Understanding and Complying with Basic Employee Privacy Issues in the Workplace, Part 1

Employees have some rights to privacy in the workplace and it’s the job of business owners to understand these rights and be compliant. Check out this first part in a series on privacy issues.

As a small business owner/manager, it is important for you to understand and to comply with employee privacy rights. Basically, all employees have some rights to privacy in the workplace, but there are some exceptions. In this first article, I will discuss the basic standards that you should know. I will then follow up in subsequent articles with additional information regarding employee vs. employer privacy issues.

Here is an overview of the basic employee rights that you should know:

Need to know no. 1: Employee privacy rights include their personal items. 

A business does not have the right to inspect any personal items (such as a purse, briefcase, locker, etc.) without just cause. Employees have the right to protection from unreasonable searches so you must have a reasonable and legitimate business expectation to conduct a workplace search. Questions arise including whose property it is (lockers, lock, etc.) and if you have the right to break a lock without the employee’s consent. If the lock on the locker or the lock combination is provided by the employer, there should be NO expectation of privacy by the employee and the employer has right to open and inspect that locker without employee consent any time they desire. However, it is always good practice to consult legal counsel before making any decisions or searching these areas.

RELATED: Drafting and negotiating your workplace harassment policy.

Need to know no. 2: Employees have the right to be free from harassment or discrimination in the workplace. 

This can include many types of discrimination and harassment, such as race and ethnicity, religious, sex, age, gender identity, language and accent, and more.

Need to know no. 3: Employees have the right to personal phone calls without being monitored. 

This is due to the Electronic Communications Privacy Act of 1986 (ECPA) (18 U.S.C. Section 2511 et seq.) and common-law protections against invasion of privacy. The ECPA is the only federal law that directly governs the monitoring of electronic communications in the workplace. The federal Wiretap Act prohibits the interception of stored voice mail messages as well as live telephone calls. Employers may engage in legal surveillance of oral telephone communications if they do so in the ordinary course of business, however, the moment you realize that a telephone conversation is personal in nature you must stop listening—even if the employee grants permission. The exception is if the employee grants consent to unlimited listening in on both personal and business phone calls. If you feel you must monitor their calls, such as in telemarketing, etc. than you should obtain the employee's advance written consent. 

RELATED: Read more from Tim Dimoff.

Need to know no. 4: Employees have the right to expect that you, as their employer, will protect their privacy regarding their personal information. 
This includes their social security numbers, addresses, birth dates, background check information, employment history and job performance notes. Employees have the right to have this information protected and not disseminated to anyone. 

If you are contacted for a job review on a former employee, you can only disclose their training, experience, qualifications, job performance and why their employment with you ended. 
These are just some of the basic areas involving employee privacy issues that all business owners/managers should be aware of. In the coming months, I will discuss email monitoring, video surveillance issues and internet usage. 

President, SACS Consulting & Investigative Services, Speaker, Trainer, Corporate Security ExpertTimothy A. Dimoff, CPP, president of SACS Consulting & Investigative Services, Inc., is a speaker, trainer and author and a leading authority in high-risk workplace and human resource security and crime issues. He is a Certified Protection Professional; a certified legal expert in corporate security procedures and training; a member of the Ohio and International Narcotic Associations; the Ohio and National Societies for Human Resource Managers; and the American Society for Industrial Security. He holds a B.S. in Sociology, with an emphasis in criminology, from Dennison University. Contact him at info@sacsconsulting.com. 

  • Email
  • Next up: What Small Businesses Need to Know About Employee Screenings
  • More in HR
  • What Small Businesses Need to Know About Employee Screenings

    When hiring, don’t just rely on a resume or cursory social media search. Find out how to effectively conduct background checks to better help you find that perfect fit for your team.

    Small businesses are growing and evolving and employees are often called upon to wear many hats and do jobs that include several areas of responsibility. Hiring the right employee is challenging. And it is even more challenging when you need to consider if the person has issues in their history. 

