When a new employee joins your company, are you taking measures to help them adapt to their new workplace? 

Most companies have some type of new hire orientation and a process to train new workers to perform their job duties — but sometimes the important assimilation process itself is overlooked.  This can turn a promising new hire into a failure!

Onboarding can save your business money:

Employee onboarding is the term used to describe the process of assimilating new employees into a company.  There are good reasons to invest the time in employee onboarding.

It is expensive to recruit and train a new employee.  The Saratoga Institute estimates the cost of turnover, depending on the level of the employee, to range from 30% to 150% of the employee’s annual salary.  The costs include recruiting, training, disruption to the workplace, and the time it takes for the new employee to become fully competent in their new position.

Some basic steps for successful onboarding:

When you hire a new employee, you want them to be successful.  This takes a more thorough new hire orientation than simply the signing of forms and the distribution of an Employee Handbook filled with rules.

• Prior to the start date, provide the new hire with information about the company.
• Refer them to the website and ask them to familiarize themselves with the company’s products or services.
• Send them marketing materials to read.
• Consider providing them with some of the forms they need to sign in advance, so the first day is not filled with page after paperwork to fill out.

If there’s time, invite the new hire and their family to drop by for a tour of the office or facility.  There’s a lot less mystery in the new job when the employee’s spouse and/or children have seen their workspace and met their coworkers. Starting a new job is very stressful, and a supportive family is critical to success for the employee.

During the first few weeks, new employees need to know several things in order to get off to a solid start:

• Their duties
• How their performance will be measured
• Their deadlines
• How they will receive feedback

Continuous feedback helps new employees succeed:

New employees need to have regular feedback on their performance.  Many companies provide a review at 90 days, sometimes resulting in an employee learning for the first time that they’ve been doing things wrong, and now their job is in jeopardy.

By providing constant feedback during the first few months, an employee will have the opportunity to continuously correct and align their performance to the company’s culture and expectations.

Give your new employee a mentor:

A mentor or buddy system is a great way to help a new employee get off on the right foot.

The mentor shouldn’t be their supervisor, or a person in authority over the employee.  The mentor does need to be someone who has a good work ethic, understands the company’s policies, procedures and culture, and has a positive and friendly attitude.  In addition, they need to be good at communicating, and have the time to be a mentor.

The purpose of the buddy is to help immerse the new employee into the company more quickly, by giving them a person they can go to with their questions and problems, such as, “How do I get this form approved?” or “Who’s responsible for this process?” or “I’ve jammed the copier and can’t remember how to get it unjammed.”

The buddy might want to call the new employee prior to their start date, in order to provide some information about the company culture and answer questions about what to wear on the first day, where people eat lunch, where to park, and other information that new employees are concerned with.

Introduce new employees to your company’s culture:

When we hire a new employee, we hire someone who has the skills, experience and aptitude to do the job.  More than likely, they’ve performed a similar job in the past.  This creates an assumption that the new employee will be successful in our company as well.  But each company’s culture is unique and every company has its own way of doing things.

It’s very important that new employees are fully informed of your company’s culture.  They need to understand the inside jokes and acronyms or slang used.  Inform them about the social activities that take place, such as company baseball teams, informal get-togethers after work, latte runs, birthday celebrations, charitable activities the company supports, etc.

Talk about the company’s unique environment. For example, if you have a laid back fun environment, make sure that you talk about what the limits of behavior are, and what expectations exist for performance.

Think of it like this:  What did you learn on your own after being at a new job for a period of time, that you wish you hadn’t had to learn the hard way?

Prepare employees for the onboarding of a new hire:

Making a new employee feel welcome and helping them get off to a good start involves more people than the HR department and their supervisor.  The employee’s co-workers are a critical component as well.

Sometimes, there is an internal candidate who applied for the position, and was passed over.  This is an opportunity for resentment to simmer.  Their sour grapes can be shared with their friends in the company, which can set the new employee up for failure and unhappiness in their new job.

If office politics and relationships possess the potential to undermine a new hire’s success, you must address it in advance.  Anticipate this possibility, and talk with internal employees in advance.  Explain why the hiring decision was made, and help them understand their own growth opportunities within the organization.

Make sure everything is set-up for a new employee before they arrive:

At one point or another, most of us have experienced a scenario like this on our first day at a new job:

Everyone’s super busy, and they barely have time to talk with you.  They’re not really sure where you’re supposed to sit, but they find you an empty desk.  They apologize and tell you that they think your computer is on order.  They tell you to look in the file cabinet for supplies, and to call so-and-so to get your phone set up.  Except you haven’t been given so-and-so’s number and you don’t even have a phone you can use to call them!

