Bring Your Own Device (BYOD) Policy – 10 Tips for Protecting Your Business

By Lisa Berg on September 19, 2014 Posted in Employee Handbooks & Policies

Do you allow employees to access company data using their personal portable electronic devices instead of company-issued devices? For example, do employees use their smart phones to contact customers and store customer contact information, preferences, etc., on their phones? When these employees quit or are terminated, have you implemented measures to ensure your customer lists don’t walk out the door with them?

Unfortunately, many employers have not yet promulgated policies to protect confidential information stored on employees’ personal portable communication devices (PCDs). Don’t fret if you are one of them, as I have created my “Top Ten Tips” to address in a Bring Your Own Device (BYOD) Policy. (Yes, I’ve watched too much David Letterman over the years.)

Does Data Mining Tip the Balance Against E-Verify?

By Glenn Rissman on September 11, 2014 Posted in Hiring/Termination, Immigration

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E-Verify is an online application that allows participating employers to verify electronically the employment eligibility of new hires. It is jointly operated by the Department of Homeland Security (DHS) and the Social Security Administration (SSA).

To participate in E-Verify, an employer must sign a multi-page Memorandum of Understanding (MOU) with the DHS and SSA. The employer must still complete the Form I-9 but uses E-Verify to check the information the new hire has provided against records contained within the DHS and SSA databases. If the new hire passes muster, there is a presumption that the employee is authorized to work in the United States. Nevertheless, the DHS reserves the right to conduct I-9 compliance inspections as well as any other lawful compliance and enforcement activity. The employer who participates in E-Verify also agrees to cooperate with the DHS and SSA, including allowing the agencies and their contractors to review Forms I-9 and other employment records and to interview employees.

For most employers, E-Verify is still a voluntary program. Should you enroll in E-Verify? If you are a federal contractor or operate in a state where E-Verify is mandatory, you will not have a choice, at least for some of your operations. Otherwise, you have to weigh the benefits – a clean bill of health on those employees confirmed through E-Verify and getting ahead of the curve on the almost assured mandatory implementation of E-verify in the future – versus the cons – administrative burdens, potential liability for misuse of E-Verify or noncompliance with the rules, and agreeing to greater DHS access to your workplace and records. Continue Reading

Intimidation: An Attention-Grabber for Coaching Football, but a Flag for Coaching Employees

By Stearns Weaver Miller on September 8, 2014 Posted in Employee & Management Counseling

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It’s the most wonderful time of the year … football season! In my house, it’s all football, all the time – college football (Tuesday, Wednesday, Thursday and Saturday), pro football (Sunday, Monday and Thursday), NFL Total Access, ESPN Game Day etc. My husband and I even watched HBO’s “Hard Knocks,” a show following the Atlanta Falcons through their preseason.

In one episode, the special teams coach reviewed footage from a preseason game with his players. The coach was animated and repeatedly cursed loudly to express his disappointment with their performance and his expectations for the next game. The players had no response. They either looked straight ahead or down at their play books.

This type of critical and intimidating “dressing down” of employees appears to be acceptable in professional football. However, it is not what employees should endure at work and is not what most organizations expect from their leaders. (This is why helmets are not worn at work!) Organizations look for leaders who inspire, motivate, support, empower and engage employees in a positive manner to do their personal best to drive and achieve business results.

California and Non-Compete Agreements – What Can You Do?

By Stearns Weaver Miller on September 5, 2014 Posted in Employment Contracts & Corporate Issues

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Since 1872, the California Supreme Court has applied a bright-line mandate holding covenants not to compete invalid and unenforceable, unless the covenant is being sought as a means to protect goodwill in connection with the sale of a business. California’s Business and Professions Code permits an exception to the blanket non-enforcement of covenants not to compete. The exception provides that any person who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified geographic area in which the business has been carried on, so long as the buyer or any person deriving title to the goodwill or ownership interest from the buyer, carries on a “like” business in that area.

Solution: Severance Arrangement

In light of this rather narrow exception to the bright-line rule, what do California employers do to prevent key employees from stealing clients and customers? One method, and really the only method, that is used in California is to provide a severance arrangement whereby the severance payments are made as salary continuation over a specified period (e.g., one year) and are conditioned on non-competition. Under the arrangement, the former employee is being paid to refrain from competition. The agreement is entered into with the understanding that if the employee actively competes, either by accepting employment with a competitor or by calling upon clients and customers, the salary continuation payments will cease immediately. A California court has yet to invalidate this type of arrangement.

Enjoy Your Vacation: Emails Automatically Deleted When You’re “Out of the Office”

By Stearns Weaver Miller on September 2, 2014 Posted in Employee Handbooks & Policies

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I am always excited to turn on my “Out of Office” message on my email before I leave for vacation. But that message does not stop the emails from coming in or eliminate the need for my response when I am back in the office (or when I check in during my vacation). But, what if turning on the “Out of Office” message could mean an empty in-box upon my return and no need to check my email while I am out?