    Small business owners might think that because they are a small business, they don’t need to conduct screenings or background checks on employees. They may mistakenly believe that it is not necessary, or that it is too time consuming or too costly. It is vitally important that small business owners understand that it is a necessary business practice in order to help mitigate risk and improve the quality and safety of their employees. 

    You cannot just depend on a resume, an interview, a LinkedIn profile with recommendations and maybe a quick social media search to help your hiring decisions. Online searches may not be accurate. Therefore, every business, no matter how small, must conduct accurate background screenings before hiring any employee. 

    RELATED: Are you aware of these five smart hiring practices?

    Here are five tips to help you successfully conduct background screenings.

    Background Screening Tip No. 1: Put it in Writing. Every business, no matter the size, needs a written policy manual that includes a written screening policy. Screening policies can help protect your business in the event of a discrimination claim or regulatory audit. The policy should also set clear background screening procedures that will be followed for all employees, detailing the types of screening procedures you may conduct, including but not limited to drug screenings, background and prior employment checks, credit checks, criminal record checks, motor vehicle records, etc. You might want to specify which types of checks will be conducted for specific types of jobs. For example, any job where they handle money or accounting should have a criminal check and a credit check conducted prior to hiring an employee. 

    Background Screening Tip No. 2: Mitigate Risk. It’s easy to make a bad hire. While there are national criminal databases that can be checked, the best practice is to hire an outside firm to conduct a more comprehensive check of criminal records. I also recommend that all businesses use both pre-employment background checks and ongoing criminal record checks for both regular workers and contingent workers.

    Negligent hiring claims are filed against an employer when they fail to perform due diligence on an employee who has caused harm or when the employee failed to prevent the damage given the authority of the employee's position. 

    The Fair Credit Reporting Act (FCRA) regulates the use of consumer reports by employers. The FCRA also dictates the way an applicant is to be notified about obtaining a background check or credit report and how they can dispute the findings. This regulation helps to ensure the accuracy of background screening reports. 
    Pre-Adverse Action and Adverse Action are terms referred to in the FCRA and are used to inform a candidate or employee that their background check yielded negative results. If a business does not adhere to these rules, they can be taken to court by the employee. 

    RELATED: Why background checks are so important.

    Background Screening Tip No. 3: Beware the Lies. Job applicants often lie when applying for a job. Common lies include work experience, education and the ability to perform specific job functions. It is crucial that you verify an applicant’s employment and education history, motor vehicle records and credit history, substance abuse history and more. This is one of the best ways to improve workplace safety and reduce your liability risks.

    Background Screening Tip No. 4: It’s Not One and Done 
    Once you hire an employee, your work is not done. You still need to assess and re-evaluate your screening standards. You should also continue to monitor any changes in your industry regulations and any changes to worker laws in your state. Always put any changes in writing in your policy manual and give new copies to all employees when changes are made. 

    Even small businesses need to comply with ever-changing industry, state and federal regulations to help mitigate risks and improve the overall quality of hires.

    RELATED: Check out more columns from Tim Dimoff by clicking here.

    Background Screening Tip No. 5: Use the Experts. Your best practice is to use a firm with the knowledge and expertise to ensure accuracy. They can help you write your policy manual, conduct screenings and help in many other ways. An outside firm understands EEOC and other regulations. And most importantly, the costs of not properly screening job candidates will be much higher if you face negligent hiring claims and litigation.

    President, SACS Consulting & Investigative Services, Speaker, Trainer, Corporate Security ExpertTimothy A. Dimoff, CPP, president of SACS Consulting & Investigative Services, Inc., is a speaker, trainer and author and a leading authority in high-risk workplace and human resource security and crime issues. He is a Certified Protection Professional; a certified legal expert in corporate security procedures and training; a member of the Ohio and International Narcotic Associations; the Ohio and National Societies for Human Resource Managers; and the American Society for Industrial Security. He holds a B.S. in Sociology, with an emphasis in criminology, from Dennison University. Contact him at info@sacsconsulting.com

  • Email
  • Next up: Employees Are Not Commodities
  • More in HR
  • Employees Are Not Commodities

    Do you look at your employees as commodities? Learn why it's important to prioritize safety and respect with your most valued resource—your employees.


