Preventing employment related liabilities requires considering the entire life cycle of an employment or work relationship, from initial engagement to final termination — and beyond. Particular attention should be paid to policies or procedures that affect large groups of people in the same manner, because of their greater liability risks and their potential for class action litigation.
From hiring engagement through separation, below are examples of the policy and procedure development services that KKL can provide:
Does the worker qualify as an "independent contractor," or should the organization treat the individual as an "employee"? Different laws have different standards for answering this question, and the employer may have large liabilities if it cannot justify an independent contractor classification.
Does the employer's application form comply with the applicable anti‑discrimination laws? Do its criminal history questions comply with Seattle's "Ban the Box" legislation or similar laws applicable elsewhere? Does the application form make impermissible medical inquiries? These are some of the most common issues to consider, if you use or are considering adopting a job application form.
When using a third‑party vendor to conduct background checks, federal and Washington laws require certain disclosures and communication procedures before obtaining a background report, and before taking an adverse action based on a negative report. Further, federal, state and local EEO laws may give rejected applicants legal claims for "disparate impact" discrimination, if the employer's qualification standards more harshly impact persons with a legally protected trait or status.
Good job offer letters help both the employer and the employee start their relationship with a clear understanding of the employee's pay, benefits and at‑will employment status. They also assist in communicating initial employer requirements, such as conducting a proper I‑9 verification and entering a confidentiality or non‑compete agreement. However, offer letters can create problems for employers if they might be interpreted as contractual, or as making enforceable "promises of specific treatment in specific situations" (a Washington state law claim).
Although written employment contracts are not legally required, they are common with higher‑level employees, and they can be helpful in certain other situations. Examples are an agreed fixed‑term of employment, or a moving expenses reimbursement agreement.
Even where confidentiality is not required by specialized laws, such as HIPAA, many employers want employees to enter confidentiality agreements to protect proprietary employer and/or customer information. Further, in competitive business environments, employers often want to obtain non‑competition and non‑solicitation commitments from at least some of the workforce. For employers in the business of innovation, invention assignment agreements also can be important, but these must meet specific statutory requirements to be enforceable. KKL helps develop appropriate business protection agreements that lawfully focus on the employer's protectable interests, while refraining from overly broad restrictions and respecting employees' rights to work in their chosen fields.
Many employers use commission or incentive plans to motivate valuable employee accomplishments. However, poorly drafted or incompletely thought‑out plan documents can lead to costly ligation, including breach of contract or unlawful deduction claims.
Here, often, less is more. To be sure, some employer policies are highly advisable (think EEO and anti‑harassment), or are legally required of covered employers who publish an employee handbook (think FMLA — the federal Family and Medical Leave Act). Some employer policies are important tools in preserving the generally desirable relationship of "employment at will." Yet, in recent years, many common and well‑meaning employer policies have been held in violation of the National Labor Relations Act (NLRA). When helping employers create or update their employee handbooks, KKL seeks to strike an appropriate balance among promoting positive employee relations, avoiding common pitfalls, and demonstrating compliance with applicable federal, Washington State and local laws.
At‑will acknowledgement forms can serve as important employer protections, but they must be properly crafted to avoid legal issues, including issues under the NLRA. The same is true when the employer asks its employees to sign acknowledgement forms for other purposes, such as to acknowledge being informed of the employer's policies against discriminatory harassment and workplace violence, or to acknowledge receiving important orientation or training (e.g., job‑specific safety training or "mandatory reporter" training).
Employers must carefully handle wage deductions that are not required by a generally applicable law (such as federal employment tax withholding) to avoid creating wage‑hour law claims. Further, Washington state law strictly limits an employer's ability to recover overpayments to employees through payroll deductions.
No employment relationship lasts forever, but employers and employees sometimes disagree about the timing of an employment termination. When this situation arises, both sides can achieve an amicable parting by entering a separation agreement that addresses their specific situation.
Karen Kruse Law assists employers in complying with federal, Washington State and local employment laws. Our legal advice and counsel also takes account of other important employer concerns, such as productivity, efficiency, profitability, and positive employee and community relations.
For more information, please contact KKL.