Marshall's Law
Marshall H. Tanick, Attorney at Law
New Year Good Time to Review Business Law:
From Family Leave to Whistle-Blowing, Keeping All Employees Apprised Makes Good Management Sense
The beginning of the New Year is an opportune occasion for businesses to take stock of their employment relationships, make resolutions to improve their practices, and put them into effect. Here are six resolutions for businesses to deal with employment relationships:
• Legal Literacy. A little bit of knowledge may, as the saying goes, be a dangerous thing. But being literate about laws applicable to employee relations can go a long way toward avoiding legal problems for employers. Many employment laws depend upon the size of the business. For instance, the Federal Family & Medical Leave Act (FMLA), which requires employers to give a minimum of 12 weeks' unpaid leave to employees dealing with a "serious" medical condition in themselves or family member, applies to employers with 50 or more employees. Other laws cover smaller employers, such as the federal discrimination laws, which apply to employers with 15 or more employees. In addition, Minnesota has its own discrimination laws that cover nearly all employers, regardless of size.
• Have Handbooks. They may limit potential liability to employees. They can establish standard procedures across-the-board. Minnesota law treats employment manuals as binding contracts, enforceable by management and employees. But employers can avoid the adverse effects of such manuals by using disclaimer language. The manuals should state that all employees work on an "at will" basis, coupled with a conspicuous disclaimer, usually on the first page of the manual, stating that the terms of the manuals are only guidelines, not legally binding and may be changed at any time, in the discretion of management.
• Training Topics. Claims of sexual harassment and discrimination abound in the workplace. Unless improper conduct is committed by supervisors, employees generally may not sue their employers for discrimination and harassment unless management knew, or should have known, of this misbehavior. One way to limit exposure to liability is to conduct periodic training sessions for employees.
• Avoid Retaliation. Retaliation is one of the fastest growing types of legal claims made by employees. They have been encouraged by rulings of the U.S. Supreme Court that facilitate employees in suing for reprisal after they have complained about wrongful behavior in the workplace. Employers should refrain from retaliating against employees who make such charges. Before an employee who has complained about wrongful behavior is to be terminated, or otherwise disciplined, management should make sure that there is adequate documentation supporting the disciplinary action.
• Investigate Issues. Employees who complain about illegal behavior may be setting their employer up for a whistle-blowing charge if they are later disciplined. Management should not ignore these complaints, but should investigate them carefully. Taking timely and appropriate action, following an investigation, can minimize potential liability. In appropriate instances, the investigation may be done by a neutral, independent source, rather than internally, in order to avoid conflict of interest claims.
• Assessing Technology Policies. The use of office technology, such as computers, e-mail, and the Internet, provide a growing basis for discipline of employees. While employers generally are entitled to take disciplinary action against employees who misuse office technology for personal purposes, it is prudent for companies to adopt specific policies dealing with technological topics.
By placing employees on notice that they are subject to discipline for personal use, or misuse, of business technology, employers can fend off liability for unemployment compensation or wrongful termination claims by discharged employees. These practices often are followed by companies through their human resources departments. But many small and mid-size businesses do not have, or cannot afford, these experts. They should devote some time early in the year to engage in a self check-up of their technology policies.
Making these resolutions is only the first step; following them is even more important. They may make for a happier New Year for those who own or manage businesses.
Marshall H. Tanick is an attorney with the law firm of MANSFIELD, TANICK & COHEN, P.A., in Minneapolis and St. Paul. He is Certified as a Civil Trial Specialist by the Minnesota State Bar Association (MSBA) and represents employers and employees in a variety of workplace-related matters. This article originally appeared in the January 7, 2008 edition of the StarTribune.
