The Employment Law Manual

Preface xiii Chapter 1 An Introduction to Workplace Law 1 Chapter 2 What Managerial Personnel Need to Know About the Law of the Workplace 5 A. The At-Will Employment Rule in Theory 5 B. The At-Will Employment Rule in Practice 7 C. Employment Contracts 7 D. Federal and State Employment Discrimination Laws 9 E. Common Law Doctrines Bearing Upon Employment 13 F. Personal Legal Liability of Management Personnel 16 G. Potential Criminal Law Exposure for Workplace Problems 16 H. Potential Legal Exposure from Employment-Related Lawsuits 18 I. Heightened Exposure for Attorney’s Fees in Employment Litigation 19 Concluding Points 21 Chapter 3 Strategies for Effectuating Fair and Just Terminations 23 A. Legal Problems Issues in Terminating Older Employees 24 B. Compliance Issues in Offering Releases to Older Workers 25 C. Severance Obligations in the Termination Process 26 D. How to Effectuate Fair and Just Terminations and Avoid Charges of Discrimination 27 E. Negotiating Releases with Terminated Employees 36 Concluding Points 43 Chapter 4 Avoiding Sexual Harassment Problems in the Workplace 45 A. What Is Illegal Sexual Harassment? 46 B. The Difficulties in Defending Sexual Harassment Charges 51 C. Legal Exposure Stemming from Sexual Harassment 58 D. Strategies to Avoid Charges of Sexual Harassment 58 E. Staying Clear of the Sexual Harassment “Danger Zone” 65 Concluding Points 67 Chapter 5 Strategies for Effective Hiring 69 A. The Importance of Job Applications 70 B. Interviewing Dos and Don’ts 74 C. Best Practices in Interviewing 77 D. Issues with Testing of Applicants 80 E. Proper Documentation of the Employment Relationship 84 Concluding Comments 86 Chapter 6 Getting Employee Orientation and Education Right 87 A. The Role of Personnel Policies and the Essentials of Any Employee Handbook 87 B. Safeguarding Employee Loyalty 96 C. The Importance of Employee Orientation and Training 99 D. Dissemination of Personnel Policies and Employee Handbooks 100 Concluding Points 102 Chapter 7 Strategies for Handling Employee Evaluation and Disciplinary Matters 105 A. Employment Discrimination Problems in the Workplace 106 B. Practical Strategies to Avoid Employment Discrimination in the Workplace 111 C. How Plaintiffs’ Attorneys Put Management Personnel on Trial to Prove Discrimination by Circumstantial Evidence (and What the Process Should Teach Supervisors About Employee Evaluation and Discipline) 114 D. Conducting Effective and Appropriate Performance Evaluations 116 E. Imposing Effective Disciplinary Measures Against Employees 121 Concluding Points 125 Chapter 8 Dealing with Serious Employee Problems and Problem Employees 127 A. Conducting Effective Investigations of Serious Employee Misconduct 128 B. Methods for Conducting Interviews 131 C. Issues with Polygraph Testing and Other Intrusive Investigatory Techniques 135 D. Workplace Privacy Concerns 137 E. Concluding the Workplace Investigation 139 Concluding Points 140 Chapter 9 Managing Workplace Issues Arising from Electronic Communications and Internet Access 143 A. Workplace Laws in Cyberspace 144 B. Risk Management of the Electronic Workplace 148 Concluding Points 150 Chapter 10 Dealing with Substance Abuse and Violence in the Workplace 151 A. Strategies for Managing Employees with Drug and Alcohol Abuse Problems 151 B. Proper Handling of Workplace Violence Situations 154 Concluding Points 156 Chapter 11 Strategies for Managing Nontraditional Employment Relationships: Contingent Workers, Telecommuters, and Independent Contractors 157 A. Risks of Co-employment Liability 159 B. Dealing with Nontraditional Employment Relationships 163 Concluding Points 165 Chapter 12 Additional U.S. Employment Laws That Management Personnel Should Know About 167 A. Wage and Hour Laws 167 B. Laws Regarding Unions 171 C. Immigration Laws 173 D. Family and Medical Leave of Absence Laws 174 E. Safety and Health Laws 175 F. Employee Benefits Laws and COBRA 176 G. Veterans’ Rights Laws 178 H. Laws Impacting Mass Layoffs and Plant Closings 178 I. Affirmative Action Laws 179 J. Laws Regarding Employee Health Information 182 K. Workers’ Compensation Laws 184 L. Unemployment Insurance Laws 185 Concluding Points 186 Chapter 13 Understanding the Keys to Proper Personnel Documentation 189 A. How Properly Maintained Documentation Can Assist in Employee Relations and Preventing Employment-Related Lawsuits 190 B. Avoiding Record-Keeping Hotspots 194 C. Document Retention Policies 196 Concluding Points 197 Chapter 14 What Employers Should Know About the Process of Defending Employment-Related Litigation 199 A. The Litigation Process 199 B. The Stages of a Lawsuit 203 C. Settling and Resolving Employment-Related Litigation 207 D. Workplace Arbitration 209 Concluding Points 213 Chapter 15 Employment Practices Liability Insurance 215 A. Why Most Business and Personal Insurance Does Not Apply to Employment Practices Liability Claims 216 B. The Nature of EPLI Coverage 218 Concluding Points 222 Chapter 16 Conclusion 223 Glossary of Employment Law Terms 225 Appendix 1: Pre-termination Checklist 237 Appendix 2: Exit Interview Form 241 Appendix 3: Checklist of Negotiating Items for Employee Releases 245 Appendix 4: Sample Release Form for Use with Employees Under the Age of 40 249 Appendix 5: Sample Release Form for Use with Employees Over the Age of 40 253 Appendix 6: A Guide for Employers on Conducting an Internal Investigation of an Employee’s Complaint of Sexual Harassment 257 Appendix 7: Sample Offer Letter 267 Appendix 8: Sample Equal Employment Opportunity, Nondiscrimination, and Anti-Harassment Policy 269 Appendix 9: Sample ADA/Reasonable Accommodation Policy 275 Appendix 10: A Guide to Responding to an Employee’s Request for a Reasonable Accommodation Under the Americans with Disabilities Act 279 Appendix 11: Sample Personnel Policy on Confidentiality 289 Appendix 12: Sample At-Will/Management Rights—Employee Acknowledgment Form 291 Appendix 13: Sample Employment Code of Conduct 293 Appendix 14: Sample Workplace Ethics Policy 303 Appendix 15: Sample Religious Accommodation Personnel Policy 305 Appendix 16: Sample FMLA Policy and Forms 307 Appendix 17: Sample Neutral Leave of Absence Policy 321 Appendix 18: Sample Open-Door Policy 323 Appendix 19: Sample Orientation Form 327 Appendix 20: Sample Disciplinary Policy and Guide for Managers on Imposing Discipline 329 Appendix 21: Sample Personnel Policy on Workplace Violence 335 Appendix 22: Independent Contractor Agreement 339 Appendix 23: Workplace Agreement to Mediate and Arbitrate All Employment Disputes 345 Acknowledgments 349 About the Author 351 Index