You leave at the end of the day feeling like they had no idea that you were coming, and that they couldn’t care less about you.  You can’t help but wonder if taking this job was a mistake.

That’s a terrible way for a new employee to feel!

The lesson to be learned is, be ready for your new employee.  Have their desk set up, with all necessary equipment and supplies on hand.  Provide them with a list of employees and departments, detailing who does what.  On day one, they should have all of the tools they need to perform their job.

The wrap-up:

Remember the old television show The Love Boat?  Think about the happy faces of the passengers on the Love Boat, as the crew lined up to welcome them onboard the ship.  What were the words in the theme song?  “Come aboard, we’re expecting you!”

While I’m not suggesting that the term “onboarding” came from The Love Boat TV show, the point is, you want your new employees to feel as welcomed and expected as those folks did.  And, hopefully, their tenure with you will last at least as long as that show did!

Originally published in the Kitsap Peninsula Business Journal.

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What is wage theft?  Wage theft occurs when workers do not receive their legally or contractually promised wages.  It can involve:

• Non-payment of overtime
• Failure to pay a worker their final paycheck in a timely fashion
• Not paying for all hours worked
• Failure to pay minimum wage
• Misclassification of employees
• Not paying an employee at all

Simply put, “wage theft” is a fancy new name for violating wage and hour laws.

Washington State makes it easy for employees to report wage theft:

The Department of Labor & Industries enforces Washington’s wage and hour laws.  They make it very easy for workers to file a complaint against an employer.  Employees can simply complete a form from L&I’s website and turn it in to any L&I office.

This means you must be careful to obey compensation laws, because mistakes can come back to bite you even years later!

You must pay employees for all time worked.  You cannot refuse to pay an employee because they’ve waited too long to turn in a time card, or didn’t notify you in a timely manner that they weren’t paid their agreed upon wage.  It doesn’t matter if it’s been two years since they worked for you, and you can’t remember now whether or not they actually worked the hours they’re claiming. 

In Washington, employees can file a wage claim complaint up to three years after the date that their wages were due.

Wage laws & unreturned company property:

Under Washington State law, you must pay a terminated employee at the next regularly scheduled pay day.  If you do fail to pay your terminated employee on time, they may sue you in civil court and be entitled to double damages.

While you do not have to give an employee a paycheck on their last day of work, you may not withhold their paycheck until they have returned company property.

If your employees are issued company property, such as safety equipment, laptop computers, cell phones, etc., you should have them sign an agreement containing:

• Acknowledgement that the employee will return all company property upon termination of their employment
• Information about the monetary value of the items
• Acknowledgement that the employee will repay the company for any items not returned
• Acknolwedgement that the cost of unreturned company property can be withheld from the employee’s final check

Be sure you have your company attorney review this agreement before you put it into use!

You should be aware that the Fair Labor Standards Act prohibits employers from making deductions from a non-exempt employee’s paycheck, to the extent that their wages fall below the minimum wage.  In these instances, recouping your losses in Small Claims Court may be your only option.

Wage theft and unpaid overtime:

Sometimes overtime pay becomes an issue for employers.  In Washington, overtime constitutes any hours worked over 40 within a defined work week.  Sometimes employers dispute whether their employee had pre-authorization to work more than 40 hours during the week.  Nevertheless, if overtime hours were worked, they must be compensated, regardless of if they were approved or not.

For more detailed information about this, see our guide to compensation laws in Washington State.

Wage theft caused by employee misclassification:

Wage theft can also occur if an employee is incorrectly classified as “exempt” from the Fair Labor Standards Act, resulting in their not being paid correctly for all hours worked.  The same could be applied to misclassifying a worker as an independent contractor in order for a business to avoid paying workers’ payroll taxes, workers compensation, and unemployment taxes.

For more information, check out our article about the dangers of employee misclassification.

The wrap-up:

The Department of Labor and the IRS are cracking down on businesses who practice wage theft by sharing information among state and federal entities.  Washington state is voluntarily participating in this program. In addition, the city of Seattle passed an ordinance making wage theft a gross misdemeanor for businesses within the city’s limits.

L&I collected more than $2 million in unpaid wages for employees in 2011!  Legislators across the board, local to national, are eager to protect workers’ rights to be paid the wages they deserve.  Watch for continuing dialogue on wage theft, and additional legislation likely to come our way.

