Lynn Palmiero

Tuesday, 01 November 2005 19:00

Handling the employee handbook

An employee handbook can help shield employers from litigation. If properly constructed, handbooks can be useful tools that outline an employer’s rules, objectives and history.

Despite these obvious benefits, a handbook that possesses even the slightest ambiguity or oversight can leave an employer vulnerable to claims of unfair labor practices or other litigation. To avoid such allegations and the costs they can incur, the employer should pay close attention to detail and be aware of the relevant laws in its effort create a lawful handbook.

When drafting an employee handbook, it is important to read every word literally and consider every possible interpretation that may conflict with the rules’ intent.

What are the rights of the employee?
Employers may not interfere with an employee’s right to engage in concerted activity for the purpose of protection or mutual aid. This duty extends far beyond merely allowing employees to discuss or organize a union.

The bounds of the rules set forth by an employer need to be carefully set and explained so as not to unlawfully challenge protected actions. For instance, a blanket statement requiring confidentiality in all employer matters may sound safe and uncomplicated but in practice could unlawfully prohibit employees from engaging in any concerted discussion concerning wage and working conditions, actions which would generally constitute protected activities.

A more precise confidentiality clause should specify the sensitive business matters intended for protection while avoiding interfering with the legal rights of employees.

The freedom to communicate about union involvement is a significant right of workers. Oral communications and the exchange of union cards, referred to as solicitation, are practices that employers sometimes wish to de-emphasize. While the ability to discuss unionizing is a fundamental right of workers, employers still may place certain restrictions on solicitation.

Nonemployees may be forbidden from soliciting or distributing materials on company property. Employees may also be forbidden from discussing unionization during work time, although a clear definition of exactly what constitutes work time will avoid unlawfully prohibiting union discussions while employees are on break.

There are, of course, numerous exceptions to these rules that certain employers need to be aware of that can broaden, as well as further restrict, the range of acceptable employee conduct.

Health care workers, for example, have greater limits on where and when they may solicit or discuss issues involving their employer due to the heightened sensitivity of the patients who rely on their attention and care. Hotel employees, however, may not necessarily always be prohibited from distributing union materials on their worksite as long as they are off duty and interacting in an otherwise public space.

The particulars of these rules may vary, so it is important for an employer to be informed about the pertinent laws before completing its handbook.

Enforcement
After publishing a precise employee handbook that is free of ambiguities and less vulnerable to misinterpretation, the duty of the employer merely begins. An employer must be careful to equitably apply the rules it sets forth and not selectively muzzle any implied rights. An employer who picks and chooses which rules it wishes to enforce often does so at its own peril.

For instance, if an employer permits its employees to access the company e-mail system or phone lines for personal use, it may not prohibit employee union solicitation via those systems. This principle applies to all facets of employer/employee relations.

In short, the consistent enforcement of fair, concise and lawful employee handbook guidelines that are readily accessible to all employees will help deter adverse employment litigation.

While the guidelines outlined above are important, they should not be used as a substitute for consulting with competent employment counsel about employers’ rights and obligations in drafting a lawful employee handbook.

Lynn C. Outwater is managing partner of the Pittsburgh Office of Jackson Lewis LLP. Joseph S. Palmiero is an associate, same office. With 21 offices across the country, Jackson Lewis represents management exclusively in workplace law and preventive strategies. Reach Outwater and Palmiero at outwatel@jacksonlewis.com, palmierj@jacksonlewis.com or (412) 232-0404.

Tuesday, 30 August 2005 20:00

Temporary employment visas

More and more companies are looking to other countries to find the talent they need. Such companies should have a working knowledge of the options available in hiring foreign workers. The following is a brief overview of the most frequently used employment-based nonimmigrant visas.

Business visitors
B-1 business visitors are individuals conducting business on behalf of a foreign entity. Such activities include attending business conventions, conferences or meetings, negotiating contracts, consulting with business associates or conducting litigation. However, a business visitor may not engage in activities which constitute gainful employment. Therefore, the business visitor must remain on the payroll of the foreign employer for the duration of stay.

Business visitors are granted entry into the United States for a temporary period that coincides with their business needs.

Temporary workers
The H-1B visa category is used by U.S. employers for temporarily employed foreign workers in specialty occupations. A specialty occupation is one that requires the theoretical and practical application of highly specialized knowledge. Attainment of a bachelor’s degree or its equivalent must be a minimum for entry into the occupation in the U.S. The degree held by the alien must be common to the industry for the position.

Initial admissions in H-1B status may be for a maximum of three years, with extensions up to three years.

Intracompany transferees
The L-1 intracompany transferee is an individual seeking to transfer from a foreign to U.S. entity in order to work in an executive, managerial or specialized-knowledge capacity. The company abroad must have a qualifying relationship with the U.S. entity, such as parent, subsidiary, affiliate or branch. Also, the alien must have worked abroad for one continuous year within the preceding three years for the foreign entity.

Specialized knowledge L-1’s are permitted to remain in the U.S. for a maximum of five years, while managers and executives may remain for a maximum period of seven years.

