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Wednesday
Jul092003

Your Employment Law Questions Answered

Recently, I conducted an employment law seminar at the request of the Eugene Chamber of Commerce. Turnout was excellent, the discussion was lively and the attendees were very kind in their critiques. Excellent questions were asked during the seminar and additional questions were asked in writing afterwards.

You may find that one or more of the seminar attendees' written questions may be of interest to you. The written questions and answers to the written questions are set out below.

Question
When you check job applicant's references, do you have to tell the applicant what a former employer said?

Answer
Generally, you do not need to tell an applicant what a former employer said. In some cases, however, it can be helpful to do so. During the seminar, I talked about the situation where an employer was interested in hiring an applicant but the applicant's references did not work out. When she did not get the job, she assumed it was because she was pregnant. When we told her attorney what her references said, they backed off. This helped us avoid a lawsuit.

Question
Who is the arbitrator in an agreement to arbitrate employment disputes?

Answer
When I draft employment applications, employee documents, employment policies and employee handbooks, I designate the American Arbitration Association (AAA) as arbitrator. I like the AAA because they have a set of employment arbitration rules that track changes in employment laws and is updated in response to new legislation and court rulings. We can refer to these rules so employers like you do not need to draft and continually update your own rules. Also, the filing fee for AAA is expensive. If there is a large filing fee, plaintiffs often think twice before bringing frivolous claims.

Question
How should we communicate yearly handbook changes to employees?

Answer
When we work with employers to update handbooks, new handbooks are created and distributed like the original handbooks. Each employee then signs a receipt for the new handbook. This should be done each year - employment laws and preventative strategies for employers change that fast.

Question
Legally, can we have applicants complete a voluntary questionnaire regarding their race, gender, referral source and veteran status?

Answer
This is a dangerous area. The short answer is yes you can if you do it correctly. Some larger employers are actually required to gather this information for EEOC compliance purposes. If an employer is not required to gather this information, my advice would be not to do it.

If this information is gathered, then what you do with the information and who has access to the information is very important. DO NOT put this information in an employee's personnel file.

Once again, and I can not over emphasize this, if an employer is not required to gather this information, it is best not to do so. If an employer is required to gather the information then advice should be sought from a knowledgeable lawyer on how to do this correctly.

Question
We hired an outside salesperson through a temp agency. They did a background, DMV and credit check and required the completion of an employment application. We hired the employee after 90 days. Do we have to do additional checks and have the employee fill out our employment application?

Answer
First, you absolutely positively want to have the employee fill out your employment application. As we discussed during the seminar, you want the employee to agree to the provisions at the end of the application. These provisions should be carefully designed to protect you throughout the application process and, if hired, throughout the employee's tenure with your organization. It is crucial that you have a good employment application with up-to-date disclaimers and protective language and equally crucial that you have each applicant, even those that have worked for you as temps, sign that application.

Second, whether you perform additional checks is up to you. If you were my client, I would advise you to ask the temp agency for a copy of the results of their background checks. Once you see this information you can decide on a case-by-case basis whether you want to investigate further.

Question
What if a salesperson will not sign a noncompetition/nondisclosure agreement? Make a notation at the bottom of the agreement?

Answer
If a new salesperson will not sign a noncompetition agreement before beginning work, DO NOT hire them. It is a business decision for you to make. There may be a temptation to think "this person is really good, I know he or she will stay with us for a long time and would not jump to a competitor." But do you really know this? Of course you don't. If you were my client, I would advise you not to hire them.

A notation at the bottom of the agreement would have no effect. A notation can sometimes work on employee reviews, not on noncompetition agreements.

Question
How can I get up-to-date information about harassment law changes?

Answer
Subscribe to our free LegalBriefs email newsletter. We cover Supreme Court opinions in the employment law area, including changes in harassment laws, as the opinions are issued.

Question
Do employers who have less than 10 employees have to follow all the same rules/laws, such as family leave act?

Answer
No. The laws employers must follow depend upon the size of the employer and their particular industry. The Oregon Family Leave act, for example, does not take effect until an employer has 25 employees. The Federal Family Medical & Leave act does not apply until an employer has 50 employees. If these laws, or one of them, apply to you, then you should provide certain notices to your employees. Other laws, however, apply to all employers, even those with less than 10 employees.

When we work with employers, we take their size and their industry into account and advise them accordingly.

Question
Do you have a specific application to use for employees?

Answer
Yes. We have an application that asks for information you may need, does not ask for information you should not have and includes a number of disclaimers that can protect you in the event of a law suit now or many years down the road. You can purchase the application separately or we include it in a package of employment documents we wish all employers were using with their employees.

Question
Where do I get up to date forms for my company?

Answer
From Perrin & Thayer. As stated above, we have a complete set of forms that we wish Oregon employers were using with their employees.

We looked for years for good forms for employers. What we found were forms that were incomplete, asked questions employers should not ask, subjected employers to Federal statutes that may not otherwise apply to them, were needlessly complex and failed to incorporate preventative strategies developed in response to recent court rulings. I consulted with the Vice-President of Human Resources for the 1,800 employees of a major national retailer who was also President of a national HR association. This Vice-President told me no good forms existed and urged me to do something about it. I then developed our Employment Form System to protect employers while still being as user friendly as possible.

Question
How long do you need to keep employee files?

Answer
This is a good question. You should keep employee files for as long as the employee works for you plus the statute of limitation period after they leave. Some employment claims must be brought within two years. Others can be brought as long as six years after termination of employment. I recommend that you keep employee documents for at least six years after the employee leaves your employment for any reason.

Question
Does every state have the same laws for termination or discipline?

Answer
This is another excellent question. There really is not an excellent answer. Laws do vary from state to state. However, a court in Oregon could very well decide to follow the lead of a court in Kentucky or California or Illinois and rule in a similar manner. You do not want to be an Oregon test case. Therefore, it is best to adopt preventative strategies, use employment forms, develop employment policies and draft an employee handbook that reflect employment law decisions from around the country. It then is also important that you update these strategies, forms, policies and handbooks each year to reflect new rulings. We can make this very easy for you with our Employment Form System and our employee handbook program.

Hopefully you found these questions and answers helpful. If you have a question you would like to ask, please feel free to send your question in a reply to this email. If you would like to know more about our innovative Employment Form System (flat fee) or our painless employee handbook program (customized handbook in two weeks or less for a flat fee), feel free to contact me by telephone or email.

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