Go ahead and laugh, but it’s true.  And if you are a helicopter parent, you would probably jump at the chance to go to work with your child.

Helicopter parents are people (primarily the parents of Gen Y or Millennials) who hover over their children with overprotective, over-involved fervor, trying to knock down any and every obstacle in their child’s path to success — even when those children become adults and move into the workforce.

Real-life examples of helicopter parents interfering at work:

Have you encountered helicopter parents in the workplace?  We certainly have.  We’ve seen many dismaying examples over the years.

For instance, we recently had to terminate a 24 year old woman for repeated and excessive absenteeism, after warning her multiple times about the consequences of consistently failing to come to work.

After her termination, her father dropped in to speak to her supervisor!  He was anxious to discuss the circumstances in her life that caused the attendance issues, and wanted to request she be given another chance.

On another occasion, I had an email exchange with an eager job seeker about an opening we had.  After several emails, I left the young man a voice mail message to set up an interview.  I was surprised when a very unenthusiastic youth called me back, bewildered by my call.  I reviewed our string of email communications with him, and he said, “Oh, that’s my mom.  She’s been sending out emails from my account, trying to get me a job.”

It probably won’t surprise you to hear that he didn’t show up for the interview.

We’ve had parents watch over shoulders and provide guidance while their offspring completed job applications.  We’ve had them wait in our lobby during the entire interview process.  We’ve had parents call to discuss compensation and benefits issues, disciplinary issues, and terminations.  We’ve even been threatened by angry parents.

The motivations & consequences of helicopter parenting:

If you’re a parent, of course you can understand the desire to see your children succeed, and the particular pressures young adults face now due to this economy.  Statistics today are daunting for our young people:

• High school dropouts face an unemployment rate of 12.6%.
• The unemployment rate for those without college diplomas is about 8%
• A recent survey by Pew Research Center shows that 61% of adults between 25 to 34 know friends or family members that have moved in with their parents due to economic constraints

With social networking playing such a large role in recruiting today, it is even more important than ever to utilize your connections and circles of influence during a job hunt.  It’s easy, therefore, to see why parents get into the mix, utilizing their own business connections to assist their children with finding great job opportunities.

Unfortunately, being a helicopter parent can cast adult children in a poor light, negatively impact their employment, and leave them unprepared to handle the inevitable lows all adults face over the course of their working lives.

When a parent inappropriately attempts to intervene in a workplace on behalf of their adult child, it inadvertently raises questions about their child’s maturity and suitability for the grown-up responsibilities and demands of a job.  Helicopter parents of adult children stand to do far more harm than good by buzzing their kids’ employers.

How will your business handle helicopter parents?

Your business can choose how to deal with the helicopter parents you encounter.  Eye-rolling and laughing at the unexpected absurdity of having to deal with an adult employee’s mommy or daddy is certainly one approach.  However, some businesses try to address the problem of helicopter parenting with more direct tactics.

You can go the way of Google, and invite parents in for a day.  Or do as Ernst & Young did a few years ago, and create “parent packs” for the parents of your new hires so that they, too, understand the company’s benefits, policies, and culture.  The trick is to respect your employees’ and applicants’ rights to confidentiality, while maintaining a more modern twist on the family-friendly workplace.

Perhaps on April 26^th we’ll change it up, and instead of bringing our kids to work, we’ll all just celebrate Bring Your Entire Family to Work Today.

• Employers will need to fill more than 46 million jobs in the United States
• Almost two-thirds of those jobs will require some type of post-secondary education

Our major employers are telling us that their number one concern is access to a qualified educated workforce.

Can we solve the problem in time to stay competitive and attract and retain the jobs we want in our state?

Washington State has created the Lifelong Learning Program to encourage workers to continue their educations with the assistance of their employers.  This voluntary employee benefit program, which is the first of its kind in the nation, may give our state’s employers and employees the edge they need to succeed!

How the Lifelong Learning Program works:

Any Washington employer will be able to register to participate in the voluntary program.

• An employer may choose to participate in the program by matching at some level an amount that an employee chooses to contribute to their lifelong learning account.
• The employee takes responsibility for advancing in their career by establishing a career development plan, which they also have a financial investment in.
• The employee may utilize the money for costs associated with their training, such as tuition, books, and supplies.
• The account is portable, and the employee can take the money with them if they change jobs.

The program will be administered through the state’s Workforce Training and Education Coordinating Board.  They, in turn, may partner with financial institutions and other public, private or non-profit organizations.