Treaty traders and treaty investors
The E-1 and E-2 categories are reserved for citizens of countries with which the U.S. has a treaty of freedom, commerce and navigation, or a bilateral investment treaty. The employer and the applicant must be nationals of the treaty country. The applicant must also be coming to the U.S. to carry on substantial trade (E-1) or to develop and direct the operations of an enterprise in which the applicant has invested, or is actively in the process of investing, a substantial amount of capital (E-2).

The E visa is generally issued for a five-year term and is renewable. The authorized stay in the U.S. is usually two years, with extensions available in two-year increments.

NAFTA professionals
The TN (trade NAFTA) professional category is available only to Canadian and Mexican citizens who are coming to the U.S. to work in one of the qualifying professions listed in the Free Trade Agreement. Each of the qualifying professions has its own specific requirements.

Canadians may apply at a port of entry or qualifying airport; Mexicans must apply at a U.S. consulate. TN status can be granted for periods of up to one year and can be extended in one-year increments.

Individuals of extraordinary ability
The O-1 category is for individuals with extraordinary ability in the sciences, arts, education, business or athletics. Extraordinary ability means a level of expertise indicating that the individual is one of the few who have risen to the very top of the field of endeavor.

Extraordinary ability must be demonstrated by sustained national or international acclaim. As a result, qualifying for O-1 status is relatively difficult.

William J. Manning, a partner in the White Plains office of Jackson Lewis, is the immigration practice area coordinator for the firm. Joseph S. Palmiero is an associate in the Pittsburgh office of Jackson Lewis. With 21 offices across the country, Jackson Lewis represents management exclusively in workplace law and preventive strategies. Reach Manning at manningw@jacksonlewis.com or (914) 328 0404, and Palmiero at palmierj@jacksonlewis.com or (412) 232-0404.

Friday, 25 February 2005 08:58

Dos and don'ts

Thorough investigations will buttress an employer's defense to keep an alleged harasser from successfully suing after being terminated for misconduct. Employers have a legal duty to promptly and effectively respond to employee complaints of alleged misconduct so as to avoid suits by the accuser.

So what constitutes a proper investigation? There is no set protocol, and the unique facts underlying a complaint may require unique responses. There are, however, general guidelines that should be considered as part of any investigation.

Employers must develop and disseminate policies that give employees the right to raise complaints. All employers should distribute a written policy that both prohibits harassment and retaliation, and outlines a basic investigation protocol.

When and how to commence an investigation

Employee complaints must be responded to with the utmost urgency. Depending on the nature of the allegations, employers might consider separating the accuser and accused during the investigation.

While this can be accomplished through reassignment or a leave of absence, employers must avoid subjecting the accuser to any tangible adverse employment action, such as unpaid leave or an undesirable reassignment.

The interviews should begin with the accuser, who should be informed that the information shared with management will be kept confidential, but not secret. Company representatives should also explain that the company prohibits any form of retaliation, and that if the employee feels he or she is being treated differently because of the complaint, that person should immediately contact a manager or a human resource representative.

After addressing the preliminary issues, the accuser should be asked to relate every allegation in as much detail as possible, and the investigator should take copious notes. An investigator should take particular note of any written evidence, such as offensive or inappropriate e-mail.

Immediately after completing the initial interview, the investigator should memorialize the detailed allegations in a written summary. This document must be prepared with the realization it may be used in subsequent litigation.

* Give the accused an opportunity to respond.

The accused should be presented with detailed allegations. While employers often assume the person will simply deny the allegations, giving him or her an opportunity to respond has significant legal consequences.

The investigator should take copious notes during the interview and reduce those to a summary following the interview. The handwritten notes and any relevant documents should be maintained for possible use in subsequent proceedings.

* Create an interview list and questions.

Using information provided by the accused and accuser, the investigator should compile a list of questions for each identified witness or corroborating person. Drafting a list of questions will assist the investigator in recreating the interviews, should litigation arise.

* Prepare a written record of each interview.

The investigator must take detailed notes of any interview and collect any relevant documents from those interviewed. Every interviewee, including the accused and the accuser, should be provided a copy of the company's relevant policy and be asked to sign an acknowledgment form stating they have been told that retaliation will not be tolerated.

* Analyze gathered information, draw conclusions and take appropriate action.

After completing the interviews and reviewing the pertinent documentation, the investigator should come to a reasoned conclusion based on available information.

The touchstone of any adequate investigation is ceasing harassment that is occurring and assuring that similar conduct does not occur in the future. The remedial measures chosen must be sufficient to satisfy that obligation.

* Promptly report results and ensure no retaliation is occurring.

Keep the accuser apprised of what steps the investigator is taking and what conclusions he or she was able to draw. At the appropriate time, inform the accused of the results.

Following the investigation, the investigator or human resources representative should periodically make certain that no one has been subjected to retaliation or further harassment.

Responding to discrimination and harassment complaints presents a virtual minefield of legal issues. While these guidelines are important, they should not be used as a substitute for consulting with competent employment counsel about employers' rights and obligations when responding to complaints of misconduct.

Lynn C. Outwater is the managing partner of the Pittsburgh Office of Jackson Lewis LLP. Joseph S. Palmiero is an associate, same office. With 20 offices across the country, Jackson Lewis represents management exclusively in workplace law and preventive strategies. Reach them at outwatel@jacksonlewis.com, palmierj@jacksonlewis.com or (412)232-0404.