Human Resources and Law

HR pros explore policy details at Employers' Association event

November 26, 2012
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HR pros explore policy details at Employers' Association event
Tabin

The Employers’ Association’s annual partnership open house offered something for just about everyone in the human resources field.

In addition to the 10 vendors who participated with booths at the Nov. 8 event, this year TEA added presentations on such hot topics as amendments to the Family and Medical Leave Act and Americans with Disabilities Act, non-compete agreement trends and social media policies.

Miller Johnson attorney Jeffrey Frasier discussed how a company could best defend itself against the two most common lawsuits involving FMLA: interference claims and retaliation claims. He provided hypothetical situations and evaluated how different actions a company might take could easily result in a lawsuit claiming either of these reasons.

Frasier also highlighted the importance of making sure that a company is evaluating an FMLA-ADA situation on a case-by-case basis, saying that a one-policy-fits-all solution no longer meets legal requirements by the U.S. Equal Employment Opportunity Commission. He said many companies are still following the one-policy-fits-all approach, leaving them vulnerable to lawsuits.

The number one question asked during the session was, “When can I replace someone?” Frasier suggested that when backed into a corner, the best solution is often to place the person on continuous leave, which he said often results in a “miraculous recovery.”

Up-to-date, detailed job descriptions are another important tool that a company can use to help it in dismissing an employee who can no longer meet his or her job requirements due to a health issue.

Frasier said that the best action a company can take is to have an employee help write out his or her job description and then have that employee sign off on the job description. Then the employer has written evidence for when the employee can no longer perform the job requirements and the company is no longer able to make reasonable accommodations to keep that person in the job.

Companies also should make sure they are documenting everything during an investigation for employee misconduct so that if that employee goes on FMLA leave, the company isn’t backed into a corner.

Attorney Mary Tabin, who chairs the labor and employment practice group at Rhoades McKee, began her session with a discussion of how the new business court in Kent County is influencing non-compete agreements.

Tabin said that twice now the court has found that the employee would be harmed more than the former employer by the agreement. As a result, non-competes are instead being treated like non-solicitation agreements.

Tabin recommends that companies continue to use non-competes, but consider that writing them for a length of time exceeding one year is probably not going to help them in court. Instead, she suggested a company write the non-compete agreement for less than one year and then have employees also sign a non-solicit agreement for a longer duration.

Tabin said that while in the past a three- to five-year contract was considered reasonable, that is no longer the case. HR professionals need to adjust their thinking about what will be considered reasonable in today’s marketplace.

She also noted that these agreements should be unique and specific to each person who is being asked to sign them, which can make the agreement more enforceable and more likely to be upheld in court.

Social media remains a challenging issue for many companies. Employees seem to have the upper hand too, and that isn’t likely to change. One thing a company can do is to include language in its social media policy that an individual making comments about the company online must provide an opinion disclaimer stating that this is the person’s opinion and does not represent the company. The social media policy should also state that information shared online must be truthful.

But, often there is little recourse a company can take against an employee who has disparaged it, a co-worker or supervisor online.

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