Since 2009, a pilot program has been running in Thurston, Lewis, Pacific and Grays Harbor counties, funded in part by the Association of Washington Business.  The new statewide program will go into effect June 7^th.

An educated workforce is attractive to businesses looking to relocate, as well as businesses who are expanding their workforce.  It’s a win-win for workers and employers to be able to invest in their mutual success!

It’s always a good idea to review employment-related bills, whether or not they pass, as they will no doubt resurface again — and may even pass in a session where the budget moves off the front burner.

Requiring Use of E-Verify

The proposed bill would have prohibited the state, counties or cities from requiring a private sector employer to use E-Verify, the government’s electronic employment verification system.

Illegal immigration is always a hot topic and some cities and counties in Washington are now requiring employers to utilize E-Verify in order to obtain contracts with their municipalities.  On the other hand, E-Verify itself has many critics who claim that it is fraught with errors and costs employees and employers time and money to correct.

The bill did not pass, but this issue is unlikely to go away.

Mandatory Paid Sick Safe Days

Following in the footsteps of Seattle, a Mandatory Paid Sick/Safe Days bill was introduced, which would have required employers with 5 or more employees to provide employees with paid days off to be used for illness, domestic violence-related leaves, and during public health emergency closures.

Although it didn’t pass, as the economy improves and it is perceived that businesses are more financially stable, we’re likely to see the issue again.

Altering Minimum Wage

There were many bills proposing to alter Washington’s Minimum Wage laws.  One of them, HB 2497, would have allowed for the consideration of tips in determining the minimum wage rates for restaurant employees.  A “tip credit” is common in many states, and restaurant owners, operating with lean margins, hoped for passage to put them on equal footing with other “tip credit” states.

This bill, along with bills providing for a “training wage” and those altering how the minimum wage is figured, also didn’t pass.  With the nation’s highest state minimum wage rate, we are likely to continue to see a variety of bills proposing to soften it’s affect on businesses.

Relying on L&I’s Advice

Employers are not always aware that they do not have a good faith defense if they act based on information provided to them by the Department of Labor & Industries.  HB 1532 would have allowed employers to demonstrate their reliance based on formal written guidance, interpretations, policies, rules, etc. provided to them by L&I employees.

It may seem inconceivable that our legislators would not provide protection to employers when they ask for guidance on regulations from the state’s agency that is responsible for overseeing and enforcing laws pertaining to workers’ safety, working conditions, and wages — but for some reason they didn’t.

I found some irony to this Peter Drucker quote included in L&I’s Strategic Plan, “Quality in a service or product is not what you put into it.  It is what the client or customer gets out of it.”

Discrimination Against the Unemployed

There is a lot of buzz right now about companies that discriminate against unemployed workers, stating that they will only consider working applicants for their jobs.  The proposed bill, depending on the version passed, would have made discrimination against the unemployed an unfair labor practice, equal to racial, religious and gender discrimination, amongst others.

This topic is a popular one at the federal level, so it seems likely we’ll be looking at this type of legislation again, although it was a consensus amongst HR professionals in Olympia for HR Day on the Hill that this is a “much-ado about nothing” issue.

Workplace Bullying

Another bill that mimics bills introduced around the country was the Workplace Bullying legislation.  It would provide employees legal remedy for being subjected to an “abusive work environment.”

Although no one wants to see employees subjected to bullying, many business people feel that current laws prohibiting harassment are sufficient in this area, and ultimately the legislation stalled.  But with the Workplace Bullying Institute’s corporate headquarters in Washington state, we will likely visit this issue again.

The wrap-up:

Stay tuned as the Legislature finishes their special session.  They could always send us an HR curve ball!  Barring that, there’s always next year, when some of these bills will be back in some form.  But, for now, at least as far as employment law goes, businesses got a pass this session.

One way that companies have cut employment costs is by utilizing a contingent workforce, which includes independent contractors.

While using independent contractors can save a business the costs of employment taxes, overhead, and employee benefits, the practice is not legal in all circumstances. 

Businesses that don’t understand the difference between employees and independent contractors run the risk of finding themselves in some seriously hot water.

Businesses that misclassify employees as independent contractors have a bullseye on their backs.

While businesses are looking for ways to reduce their costs, the government is looking for ways to raise revenue. Creating new tax laws and revising current ones aren’t the only ways for the government to raise revenue.  It has another means at its disposal:  stringently enforcing revenue-producing laws that are already on the books.

