Employee Handbooks

Draft Employee Release Agreements Carefully

I read a great article today from the folks at the law firm Littler Mendelson regarding several "traps for the unwary" in drafting effective and binding employment releases.  As a general rule you should definitely contact an attorney before having an employee sign a release/waiver of rights, but this article is still a good read.  Be aware that there are some rights you can NOT ask an employee to waive, period:  the right to file an unemployment compensation claim; the right to file a workers compensation claim; and certain unpaid wage and unpaid overtime claims.  The federal Equal Employment Opportunity Commission has taken the position that you cannot require an employee to forgo their right to file a charge of discrimination.  All food for thought as you prepare to terminate an employee or undergo a reduction in force.

Responding to a Charge of Discrimination

I just read a great article, A Few Practical Tips on Responding to a Discrimination Charge, over at Workforce Management by James Kingma.  It focuses on what to do when an employee (or former employee) files a charge of discrimination with the EEOC.  It offers a plain language primer on what an employer should be considering and what actions to take in that situation.

Boomers, Bias, and Releases

    Those in the leading edge of the baby boomer generation are approaching retirement.  As with everything else relating to the boomers, the impact of the aging of this population is huge, including the impact on the workplace.  The younger members are in their 40s and the eldest are in their 60s, and all boomers are now covered by laws against discrimination based on age. 

    Violation of the laws against age discrimination can come in many forms, intentional or otherwise - from failure to hire to using age as a criteria for layoff.  Many employers are not aware that they may be violating state or federal law when they draft a job posting that includes a maximum number of years of experience.

    Given their experience and often their greater financial resources, older employees tend to be more likely to pursue a claim of age discrimination.  According to one source, the average jury award for an age discrimination claim was $262,405. "Boomers Will Affect Bias Issues"   (Though in my experience, age discrimination is often difficult to prove.)

    The Older Worker Benefit Protection Act imposes several requirements on employers when they terminate or layoff employees over the age of 40.  There is specific language that must be included in a release of claims presented to an employee as part of a termination of an employee over the age of 40, including specific advise that they have the right to seek the advice of an attorney.  Several recent court decisions also make it clear that when an employer lays off a significant number of employees, the requirements of the act must be followed to the letter or the releases may be invalid.

Why Have An Employee Handbook?

This question is one of the underlying purposes of this blog.  I have been practicing in employment law for twelve years, and a common problem I observe is the failure of business to take pro active steps to prevent employment law claims.  I understand how this happens - when people start a business, they usually are more interested in, and consumed with, getting their fledgling business off the ground.  "Human resources" is seen as a luxury, or the stuff of big companies.  So many small businesses simply make sure their payroll is done, and that the appropriate taxes are paid and just assume everything else will just work out.  This can turn out to be penny wise, but pound foolish.  As we'll see during the life of this blog, human resources is NOT a luxury, and if you have even one employee, it should take up some space in your business plan.  Even the best of intentions can turn out to cause serious legal problems.  Future posts will include the top reasons to have a handbook or at least some written policies; what are the key areas to cover; examples of where things have gone right and where they have gone wrong.  And, once in a while, there might be a completely unrelated post on the wonders of baseball.  Welcome to my blog - please feel free to send me questions or comments!