For the 100,000 employees who work for Daimler, the German vehicle manufacturer, that’s a reality. Under Daimler’s new “Mail on Holiday” program, employees have the option to have all incoming emails automatically deleted when they are on holiday. (As an aside, I think holiday sounds so much more fun than vacation!) The email sender receives an out of office message stating that the recipient did not receive the email and to contact another employee. According to Daimler, the purpose of the policy is for employees to relax, not read emails during their time out of the office, and then return to a clean desk.

Can such a policy be implemented in the United States? I guess I need to talk to my IT department as I plan for my next holiday. Of course, even if such a policy were implemented, I expect that all the senders of all the deleted emails will simply re-send their emails to me on the day I return to work. Nothing like reviewing a few thousand emails on the first day back.

As an aside, I will be presenting a “New Claim on the Horizon: Family Responsibilities Discrimination” at our Miami office on September 17th. If you have not already done so, please register here for the in-person session or here for the webinar. I look forward to seeing you there!

Employees Behaving Badly Part 1: Female Employee Chooses Beauty Over Comfort . . . And Her Job!!

By Stearns Weaver Miller on August 28, 2014 Posted in Disability & Leave, Employment Litigation

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Shawna Palmer was going to squeeze her toes into those Jimmy Choos, Manolo Blahniks – fill in the name of any other high end shoe brand – no matter what! After all, there was a beauty pageant title on the line – Miss Toyota Long Beach Grand Prix in California. Unfortunately for Ms. Palmer, she chose to enter the contest when she was out of work, collecting workers’ compensation benefits for none other than – wait for it – her inability to wear SHOES due to a fractured toe. Oh, apparently except for high heel stilettos which every self-respecting beauty pageant contestant knows is a requirement. More unfortunately for Ms. Palmer, cameras were rolling and recording her runway strut potentially all the way to the unemployment line and a criminal prosecution.

Workers’ compensation insurance fraud is a crime draining billions of dollars from employers on an annual basis. When Ms. Palmer’s employer (or former employer??) learned about her high heel runway antics while, at the same time, claiming she couldn’t wear shoes to work, or work at all for that matter, it shared the video with state prosecutors. Ms. Palmer is now facing criminal charges as well as a civil judgment requiring her to reimburse her employer’s workers’ compensation insurance carrier for her ill-gotten gains – more than $20,000.00!

Employers Pay for Antitrust “Conspiracies”

By Eric Gabrielle on August 26, 2014 Posted in Employment Contracts & Corporate Issues, Employment Litigation

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Employers who agree not to poach each other’s workers may face substantial monetary exposure. This was the lesson learned the hard way by tech powerhouses Adobe, Apple, Google and Intel in a recent California antitrust class action suit.

The Silicon Valley giants and other defendants were sued in a class action case now pending in a California federal court by a class of skilled workers. The workers alleged their wages were artificially suppressed by a series of “secret” bilateral agreements between high-level executives not to hire employees from each other.

The parties reached a proposed settlement of nearly $325 million. However, the settlement was rejected by the court, which noted that there was evidence of an overarching conspiracy between the key defendants. The court concluded that an additional $50 million was required from these defendants in order for the settlement to be fair to all class members.

Religion in the Workplace: Ignorance May Be Your Savior

By Andrew Rodman on August 20, 2014 Posted in Discrimination & Harassment, Employment Litigation

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You be the judge . . .

An Activity Aide at a nursing home transferred a resident back to the resident’s room. A non-supervisory Nursing Assistant then told the Activity Aide that the resident wanted the Rosary read to her. The Activity Aide refused and explained to the Nursing Assistant that reading the Rosary was against her religion. Consequently, nobody read the Rosary to the nursing home resident, and the resident complained to the Activity Aide’s supervisor.

Five days later, the Activity Aide’s supervisor terminated the Activity Aide. When the Activity Aide asked why, the supervisor explained that the Activity Aide had refused to read the Rosary to a resident. At that point, the Activity Aide told her supervisor for the first time, “well, I can’t pray the Rosary. It’s against my religion.” The supervisor responded, “I don’t care if it is against your religion or not. If you don’t do it, it’s insubordination.”

Not surprisingly, the Activity Aide, a Jehova’s Witness, sued the nursing home for religious discrimination, under Title VII.

You’re the judge. Does she win?

Jury Trial Waivers: “Waive” Goodbye to Costly, Unpredictable Employment Litigation

By Stearns Weaver Miller on August 18, 2014 Posted in Employment Litigation

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We imagine that among those former employees who sue their employers, there are many who dream of hearing the words “Ladies and gentlemen of the jury . . .“ wishing for a pot of gold to follow. Obviously, the thought of hearing those words in a courtroom may make an employer cringe.

So how can an employer try to avoid making this dream come true? One way might be to ask employees to agree to waive their right to a jury trial with regard to potential employment-related claims. Plaintiff attorneys may think twice before taking a non-jury matter on a contingency fee basis.

In Florida, depending on a number of factors, including the waiver language itself, both state and federal courts have signaled a willingness to enforce a clearly written provision which demonstrates a knowing and voluntary waiver of the right to a jury trial by both the employer and employee. The waiver can be included in an employment application or an employment-related agreement such as non-compete or confidentiality agreement.