    What is a commodity? In the simplest terms, it is a good or raw material that is bought or sold or traded for something else that holds value. The commodity’s value can fluctuate based on supply and demand. Labor has often been seen as a commodity and is part of the equation when an employer puts value on an open position.

    Employers likely do not even realize this, but they often treat employees as commodities. They are expendable and are only worth the price they cost in exchange for the work they do.

    Even the recruiting and HR industry refer to employees like they are “things” to be won or lost—"score,” “acquire,” “top talent,” “human capital,” “poaching,” “talent acquisition,” “resources”—these are just a handful of the terms often used.

    I have also seen this over and over again in how job seekers are treated in the recruiting industry. In a previous article Why the Recruiting Industry Can be a Racket, I talk about the contingency-based recruiting model that permeates the industry and that sets up a dynamic of treating job seekers like products to be sold as fast as possible, for the best possible price. Just like a commodity.

    So, let me ask you, when you have been an employee, and you were hired for a job, did you feel like you were a commodity, vying for the best price in exchange for the knowledge, skills, and experience you have spent your years building?

    The truth is, that yes, there is an aspect of work that can be seen as a commodity, but the tragedy is that we treat humans like they are things to be “scored,” “bought,” “traded in,” and “upgraded.”

    Here is a case in point that is the foundation of the tech industry:

    A job seeker goes to college for computer engineering, knows all the latest programming languages, has years of experience with database programming, software development, website development, and mobile app development. She is a strong and valuable member of many dev teams. She gets hired at ACME XYZ, Inc. She has all the knowledge that ACME XYZ needs to improve their products. But then new leadership comes in and decides they have to pivot to a new platform and use the most cutting-edge programming language, the new and sexy one on the street. But this solid, experienced employee does not know this language, she has never needed to use it, and therefore has not had a reason to learn it. Does ACME XYZ spend the time and money to invest in teaching her this new language? Not likely, in most tech companies, she is now a liability, not an asset. So, they cut her loose and hire a new developer who knows this new language. And they continue to cycle through developers like this for years to come.

    RELATED: How to handle HR issues without an HR department.

    Where is the regard for the human life that is affected? The human being attached to all that knowledge, that college degree, that experience. Her life, her spirit, her confidence, her livelihood? What about her family and how it affects them to have her unemployed for a time? And what about the team of humans that are affected when she leaves, the relationships that were developed, and the way her absence puts stress on the collective? In most cases the humanness behind the “employee” is not considered at all. They are just a worker-bee.

    To further illustrate the commodity thinking, during the hiring process, job seekers are often treated like suspects in a criminal case. They get interrogated with accusatory questioning, with the assumption that they lie, and the recruiter or hiring manager generally only cares about whether the person fits the needs of the position, with little to no regard for what the job seeker desires or needs, or what will help them thrive, be the best version of themselves at work and beyond.

    So, what is the problem with this approach? Let’s unpack that from the perspective of the employer or company…

    To start, the cost of hiring is high. Most stats show the cost is between 30–50% of the annual salary of the person being hired. If you are a small business owner, who most likely does all the hiring yourself, you could be spending even more! That is a lot of money wasted on the churn of commodity-based hiring. It will always be more expensive to fire and hire, fire and hire, than it is to invest in the right fit employees.

    Second, the psychological cost is also incredibly high. How does it affect our mental health to be treated like an expendable commodity?

    Treating employees like commodities greatly erodes safety and trust and creates an undertow of fear and of stress. This undertow will inevitably seep into the culture and create a foundation that encourages toxic behavior. The team will always wonder if they could be next. Which in turn deeply affects performance, effectiveness, and quality of work- and in the end, the bottom line.

    There is a common saying in the employment arena, which is to Hire Slow and Fire Fast. I am a proponent of this approach when there is a mis-hire, a wrong fit. But when this approach is used as a way to cycle through people because they are suddenly seen as losing value, then we have a problem.

