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The Best Defense Is a Good Offense

Some New Year’s Resolutions for Area Employers


Rosemary J. Nevins

Have you thought about making resolutions for the new year with regard to your business policies and practices? This is important for you to do. Indeed, given the number of decisions, changes, and agency audits, to name just a few things, which have occurred during this past year and can likely impact your existing policies and practices, it would be foolhardy to continue to ignore the handwriting on the wall or to adopt a head-in-the-sand approach.

So what is an employer to do? Listed below are some key resolutions, which are by no means all-inclusive, that may be helpful in the day-to-day operation of your business.


Training for Managers and Supervisors

Experience has shown that many of the employment issues that eventually evolve into full-blown complaints filed with either an administrative agency or the courts stem from actions or inactions of mid-level supervisors or managers, who, much of the time, through no fault of their own, have not received adequate training in how to deal with myriad issues. These include, but are not limited to, following proper disciplinary procedures, documenting information, preparing performance evaluations, appropriate record keeping, employee privacy, and any number of other things that arise on an almost daily basis in the employment context.

What should you do? Resolve that, during this coming year, the company will provide practical training in these areas that tend to be the most problematic for managers and supervisors, as well as updating them on changes in practices due to recent court or agency decisions and actions in order to be better prepared to defend against administrative charges, court complaints, or agency audits. Remember, the best defense is a good offense.


Handbook and Policy Reviews

In an effort to stem the trend away from unionization, the National Labor Relations Board (NLRB) has taken on a number of new causes during this past year. The causes involve decisions striking down some of the typical employment-at-will language found in virtually every employer’s handbook; acknowledgement of receipt of handbook and social-media policies; and discouraging employees from disclosing certain personnel information, such as salaries, disciplinary actions, or other terms and conditions of employment, as well as discussing information garnered during in-house investigations, unless the confidentiality restriction is based on a specific legitimate business justification.

As its reason for striking down these particular provisions in some cases, the board found that the handbook or policy language in each case would lead employees to believe that they were restricted from engaging in ‘concerted activities,’ a right guaranteed to all employees under Section 7 of the National Labor Relations Act (NLRA).

What should you do? Resolve to give serious consideration to having your handbook and/or policies reviewed to ensure that the language contained therein comports with that found to be acceptable in some of the board’s decisions. While this may sound like a rather simple task, it is not, due mostly to the fact that, to date, some of the board decisions have provided little definitive guidance with regard to these issues, thus warranting close scrutiny of an employer’s existing policies in these areas. Particularly challenging are the social-media policies, which have stemmed from the increase in employee postings on various social-media sites including not only personal information, but also personnel information and criticisms of employers and/or individual supervisors or managers. In fact, many employers today make hiring and firing decisions based on the information posted by some employees. Employers should proceed with caution in these areas in order to protect themselves.

As a final note on this topic, employers who blithely believe that their business is not affected by the board’s recent decisions are living in a fool’s paradise. Why is that? Because the decisions apply to both unionized and non-unionized employers.


Employment-practices Audits

The new year is a great time to engage in some housekeeping issues with regard to the areas that follow.

• Do you have updated, required posters notifying employees of their rights under anti- discrimination laws, wage-and-hour laws, workers’ compensation laws, sexual harassment, OSHA, and other laws? Are these posters displayed in areas where employees have ready access to them? This is not a choice; it is a requirement.

• Having received additional funding, the Department of Labor (DOL), on its own decision and not based on any complaint, has begun to engage in random audits of employers involving wage-and-hour and immigration-forms record keeping. Are you ready for such an audit should you be one of the ones chosen? There are strict record-keeping requirements for different types of information under both federal and state law.

• There has also been increased scrutiny and concern with regard to classification of employees. This area is particularly troublesome since an employer who has been found to engage in such misclassification — such as designating an employee as ‘exempt,’ thus not entitling the employee to overtime pay for hours worked over 40 during the course of a work week — can be subject to significant penalties should the classification be found to be incorrect or inapplicable to the specific employee. Another area of concern has to do with designating an individual as an independent contractor rather than an employee.

What should you do? Resolve to check on and review these matters on a yearly basis to ensure that the company is in compliance with the requirements of these laws in an effort to either avert an audit or claim or, in the alternative, to be thoroughly prepared to defend against any such audit or complaint.


Impact of the New

Marijuana Law

Beginning in January 2013, Massachusetts General Laws Chapter 94 has been amended to include a new provision which provides for the regulation of medical use of marijuana by patients approved by physicians and certified by the department of public health. While Section 3(b) of the law specifically states that no school, employer, or landlord may refuse to enroll, employ, or lease to — or otherwise penalize — a person solely for his or her status as a registered qualifying patient or a registered primary caregiver, it may be necessary to re-examine workplace drug policies to ensure that any disciplinary action taken against an employee under such policies will not run afoul of the newly enacted law.

A key question is whether an employer’s safety concerns will prevail with regard to permitting an employee to engage in his/her job duties while under the influence of marijuana, even though the employee meets the definitions of ‘debilitating condition,’ ‘qualifying patient,’ and ‘medical use’ as provided in the law.

What should you do? Resolve to err on the side of caution. At a minimum, keep abreast of information further designating the implications of the law for employers, and seek legal advice prior to taking any disciplinary action against such an employee.


Documentation by Managers and Supervisors

Although this is somewhat of an old saw, it can never receive enough emphasis and attention. Think of documentation as an ounce of prevention is worth a pound of cure. In recent months, some cases have turned on the fact that the employer had adequate, accurate, and consistent documentation to support its defense against the claims brought against it. Guess what? The employer ended up winning. On the other hand, there have also been decisions where the documentation was completely lacking or where the documentation provided did not comport with the reasons the employer gave for taking the action it did. Guess what? The employer lost.

What should you do? Resolve to encourage managers and supervisors to document all information regarding any and all actions or decisions (positive or negative) affecting employees under their supervision. Keep in mind the mantra, ‘if you don’t write it down, it didn’t happen.’ It could make the difference between winning or losing the case.

Making and keeping these resolutions will, hopefully, make your new year less daunting and more prosperous. Have a happy one!


Rosemary J. Nevins, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor- and employment-law firm; (413) 586-2288; rnevins@royalllp.com


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