This summer, our firm is presenting a free, four-part webinar series on hardening your small- to medium-sized business against litigation. Following is a recap of the second webinar in our summer series:
On July 13, litigation attorney Ray Panneton presented a webinar on the legal aspects of hiring, firing, and managing employees.
From employee handbooks to avoiding harassment and discrimination claims, Ray shared some employment practices that can protect your business from labor & employment lawsuits and controversy.
The Hiring Process: Legally Compliant Job Descriptions
Often overlooked, job descriptions can have a huge impact on litigation as well as potential HR issues.
One of the most notable legal implications of job descriptions is under the Americans with Disabilities Act (“ADA”). Per the ADA, employers must give reasonable accommodations (if requested) to employees with disabilities. An accommodation, however, is inherently unreasonable if it excuses an employee from performing their essential job functions.
If an accommodation is requested and denied, suit may be filed alleging the employer failed to provide a reasonable accommodation. In defense of these allegations, most employers argue that the accommodation would have excused the employee from performing an essential job function.
If a job function is essential to the position, include it in your job description. Courts often look to an employer’s job description to determine what the employee’s essential job functions are.
In addition to the ADA, job descriptions could also implicate other anti-discrimination laws, such as Title VII, ADEA, etc.
It is important that your job description accurately reflects the duties of the job, as well as the qualifications one must possess for the position. This willpotentially assist in the defense of claims for wrongful termination and/or discriminatory hiring practices.
The Hiring Process: Job Applications
Practically speaking, job applications are a good way to standardize data collection for potential employees. Your job application, however, should be tailored in such a way that it does not run afoul of federal, state, or local laws.
What to avoid in your job application form:
- Questions regarding protected characteristics, such as gender, citizenship, age, or disability
- Questions about criminal convictions: Many jurisdictions have enacted “Ban the Box” laws which prohibit inquiring about criminal convictions on job applications. Additionally, the EEOC has taken the position that this practice should be avoided.
- Questions about salary history: Some jurisdictions have enacted legislation preventing you from asking for this information in that an applicant’s previous pay may have been based upon previous discriminatory pay practices.
- Failing to include FCRA notices: If you are conducting background checks, you MUST have the Fair Credit Reporting Act notices. It must be in writing and in a stand-alone document.
The best practices identified for job descriptions and job applications should also be followed during the interview, i.e., do not ask a question during an interview that you would not have asked on a job application.
The “Working Interview”: Do I Have to Pay Potential Candidates?
Contract vs. At-Will Employment
Texas law does not require employment contracts, and if an employment contract is not signed, then the relationship defaults to an “at will” employment.
If an employee is “at will” then an employee can quit at any time, for any reason (or no reason). Similarly, an employer can terminate an “at will” employee at any time, for any lawful reason.
If you decide to have your employees sign an employment contract, that contract will govern the relationship.
Most employment agreements will include:
- Delineation of job duties and expectations;
- Working hours;
- Performance benchmarks; and
- Limitations on activities (i.e., moonlighting, non-competes, non-solicitation agreements)
In addition to the foregoing, the employment agreement can also fix the duration of the relationship, or it can stipulate that the employee shall remain an “at will” employee.
Employee Handbooks & Social Media Policies
While not strictly required from a legal perspective, an employee handbook is an essential tool for employers. A handbook documents and clarifies internal policies, procedures, and expectations.
Additionally, having employees sign an acknowledgment of the company’s handbook can also assist the company in defense of litigation, should it arise.
Why Should My Small Business Have a Social Media Policy?
Without a clear social media policy, a business runs the risk of not only harming its brand image, employees can also run afoul of regulatory guidelines which limit corporate speech.
Consider these regulations when crafting a social media policy:
- SEC Considerations: The Fair Disclosure regulation governs the disclosure of information publicly traded companies make though media outlets, including Facebook and Twitter.
- NLRA: Social media policies should be crafted narrowly, so that there is no limitation of employees’ rights relative to a protected concerted activity.
- FDA: The FDA also has disclosure regulations, especially when it comes to promotions and advertising.
- HIPAA: Patient-specific information must be kept private and secure in accordance with industry regulations.
- Investment Advisors Act: Strict rules on advertising procedures and use of third-party reviews.
Whether you are just establishing or acquiring a new business, or you have been in operation for decades, adopt a social media policy for both personal and professional employee posts.
Review these Social Media Policy Dos And Don’ts
Stay Tuned for our Next Webinar on Preventing Litigation…
Litigation attorney Ray Panneton will return on Thursday, July 27 at noon CT to share legal tips to protect and defend the ideas and information that give your business a competitive edge.
Key topics covered in this webinar include:
- Copyrights, trademarks, and licensing agreements
- Non-compete agreements, non-disclosure agreements, and non-solicitation agreements
- Your rights and responsibilities under the Texas Uniform Trade Secrets Act (TUTSA)
- What to do when your intellectual property is infringed or stolen
- Bonus Q&A: As a value-add, our attorney will be available to answer your questions on protecting trade secrets and intellectual property following the presentation
This webinar is free to attend, but space is limited.