    What needs to be done? We need to make a cultural shift. And that starts with you and me, and our mindset. We tend to accept the status quo, and the large players tend to set the tone for the rest of us. But we, the small business owners, can do it differently, and as history has shown, that will have a far-reaching ripple effect. We, after all, collectively employ about half of all employees in the United States, making us the largest employer and having the biggest impact on the “status-quo.”

    RELATED: Read more by Erin Longmoon.

    To begin, take a look at your own mindset, and your actions. Do they line up? What is your attitude about employees? How do you treat them? How do you interview them? What tone do you set from the very start?

    We have to see employees as the most valuable asset in our companies, more so than clients, revenue, IP, processes, and all that goes into running a company. Without our people, we really only have an idea—one that can’t get traction, have impact, or grow. We need to realize our teams are the heart of our business. And we need to treat them as such.

    We have to remember that employees are human beings with feelings. We have to prioritize safety and respect in our workplaces. And by safety, I do not just mean physical safety. It has to be emotionally safe, as well. It has to be safe to be fallible, to speak up, to oppose, to make mistakes. We have to create a culture where our employees do not feel their jobs are on the line all the time, and that they will quickly become outdated, irrelevant, or expendable.

    By starting here, you will find your employee loyalty will increase, your culture will be stronger, and you will have fewer headaches and less stress around performance, turn-over, and all that lost revenue.

    Erin Longmoon is the CEO of Zephyr Recruiting, which she founded in response to her clients’ needs for help in with building effective and successful teams. Zephyr Recruiting serves the small business community—the mom and pop places that are the backbones of our communities and our economy.

  • Email
  • Next up: FMLA Warning: Employees Can be Held Personally Liable for Family and Medical Leave Act Violations
  • More in HR
  • FMLA Warning: Employees Can be Held Personally Liable for Family and Medical Leave Act Violations

    Too often, companies wait until they get sued before taking note of how the Family and Medical Leave Act might impact their business. Don’t be that company. Read on below for an overview of the FMLA and what your liability is under the act.

    Do you own or work at a company with 50 or more employees? If so, the Family and Medical Leave Act (FMLA) likely is applicable. Violations of the FMLA have serious legal consequences. A successful plaintiff might be entitled to the recovery of lost back pay, lost front pay, emotional distress/punitive damages, attorneys’ fees and costs.  Even if you prevail in the lawsuit, the average cost of defending an FMLA lawsuit is approximately $80,000.

    For the individual manager or owner of the company, this law can be especially frightening. In addition to exposing the company to these penalties, the FMLA could impose personal liability upon employees, or owners who commit violations and meet the definition of an “employer” under the FMLA. Let’s take a closer look at the FMLA and what it means for your business.

    Overview of the FMLA

    The FMLA only applies to “covered employer,” or an employer who falls into one of the following categories:

    • private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
    • public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
    • public or private elementary or secondary school, regardless of the number of employees it employs.


    Only “eligible employees” are entitled to take leave under the FMLA. The following are requirements to constitute an “eligible employee” under the FMLA:

    • works for a covered employer;
    • has worked for the employer for at least 12 months;
    • has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave (there are special hours of service eligibility requirements apply to airline flight crew employees); and
    • works at a location where the employer has at least 50 employees within 75 miles (this only applies to private sector employers).

    Eligible employees are entitled to a maximum of 12 weeks of leave. The leave may be unpaid, but it may be combined with accrued paid leave (such as vacation or sick leave).

    An eligible employee may take leave:

    • for the birth, adoption, or placement of a child;
    • to care for a spouse, son, daughter, or parent who has a serious health condition;
    • for a serious health condition that makes the employee unable to perform the essential functions of his or her job (e.g. hospital care, treatment for a chronic condition, etc.); or
    • for any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

    Employees might be required to provide medical certification of their condition or their family member's condition to be eligible for FMLA leave. The employee may also be required to recertify with their employer, especially if they are seeking intermittent FMLA leave.

