formal welcome organizes policies and serves as a

•• Formal WelcomeFormal Welcome

•• Organizes Policies and Organizes Policies and ProceduresProcedures

•• Serves as a Centralized Serves as a Centralized ““AnswerAnswer”” BookBook

•• Communicates postCommunicates post--employment employment responsibilities.responsibilities.

•• Protects employer Protects employer when key employee is when key employee is lost.lost.

•• Employee handbooks should Employee handbooks should notnot be contracts.be contracts.–– Conflict with atConflict with at--will employment.will employment.

•• Consistency between handbook and contract.Consistency between handbook and contract.–– Both should crossBoth should cross--reference each other.reference each other.

•• Mandatory and Mandatory and Optional PoliciesOptional Policies

•• Review of Existing Review of Existing PoliciesPolicies

•• Establish a Regular Establish a Regular Audit Policy.Audit Policy.

•• Avoid legalese.Avoid legalese.

•• Focus on moderate, balanced policies.Focus on moderate, balanced policies.

•• Union and nonunion considerations.Union and nonunion considerations.

•• Clearly defined employee classifications.Clearly defined employee classifications.

•• Introduce mission and Introduce mission and strategy of the strategy of the employer.employer.

•• Introduction to the Introduction to the Employer and to the Employer and to the Handbook.Handbook.

•• ““Nothing in this Handbook creates a Nothing in this Handbook creates a contract of employment.contract of employment.””

•• Stress that handbook policies are Stress that handbook policies are ““guidelinesguidelines””..–– Employer retains the right to modify or delete Employer retains the right to modify or delete

policies without prior notice.policies without prior notice.

•• Employment relationship is Employment relationship is ““atat--willwill””..

•• FargherFargher--EllerthEllerth affirmative defense.affirmative defense.

•• Consider several avenues for reporting:Consider several avenues for reporting:–– Direct reporting to supervisor.Direct reporting to supervisor.–– ““OpenOpen--DoorDoor”” policy to HR or Management.policy to HR or Management.–– Confidential hotConfidential hot--line.line.

•• ADAAA (2009)ADAAA (2009)–– Definition of Definition of ““disabilitydisability””–– ““Regarded asRegarded as””

•• Interactive Process.Interactive Process.

•• Consistency with disability accommodation.Consistency with disability accommodation.

•• Conform to federal & state law requirements.Conform to federal & state law requirements.–– Ex: New Jersey Ex: New Jersey –– Pregnancy Disability LeavePregnancy Disability Leave

•• Fitness for duty, doctors note and medical Fitness for duty, doctors note and medical examination policies.examination policies.

•• Overtime practicesOvertime practices–– Policy requiring prior Policy requiring prior

consent.consent.

•• Paid sick leavePaid sick leave–– ““Use it or lose itUse it or lose it””

•• Vacation Pay.Vacation Pay.–– ““WagesWages”” in Pennsylvaniain Pennsylvania

•• Identify what information can be shared.Identify what information can be shared.

•• Require disclosure of social networking sites.Require disclosure of social networking sites.

•• Advise that postings are subject to employer Advise that postings are subject to employer monitoringmonitoring

““CNN's senior editor of Middle East affairs, Octavia Nasr, was saCNN's senior editor of Middle East affairs, Octavia Nasr, was saddened at the fact that Hezbollah ddened at the fact that Hezbollah sheikh, sheikh, SayyedSayyed Mohammed Hussein Mohammed Hussein FadlallahFadlallah had passed away. Nasr then took to the had passed away. Nasr then took to the TwitterverseTwitterverseto express her respect for the leader. The only problem was thatto express her respect for the leader. The only problem was that SayyedSayyed Mohammed Hussein Mohammed Hussein FadlallahFadlallah was a confirmed terrorist who was responsible for the deaths ofwas a confirmed terrorist who was responsible for the deaths of a number of Americans. a number of Americans. According to the According to the NY Daily NewsNY Daily News, the single tweet (seen below) was enough to terminate her , the single tweet (seen below) was enough to terminate her employment with CNN after 20 years.employment with CNN after 20 years.”” (Hudson Horizons, (Hudson Horizons, http://blog.hudsonhorizons.com/Article/Socialhttp://blog.hudsonhorizons.com/Article/Social--MediaMedia--CostCost--MeMe--MyMy--Job.htm).Job.htm).