This means cracking down — and cracking down hard — on the misuse of workers as independent contractors, to ensure that payroll taxes are appropriately being paid on a state and federal level.

• In February, when President Obama announced his 2013 Budget, it included special funding for the Department of Labor to “detect and deter” companies from misclassifying their employees as independent contractors. 

• In 2010 the GAO provided Congress with a report which urged agencies to address the issue, both federally and on a state level.  According to the GAO, in 2007, states found over 150,000 misclassified workers, and in 2008 the IRS assessed over $64 million in taxes and penalties for worker misclassification.

Why does the government care about worker misclassification?

Both the federal and state governments have a vested interest in the misclassification of employees as independent contractors.

Companies don’t pay payroll taxes on independent contractors, nor do they pay unemployment insurance tax or workers compensation tax.  At the end of the year, independent contractors are liable to pay their entire share of social security and Medicare taxes themselves.

Furthermore, independent contractors are not eligible to collect unemployment insurance when their positions end, and if injured on the job, they are not covered by workers compensation.  Oftentimes, companies find themselves the subject of an audit when a former independent contractor files for unemployment insurance, or files for workers compensation, after being injured on the job.

It’s understandable that the government is concerned that workers be classified properly under state and federal laws.

Why are companies tempted to classify employees as independent contractors?

It all boils down to cost savings.

For starters, independent contractors are not covered by the myriad federal and state leave laws.  Nor are they covered by the Fair Labor Standards Act, or other acts that relate to employment.

Companies don’t have to withhold income taxes from their checks, pay social security or Medicare taxes, or pay for workers compensation or unemployment insurance.  Independent contractors do not qualify for minimum wage or overtime pay, nor do they receive any employee benefits, such as health insurance, 401(k), holiday pay or sick pay.

How to tell the difference between an employee & an independent contractor:

Although it may be tempting to assume that a worker is an independent contractor, the IRS has very strict guidelines on what constitutes an independent contractor.  The worker must meet all of the prescribed tests in order to qualify.

The first area to consider is what type of control you have over your worker’s behavior.  Do you tell the worker when and where to do the work, what types of tools and equipment to use, where to get supplies and service, which workers will assist them in the work, and what order to follow in performing the work?  These are examples of an employee vs. an independent contractor. The more instructions given to a worker, the more direct the evaluation of their performance and the more training they’re provided, the more likely it is that the worker is an employee.

The next area to consider is the worker’s financial situation.  An independent contractor typically has a significant financial investment in equipment, whereas an employee does not.  An independent contractor often incurs unreimbursed expenses, and has the potential for incurring a loss.  Also, an independent contractor makes their services available to others in the marketplace through advertising.  The method of payment you use is also indicative of the person’s status, as an independent contractor is usually paid for the job, while an employee is paid by the hour or on a salary.

The last area to consider is the type of relationship you have with someone who is doing work for you.  Employees are often given benefits, are governed by an employee handbook, and they have an ongoing relationship with the business.  An independent contractor is generally governed by a contract, has no benefits, and is hired for a specific project or service for a defined period of time.

Washington State’s “economic realities” test:

In Washington State, the Department of Labor uses the “economic realities” test to determine a worker’s status, which is different from the Fair Labor Standards Act.

The “economic realities” standard has six factors:

• Degree of control the company has over the worker
• Worker’s opportunity to make a profit or incur a loss
• Worker’s investment in equipment or materials
• Degree of skill required to do the job
• Permanence of the working relationship
• Whether the service rendered is an integral part of the employer’s business

An example of an independent contractor might be a bookkeeper who works out of his home office, processing the accounts for several small businesses.  He would use his own computer and software, working on his own schedule, and would charge a monthly fee for his services, regardless of the amount of time it took each month.

On the other hand, if a company had a bookkeeper in-house, who was required to be onsite each day for certain hours, utilizing the company’s equipment and software, and working as part of a team, this would probably not pass the bright line test.

In 2004, a group of FedEx drivers filed a class-action lawsuit for overtime wages and uniform expenses, stating that they were not “independent contractors,” but rather employees.  The Washington Court of Appeals rules that due to FedEx’s “right to control” the manner in which the drivers performed their jobs, they were indeed employees, and thus the “economic realities” test was born for Washington state.

The benefits of independent contractors, employees, and temps:

Independent contractors:  There are obviously benefits to utilizing true independent contractors.  It reduces overhead, as they can be utilized on an “as needed” basis.  Since they are in business for themselves, they do not have to be provided with benefits, and often work from their own offices, eliminating the need for adding workspace and equipment.  But you will give up some control over their performance, and may not have the loyalty that you would have in a dedicated employee.