    Personal liability under the FMLA

    While it is no surprise that the company who violates the FMLA can be found liable for violations, the definition of “employer” under the FMLA is more expansive. The FMLA defines “employer” as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer …” 

    Numerous courts have held that the definition of an “employer” includes individual employees within a company (e.g. supervisors and managers). Some courts have ruled that the FMLA’s definition of “employer” is similar to the definition of an “employer” under the Fair Labor Standards Act (FLSA). Accordingly, those courts have relied upon the standards used to evaluate an “employer” under the FLSA and utilized the following four-factor test to determine whether an employee should be held individually liable under the FMLA:

    • whether the supervising employee had the power to fire and hire plaintiff;
    • whether the supervising employee controlled the plaintiff’s work schedules or conditions of employment;
    • whether the supervising employee determined the rate and method of payment for the plaintiff; and
    • whether the supervising employee maintained employment records.

    Court have held that only some of the foregoing factors need to be satisfied for a supervising employee to constitute an “employer” for purposes of the FMLA (and the FLSA).  If an employee is held that he/she constitutes an “employer” and violated the FMLA, that employee is subject to all the same potential penalties as the company (payment of the plaintiff’s lost back pay, lost front pay, emotional distress/punitive damages, attorneys’ fees and costs).

    These rulings highlight some important points. To minimize potential FMLA claims, a company should:

    • consult with a professional to understand the legal requirements set forth by the FMLA;
    • maintain written FMLA policies and procedures (both employee-facing and management-facing) and provide on-going training;
    • ensure that decision-makers have all of the relevant information and are properly trained before they terminate or otherwise discipline employees who have exercised their FMLA rights;
    • periodically review their FMLA policies to ensure that they comply with any changes in the law that may have occurred.

    Unfortunately, companies typically wait to get sued before taking any action. They fix their problems after a plaintiff's lawyer runs them through the ringer, and then only address the problems for which they were sued. The best and most cost-effective solution is a proactive approach—minimize your legal exposure before a problem arises and conduct an internal compliance audit. A preemptive strategy of identifying and fixing issues before a lawsuit occurs saves time and money and limit a company’s exposure under not only the FLMA, but other potential legal pitfalls.

    This article is meant to be utilized as a general guideline for FMLA violations. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.

    Mark Turner can be reached by phone at (440) 571-7773 or by email at mt@gertsburglaw.com.

    An audit of your policies can help you avoid the pain of lawsuits. The Gertsburg Law Firm now offers CoverMySix, a one-stop legal audit for your business, led by award-winning litigators and in-house counsel. CM6 minimizes your exposure to lawsuits, investigations, disgruntled employees and customers, and all the damage that comes with them. Schedule a confidential, no-cost CM6 Vulnerability Check with Gertsburg Law Firm’s CEO, who will walk you through the minefields in your documents and key processes and tell you how to fix them yourself. Call 440-571-7774 or e-mail mc@gertsburglaw.com to schedule your CM6 Vulnerability Check
  • Email
  • Next up: Employers Sitting on Over $10.8M of Uncashed BWC Rebate Checks
  • More in HR
  • Employers Sitting on Over $10.8M of Uncashed BWC Rebate Checks

    Did you receive any rebate checks from the Ohio Bureau of Workers’ Compensation this summer? You better get them cashed!

    More than 5,500 Ohio employers are sitting on $10.8 million in uncashed checks, according to the BWC. They were were distributed as part of a $1.5-billion rebate. The checks have a 90-day life and began expiring Oct. 3. 

    Checks that expire can be reissued, "but that will further delay employers' access to their rebates," said Barbara Ingram, its chief of fiscal and planning, in the release.

    The first checks went out on June 28 and those expired Oct. 3. The BWC said 44 checks from that batch, totaling $143,241.38, remain outstanding. In total, there are 5,547 checks that have not been cashed, representing $10,88,116.60 in rebates.

    The BWC will credit an employer's account the amount of their rebate if check isn’t cashed. Credits will apply to any outstanding balances owed by the employer and a new check will be issued for any remaining credit on the account.

  • Email
  • Next up: Employment Lawsuits: 10 Ways to Safeguard Your Business
  • More in HR
  • Employment Lawsuits: 10 Ways to Safeguard Your Business

    Learn the 10 things you have to know about mitigating exposure to employment-related lawsuits.

    Learn the 10 things you have to know about mitigating exposure to employment-related lawsuits.