•• Warn that policy applies to company property Warn that policy applies to company property andand personal devices (cellpersonal devices (cell--phones)phones)

•• Prohibit:Prohibit:–– Use of employer trademark w/o permission.Use of employer trademark w/o permission.–– Comments relating to employer business.Comments relating to employer business.–– Comments disclosing confidential information.Comments disclosing confidential information.–– Malicious, disparaging and defamatory comments.Malicious, disparaging and defamatory comments.–– ThirdThird--party material.party material.

•• AttendanceAttendance

•• Standards of ConductStandards of Conduct

•• Code of Ethics/Conflict of InterestCode of Ethics/Conflict of Interest

•• Romance in the WorkplaceRomance in the Workplace

•• Health and Safety in the WorkplaceHealth and Safety in the Workplace

•• SmokeSmoke--Free WorkplaceFree Workplace

•• Substance Abuse in the WorkplaceSubstance Abuse in the Workplace

•• Drug Testing in the WorkplaceDrug Testing in the Workplace

•• Workplace ViolenceWorkplace Violence

•• Review of Personnel FileReview of Personnel File

•• Usually at the end of the handbook.Usually at the end of the handbook.

•• Require employee signature the he/she has:Require employee signature the he/she has:–– Received, reviewed and understands Received, reviewed and understands

handbook.handbook.–– Understands atUnderstands at--will employment relationship.will employment relationship.–– EmployerEmployer’’s ability to modify policy w/o notice.s ability to modify policy w/o notice.

•• Maintain a signed copy in personnel files.Maintain a signed copy in personnel files.

•• Policies in practice Policies in practice should not deviate should not deviate from written from written language.language.

•• Examples of negative Examples of negative consequences.consequences.

•• Enforcement is different in all fifty states.Enforcement is different in all fifty states.

•• Pennsylvania is governed by common law.Pennsylvania is governed by common law.

•• Ambiguity is construed against the drafter.Ambiguity is construed against the drafter.

•• NonNon--CompetitionCompetition

•• NonNon--SolicitationSolicitation

•• NonNon--DisclosureDisclosure

•• NonNon--RaidingRaiding

•• Necessary to protect legitimate interests; Necessary to protect legitimate interests;

•• Limited in time and geographic scope;Limited in time and geographic scope;

•• Supported by adequate consideration; and Supported by adequate consideration; and areare

•• Ancillary to employment;Ancillary to employment;

•• Trade Secrets & Trade Secrets & Confidential Confidential InformationInformation

•• Customer GoodwillCustomer Goodwill

•• Specialized Skill and Specialized Skill and Training.Training.

•• EmployeeEmployee’’s aptitude, skills & subjective s aptitude, skills & subjective knowledge.knowledge.

•• Information learned prior to employment.Information learned prior to employment.

•• Intent to monopolize industry.Intent to monopolize industry.

•• No per seNo per se’’ rule.rule.

•• Depends on industry Depends on industry and specific and specific circumstances.circumstances.

•• Between six months Between six months and one year is usually and one year is usually reasonable.reasonable.

•• Legal definition for Legal definition for ““valuevalue””

•• Must be Must be ““ancillaryancillary”” to employmentto employment–– Employee must be aware of covenant before Employee must be aware of covenant before

accepting offer of employment.accepting offer of employment.

•• Continuing employment is Continuing employment is notnot sufficient sufficient consideration.consideration.

•• Need corresponding new benefit (salary Need corresponding new benefit (salary increase) or change in employment status.increase) or change in employment status.

•• Preliminary InjunctionPreliminary Injunction

•• Breach of ContractBreach of Contract

•• Intentional Interference of Contractual Intentional Interference of Contractual Relations.Relations.

•• Court may modify Court may modify ““unreasonableunreasonable””provisions in contract.provisions in contract.

•• May consider May consider incorporating a incorporating a ““severabilityseverability””provision within provision within contract.contract.

•• Choice of Law and VenueChoice of Law and Venue

•• ArbitrabilityArbitrability ClauseClause

•• Attorneys Fees in Enforcement.Attorneys Fees in Enforcement.