Employees:  When you hire an employee, you can utilize them for many projects, tapping into all of their talents and expertise, and asking them to wear many hats.  They become part of your team, adding to your human capital, and because they are dedicated to your company, they are focused on helping the business grow and prosper in order for their own career to advance.

Temporary workers:  If you’re in a pinch, one way to strike a balance between your budgetary needs and the government’s strict employment tax regulations is to use temporary staffing.  By using someone on a temporary basis through a staffing company, you can enjoy the flexibility of an independent contractor type relationship, while the staffing agency takes on the responsibility of paying the appropriate taxes and employment expenses, including workers compensation, unemployment insurance and even benefits.

The wrap-up:

The misclassification of employees creates an enormous tax gap, and in these times when governments are badly hurting for revenue, they cannot afford to let any dollars slip through their fingers.  It may be tempting to reclassify employees as independent contractors in order to cut costs, but in the long run, the government will get their money.

Trust me, fudging someone’s employment status isn’t worth the additional penalties that your business will incur.  As is always the case in employment, it’s better to play by the rules up front, no matter how inconvenient they may seem, than it is to pay the price for breaking them.

Originally published in the Kitsap Peninsula Business Journal.

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Unfortunately, there are times in the workplace that words and gestures are not appropriate or welcome, and which cross a line and put a company at risk of charges of sexual harassment.

Some facts about sexual harassment:

Sexual harassment is actually a type of sex discrimination under the law, and it violates Title VII of the Civil Rights Act of 1964.

Sexual harassment has several components under federal law:

• It must be unwelcome conduct or communication.
• The harassment must be based on the person’s sex.
• The employee must feel that the harassment affected the terms or conditions of their employment.
• While the perpetrator might be someone other than the company’s owner, the victim must prove that the employer was legally responsible for the perpetrator’s actions.

The U.S. Equal Employment Opportunity Commission (EEOC) reports that in 2007 it received 12,510 charges of sexual harassment, 84% of which were filed by women.  Of these charges, they resolved 11,592 and recovered $49.9 million in monetary benefits for the charging parties (not including what the lawyers made).

Types of sexual harassment:

Some types of sexual harassment are very obvious.  An example of this would be “quid pro quo” harassment, where an employee is forced to submit to sexual advances in order to be promoted or to retain their job.  Other types of harassment are more subtle.  For example, sexual harassment can take place when a business has an atmosphere of derogatory jokes based on gender, because this creates a hostile environment.

Although 84% of the claims the EEOC received in 2007 were made by women, it’s clear that men can be victims too.  It is also possible for the harassment to be “same-sex”.  This type of harassment does not have to be homosexual in nature, but simply needs to meet the sexual harassment criteria of being based on sex, being unwanted, and affecting the victim’s employment.

Sexual harassment and employer liability:

Employers are responsible for the actions of their supervisors, and thus have liability under the law.  The extent of this liability depends on a variety of factors.  One factor is whether there was an employment action taken against the victim.  An employer can be subject to strict liability if there is a significant change in a victim’s employment, such as termination or demotion.  But if no tangible employment action was taken against the employee, then the employer may have some defense to protect themselves, and this is where prevention comes into play.

An employer’s liability is greatest when the harasser is in a position of authority or supervision.  However, the liability exists whenever there is an atmosphere of harassment, whether it stems from coworkers, vendors, or customers.

Employees need to know that harassment will not be tolerated, and written policies should confirm that.  The company must follow through whenever they are aware of an atmosphere of harassment, or whenever a complaint has been made.

The importance of anti-harassment policies and complaint systems:

• All companies need to have a strong Anti-Harassment Policy in place, which is clearly communicated to all employees.  This policy can be pulled from the Employee Handbook, and all employees should sign an Acknowledgment Form that they have received and reviewed the policy.

• The company also needs to have a comprehensive system in place for employees to communicate their complaints of harassment.  The system should provide them with multiple avenues of communication, in the event that the harasser is their supervisor, or a person in a position of authority.  Complaints need to be investigated thoroughly and dealt with immediately to protect the company from liability.

• Communication and training are essential elements in your program.  In addition to your written policy, which all employees will sign, share this information on a regular basis with all of your employees in meetings.  Discuss the atmosphere that you expect in your workplace.  Express your strong disapproval of inappropriate behavior and explain the discipline policy for harassment.