    Employment-related lawsuits are difficult to deal with: Emotions run high with personal issues often brought into play. Even when claims are meritless, defense costs can be substantial. The impact on morale and reputation can also be significant. The following 10 steps help reduce these issues in your business and strengthen your defense if an action is brought.

    1. Invest in an employee handbook

    This includes employment-at-will, harassment and discrimination provisions. Every employer should invest in an employee handbook. While this might seem like an unnecessary expense, having policies in place that address termination of employment, discrimination and harassment can reduce potential exposure in employment-related matters. At a minimum, a handbook should include an employment-at-will statement and a zero-tolerance policy toward discrimination and harassment. While sample policies are available, employers should ensure all policies are compliant with applicable state and federal laws. Ideally, an employment attorney should draft and/or review the handbook.

    Example: The COO maintained only one copy of an old, out-of-date handbook that was no longer compliant with state or federal laws in her office. The employees knew it was in the COO’s office and were not comfortable accessing it. When an employee filed a lawsuit, the handbook’s provisions were not enforced because they were (1) in conflict with the law and (2) because it had not been disseminated to employees.

    2. Ensure consistency

    Maintain consistency with a uniform review of all adverse employment decisions. A neutral party within your organization should review all such decisions to ensure the emotional component is minimized, and consequences of poor performance or misbehavior are being consistently evaluated.

    Example: Two supervisors had the ability to hire and fire employees on their respective teams. One strictly enforced attendance rules and terminated two employees who were late to work on three occasions. The other supervisor was more lax, allowing her team to arrive to work late or leave early. The terminated employees, who were both older than 40, filed suit alleging age discrimination, pointing out many employees younger than 40 had also been tardy on several occasions, but weren’t terminated.

    3. Train employees on employment-related issues

    All employees should receive basic training on employment-related issues. Training options are available online and in-person, or you can opt for an attorney to perform training at your organization.

    Train supervisors to:

    • Take every complaint seriously.
    • Immediately refer every complaint to HR or the designated employee and investigate in a timely, thorough manner.
    • Be fair and consistent.
    • Document performance issues and be honest on performance evaluations.
    • Be vigilant to stop conduct that could draw allegations of discrimination or harassment.

    Train non-supervisory employees to understand:

    • There is a process in place to file a harassment or discrimination complaint.
    • These are the types of behavior that are unacceptable in the workplace.
    • There is an employer’s handbook and/or policies and procedures in place.

    Example: Every day, after business close, employees would stay to complete standard end-of-business day duties. This hour was typically filled with sexual banter among the employees. The manager was present, but never took steps to stop these conversations. A new employee was hired and terminated after only a few months when it became clear that she was not meeting required service standards. She filed a discrimination charge, claiming sexual harassment because of what took place at the end of the workday.

    4. Document everything

    Employment claims often come down to one’s word against another’s. When an employer maintains detailed documentation created close in time to incidents in question, it’s a much stronger defense in any subsequent claims. Documentation should be clear, concise, free from emotion or unnecessary commentary, and include performance issues and the resulting consequences. Ideally, the employee should sign the documentation to acknowledge issues were brought to his or her attention. Performance evaluations of all employees should be done honestly. While it might be easier to simply give average or above average evaluations, it’s then difficult to defend any action by an employee where performance is relevant.

    Example: A woman complained to the president that she was being sexually harassed by her supervisor. The president met with the supervisor who promised to stop. The president did not document the conversation. The behavior continued. Months later, the woman was terminated for performance issues. She alleged she was fired in retaliation for complaining about sexual harassment. She kept detailed notes and established she complained to the president.

    She alleged he did nothing as a result and conspired with her supervisor to get rid of her. Because the president had no documentation of his meetings with the woman or her supervisor, her version of events was more believable.

    5. Watch workplace jokes and banter

    Most adults spend a huge chunk of their waking hours on the job and want to be able to enjoy relationships with their co-workers. While a collegial atmosphere is to be encouraged, it can quickly cross the line into actionable behavior. Consider the following comments: “Pregnant again? How many kids do you have?!” “You’re 50? Over the hill!” “As an African-American, what do you think of Obama?” “How was your vacation? Wish I could have seen you in a bikini!” “We need to figure out how to attract Gen-X employees.”

