trial test:have employees ask themselves how they would feel if they had to show the e-mail to their mothers or explain it to a jury in federal court.Such tests often have the hoped-for effect.
- Notify employees what the penalties for violation of the policy are or could be. This should include reprimand, demotion and termination.
- Be sure to get something in writing from your employee to acknowledge receipt of the written policy when issued and if updated.
5. Finally, Some FMLA
When communicating to employees their various FMLA (and related rights), most employers choose to display posters. Many employers receive solicitations from companies trying to sell such posters, but these documents are typically available free through government Web sites. Be aware that some of these companies try to pass themselves off as being "official." Avoid solicitations from sites not ending in ".gov."
Federal forms: www.dol.gov/osbp/sbrefa/poster
Minnesota forms: www.doli.state.mn.us/posters.html
Finally, consider purchasing software that specifically handles FMLA-eligibility tracking.
