The Manager’s Legal Handbook By Attorneys Lisa Guerin and Amy DelPo 4th edition Fourth Edition NOVEMBER 2007 Cover Design SUSAN PUTNEY Book Design TERRI HEARSH Production MARGARET LIVINGSTON Proofreading ROBERT WELLS Index BAYSIDE INDEXING SERVICE Printing CONSOLIDATED PRINTERS, INC. Guerin, Lisa, 1964– Manager’s legal handbook / by Lisa Guerin & Amy DelPo 4th ed. p. cm. Includes bibliographic references and index. ISBN-13: 978-1-4133-0718-4 (pbk.) ISBN-10: 1-4133-0718-3 (pbk.) 1. Labor laws and legislation United States Popular works. 2. Labor contract United States Popular works. 3. Employee rights United States Popular works. 4. Executives United States Handbooks, manuals, etc. I. DelPo, Amy 1967– II. Title KF3455.Z9G84 2007 344.7301 dc22 2007021455 Copyright © 2001, 2004, 2005, and 2007 by Nolo ALL RIGHTS RESERVED. PRINTED IN THE U.S.A. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of the publisher and the authors. Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use. Quanity sales: For information on bulk purchases or corporate premium sales, please contact the Special Sales Department. For academic sales or textbook adoptions, ask for Academic Sales. 800-955-4775, Nolo, 950 Parker Street, Berkeley, CA 94710. Acknowledgments The authors would like to thank: On the first edition, our wonderful editor, Shannon Miehe, whose sense of humor, organizational skills, lightning-fast speed, and careful editing made working on this book a pleasure. On subsequent editions, our editor and friend, Stephanie Bornstein, who helped transform the book into a must-have legal guide for managers. Mary Randolph, Jake Warner, and Janet Portman, all of whom helped us figure out how to organize this material—and how to avoid the dreaded “scope creep.” Ella Hirst and Alayna Schroeder for meticulously researching and compiling the state charts. Stan Jacobsen, for his research help and ever-positive attitude. John M. True, III, formerly of Leonard Carder, LLP, in Oakland, California, for writ- ing some of the privacy material and helping out with the information on unions. Philip Monrad, also of Leonard Carder, for his generous help with the unions chapter. Table of Contents Introduction Navigating the Maze of Employment Law 1 How to Use This Book 2 Additional Resources 3 1 Hiring 7 Advertisements 9 Interviews 10 Making Promises 12 Applicants With Disabilities 14 Testing Applicants 15 Background Checks 18 Young Workers 20 Offer Letters 22 Written Employment Contracts 23 2 Compensation and Hours 61 The Fair Labor Standards Act 62 Deciding What to Pay People 63 The Minimum Wage 68 Overtime 70 Meal and Rest Breaks 74 Travel Time 76 On-Call Time 77 Flexible Work Schedules 79 Pay Docking and Unpaid Suspensions 80 Garnishments 82 Equal Pay 85 Record-Keeping Requirements 86 3 Discrimination 121 Antidiscrimination Laws 122 Race and National Origin 126 Age 130 Gender, Pregnancy, and Sexual Harassment 131 Sexual Orientation 134 Religion 134 Expression of Religious Beliefs 136 Disability 137 4 Personnel Basics 159 Personnel Policies and the Law 161 At-Will Employment 162 Employee Handbooks 166 Preventing Sexual Harassment 169 Communicating With Employees Effectively 171 Performance Appraisal 176 Creating and Maintaining Personnel Files 179 Family-Friendly Workplace Policies 182 5 Time Off 197 Vacation and Sick Leave 198 Family and Medical Leave 199 Pregnancy and Parental Leave 204 Jury Duty and Voting 207 Military Leave 207 Other Types of Leave 209 6 Privacy 243 The Right to Privacy 245 Testing Current Employees 247 Electronic Monitoring 250 Off-Duty Conduct 257 Workplace Searches 259 7 Health and Safety 269 Health and Safety Laws 267 Workers’ Compensation 269 Smoking 270 Drugs and Alcohol 272 8 Unions 295 The National Labor Relations Act 296 Representation Elections and Organizing Campaigns 298 Election Statements 300 Shop Talk 301 Union Shops and Union Dues 303 Collective Bargaining 305 Company Unions and Employee Committees 308 Strikes 309 9 Independent Contractors 319 Classifying Workers 320 Benefits and Drawbacks of Using Independent Contractors 325 Important Documents When Hiring Independent Contractors 328 Written Agreements With Independent Contractors 330 Copyright Ownership 337 10 Trade Secrets 341 The Law of Trade Secrets 343 Protecting Trade Secrets 346 Nondisclosure Agreements 351 Noncompete Agreements 352 Nonsolicitation Agreements 355 Hiring From Competitors 356 11 Handling Workplace Problems 361 Disciplining Workers 363 Investigating Complaints 365 Retaliation 372 Workplace Violence 374 Liability for an Employee’s Actions 378 12 Firing and Layoffs 387 Illegal Reasons for Firing Employees 388 Firing Employees With Employment Contracts 390 Making the Decision to Fire 393 How to Fire 396 Before Conducting a Layoff 401 Making the Cut 403 Conducting a Layoff 404 13 Departing Workers 427 References 429 What to Tell Coworkers When an Employee Leaves 432 Health Insurance 432 Severance 433 Releases 437 Unemployment Benefits 438 Appendix Resources 457 Internet Resources 458 Federal Agencies That Enforce Workplace Laws 459 Departments of Labor 460 Agencies That Enforce Laws Prohibiting Discrimination in Employment 465 State OSHA Laws and Offices 470 Index 470 INTRODUCTION Navigating the Maze of Employment Law How to Use This Book 2 Additional Resources 3 2 THE MANAGER’S LEGAL HANDBOOK S ome managers learn the hard way that good intentions aren’t enough. In these days of burgeoning employ- ment laws, regulations, and lawsuits, successfully and safely managing workers (employees and independent contractors alike) requires a whole lot more than just following your instincts. Lawmakers and courts have created a complicated web of dos and don’ts that covers the entire spectrum of workplace issues, from hiring and firing to discrimination and harass- ment. If you are a supervisor, manager, or human resources specialist, you’ve got to learn how to navigate this legal maze—or risk serious trouble for your company and yourself. Fortunately, learning what you need to know to manage workers on a daily basis doesn’t have to be time-consuming or difficult—or even unpleasant. This book distills these complicated issues down to the basics, providing the most important information you need to know when you walk into your workplace every day. How to Use This Book This book