Be sure your employees know how to bring forward their complaints and assure them of their right to as much confidentiality as possible, and that they will not experience retaliation for coming forward.  Provide your supervisors with the training they need to handle harassment situations and complaints.  As always, maintain excellent records of your preventive measures and of any investigations and remediation that take place.

Make sure you’ve got the right insurance:

Another important tool in your business toolkit is insurance.  The EEOC tells us that even when an employer undertakes every proper preventive measure, there are no “safe harbors.”

Any company that has employees should invest in an Employment Practices Liability Insurance policy.  This insurance provides protection against a wide variety of employment related practices, including sexual harassment, discrimination, wrongful termination, and many other employment related claims. 

The best protection is always prevention, but as with everything else, you want to know that in the end, you have the insurance protection you need to cover your company’s assets.

The wrap-up:

The topic of sexual harassment in the workplace flew to the forefront last year as allegations surfaced about presidential candidate Herman Cain.  Regardless of your opinion about his innocence or guilt, his employer, the National Restaurant Association, states they settled with his accusers without admitting to his guilt, which is not an uncommon practice.  As business people, we should ask ourselves, could this happen in my business?  What lessons can I learn from this?

We need to all review our own internal business practices to be sure that we aren’t vulnerable to sexual harassment claims, and review our insurance to be sure that we’re adequately covered.  We all want our employees to be safe, happy, and productive in the workplace.  We also want our businesses to be well protected!

Originally published in the Kitsap Peninsula Business Journal.

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You’re on Facebook and you happen to notice that one of your employees has written a comment about how they dislike the company’s new dress code.  In fact, they think it’s really unfair that the company has made these changes and they’re really very unhappy about it.  Several other employees quickly chime in with their own gripes about the dress code, and a heated discussion ensues. 

You feel like the company’s reputation is being harmed by the conversation, and the information being discussed in this public forum is confidential to your business.  Can you discipline your employee? 

The National Labor Relations Board says NO!

Employees have the right to discuss working conditions online:

Your employees are exercising their rights to discuss working conditions, a protected concerted activity.  The National Labor Relations Board (NLRB) has deemed these to be akin to “water cooler conversations” that might take place in the office.  They see little difference between social media “conversations” and employees’ face-to-face conversations.

The National Labor Relations Act applies to all workplaces, not just unionized ones:

Many employers think only unionized workplaces are governed by the National Labor Relations Act (NLRA).  But the truth is, all employees have rights under the NLRA, and that’s where protected concerted activity comes in.

• Your employees are protected when two or more employees address pay issues, discuss work-related topics such as safety issues with each other, or when one employee speaks to their employer about workplace conditions on behalf of other employees.
• Employees exercising their rights under the NLRA cannot be fired, demoted, transferred, or have any adverse action taken against them.

Social media and protected concerted activity:

Social media has turned protected concerted activity on its head.

Obviously, it’s one thing when an employee or two sit down in the office to talk about their pay or their concerns about safety, and it’s another issue entirely when those concerns are published on a Facebook page or Tweeted to hundreds of followers!

Social media is a wild and woolly new frontier, which is still being explored in a legal arena–but the NLRB has started to define it for employers.  It’s quickly becoming clear that employers’ social media policies must not be overly restrictive, or they will not hold up in court.

Here’s what companies can prohibit employees from writing online:

The NLRB recognizes that employers have the right to protect the company’s confidential and proprietary information online. Companies can also prohibit employees from using vulgar or obscene language when talking about coworkers or the company.

It is also permissible to prohibit the use of social media in ways that would violate certain company policies and put the company at risk for discrimination claims.  For instance, employees cannot make posts about coworkers that are in violation of the employer’s policies against discrimination, harassment or hostility based on a protected class (such as race, religion, sex, ethnicity, nationality, age, disability, etc.).

However, any broad prohibition against employees discussing their jobs or their employer on the internet will not hold up under legal scrutiny.

The wrap-up:

The bottom line for the NLRB is that an employer cannot have such a broad policy that it prohibits any activity that’s protected by federal labor laws.  But if an employee just wants to generally gripe about their employer on a public forum, and their complaints are not made in relation to protected activity amongst a group of employees (a group can be as small as two people), their comments online may not be considered a protected activity.

Clearly, this is a troublesome gray area that employers will be struggling to navigate through for many years to come.  Our best bet right now is to enforce thoughtful, nuanced policies that respect current laws, and to keep a close eye on the outcomes of these kinds of court cases.

The EEOC’s original position was that if a company required a high school diploma for a job, it might be a violation of the Americans with Disabilities Act.