    All were intended as harmless banter; however, they were used as evidence against an employer in a lawsuit brought by a former employee. Be vigilant in ensuring that employee interactions are professional and appropriate.

    Example: A supervisor planned a 50th birthday party for an employee, including an “over the hill” banner, a black cake decorated with a tombstone and numerous age-related gag gifts. Shortly after the party, the employee was fired. He sued, alleging age discrimination, using the events at his birthday party as evidence of his supervisor’s discriminatory intent.

    6. Recognize pitfalls in pre- and post-employment time frames

    The interview process can be challenging as an employer attempts to gain information about prospective employees to determine whether they are suitable for a job. However, it is prohibited to ask about certain topics, such as disability, age, children, marital status, etc., and illegal to make hiring decisions based on such information. Interviewers should focus on asking only work-appropriate questions. Once an employment relationship has ended, care must still be taken. Final paychecks and payment for accrued vacation time must be made in a timely manner based on state law. Calls for references should be handled by one person and dealt with in a consistent manner. No specifics regarding a termination should be discussed with other employees or customers.

    Example: After an employee was terminated for dishonest conduct, the employer received a reference call on the employee. The employee provided a detailed and extremely negative reference that resulted in a defamation lawsuit.

    7. Regulate Internet and email use

    In most workplaces, employees have email and Internet access. Be vigilant that these tools are used in an appropriate manner. Have a policy prohibiting the access of pornographic or inappropriate websites and consider software that blocks inappropriate websites. Employees should be warned emails are never truly deleted and all email communication should be conducted in a professional manner.

    Example: The CFO was engaged in a consensual affair with an employee, communicating multiple times a day via corporate email. When the employee broke off the affair, the CFO continued to email her constantly, begging her to come back. Months later, the employee applied for a promotion and did not get it. She quit and filed a lawsuit alleging sexual harassment and retaliation. Their thousands of emails figured prominently in the case.

    8. Be aware of workplace violence issues

    An employer must be vigilant and safety conscious, understanding they have an obligation to provide a safe workplace and to take reasonable steps to ensure employee safety while on the job, especially in the event of a termination or other event that might cause anger on the part of an employee or even a customer. It might involve hiring security for the day or simply handling a termination privately with respect for the employee’s emotions.

    Example: An employee who was a “cutter” would bring razor blades to work and, when stressed, would go into the bathroom to cut her skin. She told several co-workers, who informed management. Concerned with her bringing sharp objects to work that could be used as weapons, management warned her not to bring them to work and encouraged her to seek counseling. Days later, she was seen with a knife in the bathroom and terminated. She later filed suit for disability discrimination.

    9. Review FLSA status of employees

    The Fair Labor Standards Act requires that employees be properly categorized as exempt (paid a salary and not eligible for overtime pay) or nonexempt (paid by the hour and entitled to overtime pay if work is in excess of a certain number of hours per day or week). Failure to properly categorize jobs can lead to an employer being required to reimburse an employee or class of employees for unpaid overtime allegedly earned over a period.

    Example: A group of employees filed a lawsuit alleging they regularly worked over 40 hours per week and were owed overtime pay.

    10. Open door policy

    A simple way to avoid employment-related problems is open and honest communication. Employees should feel comfortable approaching their employer to discuss employment-related issues. If managers truly have “open doors” to employees, many potential issues can be identified early and rectified before a true problem develops.

    Example: A manager with a volatile personality rarely interacted with his staff. He instructed them to only interact with him by email and not to interrupt him in person with problems. An employee, diagnosed with cancer, needed accommodations to go to chemotherapy and doctor appointments. Uncomfortable with speaking with her manager, she didn’t inform him of her situation and missed many days of work. He terminated her and she sued for disability discrimination.

    Questions? Comments? Contact Josh Holden at ABA Insurance Services via email at jholden@abais.com or call him at 216-903-4597.

  • Email
  • More in HR