Human Resources Counseling
Daily decisions about employees involve risk. Every business, large or small, is subject to an ever-expanding collection of employment laws and regulations. Our role as employment lawyers is to be available for timely, practical and sound advice to our clients on the daily operational issues they confront while running their businesses.
Employment questions must be addressed promptly, but with careful consideration of the implications. We regularly help our clients on questions involving discipline, vacation accrual and entitlement, terminations, family and sick leave, overtime exemptions, worker’s compensation leave, background checks, testing for drugs and alcohol, employee polices and handbooks, privacy, internet and e-mail use and abuse, telecommuting, independent contractor status, and more. Maintaining an awareness of our clients’ business needs is vital, and at the heart of our employment practice. A single event can result in the expenditure of substantial administrative time, or worse, claims and litigation. Seeking advice sooner, rather than later, is the best way to minimize cost, maintain morale and a stable workplace, and avoid unnecessary risks.
Our attorneys also have particular experience in the following areas:
Reductions in Force:
Sometimes a business must reduce the number of its employees. A layoff, even if it affects only a few employees, is a significant event, and should not be treated casually. The morale of the remaining employees is affected. Employees who have been long term contributors may be included in those being laid off. A reduction in force may be the first sign of harder times ahead, creating fear among other employees and anxiety in the supervisors. Whether the layoff is necessitated by economic reasons or some other business purpose, such as a merger or reorganization, it must be planned and implemented carefully. We assist our clients in managing the process and each of the steps: non-discriminatory selection criteria, methodology, documentation, notices and communication, severance, age discrimination waivers, applicability of federal and state plant closing and mass layoff laws, and employment contract entitlements. Although a layoff is a traumatic event, its risks can be managed and limited though careful planning and sensitive implementation.
When an employee is accused of misconduct or a violation of company policy, or a claim of harassment is made, the employer must take prompt and appropriate action. Normally before any decision is made or action taken, an investigation should be conducted, the results of which will provide support for the employer’s decision. Failure to investigate can have undesirable consequences. Conducting an improper investigation can compound the potential problems. We regularly work with our clients to plan and implement internal investigations of all forms of misconduct, policy violations and harassment. We may undertake the role of the investigator, or we may assist our client in coordinating the work of an independent investigator trained in law, industrial psychology or human resources. The nature and scope of an internal investigation will vary with the nature of the events, but it should always be carefully planned, fairly conducted and well documented. Privacy rights must be protected and confidentiality maintained. Information needs to be obtained from the right people in the right way. Questions about drug or alcohol testing or background checking may arise. As with most other areas of the employment relationship, an internal investigation is a potentially risk-laden event, and it is advisable to seek the assistance of counsel.
Leaves of Absence:
One of the most difficult and time-consuming tasks a human resource manager must face is reconciling all of the legal requirements relating to “absence management” – federal and state family leave, sick leave, accommodation leave under the Americans with Disabilities Act, maternity and pregnancy disability leave, absenteeism, leave for work-related injuries, leave for military duty, and many other statutory leave entitlements. Even if the nature of the leave can be sorted out, questions remain about whether benefits continue, do stock options continue to vest and vacation continue to accrue? Is the employee entitled to return to his or her job? Often the historical but undocumented poor performance of the individual now on a protected leave is raised as “reason” why the employer now does not want the employee returning to work. Managing absent employees is a sensitive and difficult problem. We assist our clients with questions about garden-variety leave issues and, more commonly, with implementation of strategies for handling more complex situations that potentially involve several overlapping laws and regulations. Our goal is to find the single pathway through all of the potentially conflicting entitlements, and thereby help both the client and the employee understand their respective rights and obligations.