gives you the information you need to deal with many common work- place concerns and issues. Each chapter focuses on a specific employment law topic—such as hiring, compensation and hours, privacy in the workplace, and so on—and breaks that subject down into the issues managers are most likely to face. Of course, every company is different and every manager has different areas of responsibility and expertise. Although this book explains the legal rules that apply to managers and companies alike, not every manager will have the authority to make ultimate decisions on matters of policy or serious personnel matters, such as firing and layoffs. We provide this information to give you some legal background that will help you understand your role in the process, as your company defines it. Each chapter includes: •Frequently Asked Questions (FAQs). We introduce you to the chapter topic through quick answers to questions that managers and employers commonly face. •Articles. We break down the chapter’s topic into a series of separate articles, so that you can get right to the information you need. That way, you can focus only on the rules that apply to the situation at hand without having to wade through an entire book looking for your answer. •50-State Charts. We provide you with a summary of information on your state’s legal requirements where necessary, in addition to the federal law covered in the chapter. •Lessons From the Real World. Learn from the failures and victories of companies that have been taken to court by their employees. •Legal Dos and Don’ts. We provide a handful of strategies to follow—and [...]... of their relationship with each other In addition to clearly ­ escribing what the employee is d going to do for the employer (the job) and what the employer is ­ oing to do for the g employee (the salary), the contract can a ­ ddress many other issues, including: • the duration of the job (for example, one year, two years, or indefinitely) • the specifics of the employee’s r ­esponsibilities • the. .. function of the job One way to ensure that you stay within the rules is to attach a detailed job d ­ escription to the application or describe the job duties to the applicant during the job interview Then ask how the applicant plans to perform the job This approach gives applicants an opportunity to talk about their qualifications and strengths It also gives them a chance to let you know whether they might... and lives outside the workplace They deserve to know the truth so they can make the right decision This strategy will not only keep you out of legal trouble, but also increase your chances of finding an employee who is right for the job and for your business No one wants a disgruntled employee on the payroll If you’ve told the applicant the truth and he or she still wants the job, then you’ve probably... company to the terms of such a contract Advantages Employment contracts can make sense if you want or need to control the employee’s ability to quit For example, if the employee is a high-level manager or executive, or if the employee is especially valuable to the company (such as the secretary who is the organizational back­ bone of the office), then a contract can protect the company against the sudden,... Just as the contract requires the worker to stay for a certain period of time, it limits your company’s right to fire the worker for the same period Your company won’t have the ability to alter the terms of ­he employment as its t business needs change To alter the terms, you’ll have to renegotiate the contract and offer the employee some new benefit in e ­ xchange for the alteration to make the new... • Focus on what the job really requires Use the job description for the position (if you have one) to script some interview questions that will help you find out if the applicant has the necessary skills and experience If you don’t have a job description, create a list of the essential tasks the employee you hire will have to perform, then craft questions that will help you figure out whether the applicant... Disadvantages 24 6 the Manager’s Legal Handbook H iring can be a tough task for managers It’s challenging enough to find the right hire for the job—someone with the skills, attitude, personality, and other important qualities to be a success at your company When you add legal concerns to the mix, hiring can seem like a truly daunting responsibility But you cannot ignore your legal obligations when... when the applicant graduated, as a way to find out whether you know people in common The problem is, the answer will necessarily reveal the applicant’s age—and if the applicant is at least 40 years old, this could be part of a discrimination claim if you later offer the job to someone else On the other hand, you don’t want to get so hung up on every word you chapter 1: Hiring say that you defeat the. .. lawsuit Similarly, if you promised benefits in the contract, the company can’t stop paying for them before the term is up without breaching the contract and risking a lawsuit Another disadvantage of employment contracts is that they always contain an unwritten obligation, imposed by law, to deal fairly with the employee In legal terms, this is called the “covenant of good faith and fair dealing.” If... in their job application 8 True You can use the offer letter to set forth the basic terms of the job and let future employees know that they will be working at will, if that’s your company’s policy 9 False Written employment contracts should be the exception rather than the rule, but there are circumstances when it makes sense to use one 10 False Antidiscrimination laws apply to every stage of the . 24 1 Hiring 6 THE MANAGER’S LEGAL HANDBOOK H iring can be a tough task for managers. It’s challenging enough to find the right hire for the job—someone with the skills, attitude, personality, and other. list of the essential tasks the employee you hire will have to perform, then craft questions that will help you figure out whether the applicant can meet these requirements. Remember, the law. out-and-out lie—about the position, the company’s prospects, or other important facts, and the applicant takes the job based on your statements, that employee can sue the company if yourstatementsturnouttobefalseoroverlyoptimistic.(Formoreinformation on