Their thought process seemed to be that there are jobs (they used janitorial positions as an example) that could be performed by someone who doesn’t have a high school diploma, and that by requiring a high school diploma, a company might be discriminating against someone who didn’t graduate due to a learning disability.

Understandably, the business community reacted quickly and loudly to the EEOC’s actions, which seemed to undermine businesses’ basic abilities to set minimum standards of qualifications for their workforce!

Here’s the EEOC’s new opinion on employers requiring high school diplomas:

In light of the forceful push-back from businesses, the EEOC has backed off its strong stance, and is now clarifying, and apparently modifying its strong initial approach.

• The EEOC is reassuring businesses that they absolutely may adopt a requirement that job applicants must have a high school diploma.
• They go on to state that they do not want to provide protections or incentives to people who simply decide not to complete their high school educations.
• They do want to provide protections to job seekers with genuine learning disabilities that prevent them from attaining a high school diploma.

In instances where a learning disability prevented a job seeker from obtaining a high school diploma, the job seeker could still apply for a position with a high school diploma education requirement, and would then have to:

• Make the business aware of their disability
• Provide documentation of the disability and that it actually prevented them from achieving their diploma
• Prove in some other way that they still have the qualifications to perform the duties of the job

The bottom line:

I think the bottom line here for companies is that you can still set some minimum standards for your workforce.  Just keep in mind that there are some folks that have extenuating circumstances.  When you draw a line in the sand, remember that the waves may soften your line.  You’ll need to use the human touch to apply your rules to the human beings that apply for your jobs.

“How many friends do you have?”

Have you asked this question in a job interview yet?  If not, you may find yourself doing so sometime soon.

As marketing and recruiting for our companies is accomplished more and more through social media, the ability of our employees to reach others through their own social media networks becomes more important.

This raises a very important question:  When an employee leaves the company, can they take their social networking “friends” and followers with them?

There have been a couple high profile cases in the news lately that may start laying legal groundwork in this arena.

Tug-of-war over Twitter followers:

Noah Kravitz worked for Phonedog, where he had a Twitter account, @PhoneDog_Noah.  When Kravitz left the company, he changed his Twitter account name, effectively taking the account’s 17,000 followers with him.

The company sued Kravitz, claiming they had the rights to the followers, not Kravitz.  They estimated that each of the Twitter followers were worth $2.50 per month to them.  Eight months after Kravitz left Phonedog, the company filed a lawsuit against him for $340,000, which they estimated was the total value of having 17,000 followers, worth $2.50 each, for eight months.

This case is still working its way through the courts, but is being closely watched by many.

LinkedIn custody battle:

LinkedIn also brings up interesting dilemmas.  Linda Eagle, an executive who worked for Edcomm, had a LinkedIn account that an Edcomm employee created and maintained for her.  When she was terminated from the company, her password was changed and she was locked out of her account.

She sued claiming an invasion of privacy by misappropriation of identity.  The company countersued with a claim that their policy required employees to create and maintain LinkedIn accounts, of which the contents were to be returned to the company.  Eventually Eagle retrieved her account, but the court upheld Edcomm’s claim that Eagle misappropriated their idea.

What you can do to protect ownership of your company’s social media followers:

We can only begin to imagine the areas of employment law that need to be ironed out regarding who has the rights to friends and followers in the workplace.

Many corporate recruiters are developing vast networks on their LinkedIn accounts for the purpose of filling their company’s positions.  These connections are made on their employer’s time and equipment, utilizing their position with the company.

When they leave for a new job, do they have a right to take those connections with them, or is that a trade secret belonging to their employer?  The same question can be applied to the sales team and other staff that depend on strong networks to perform their jobs.

The solutions are not simple.  While we wait for litigation to determine best practices, internal policies can help to protect your business.

• Incorporate social media into your company’s definition of trade secrets in your confidentiality agreements and your non-compete agreements.
• If you hire an employee because he or she is particularly adept with social media and/or blogging, agree together in advance, in writing, what will remain the property of the individual and the property of the corporation.
• Whenever it’s possible, create social media accounts in the name of the business and have more than one administrator on the account, so ownership is spread between multiple employees.
• As part of retrieving company property during an employee’s termination process, retrieve access to all company-owned social media accounts.

As the old saying goes, “make new friends, but keep the old; one is silver and the other’s gold.”  With the price of silver and gold what it is now, we’re probably going to see more and more legal battles over who has the rights to social media friends in the future.