Liability

I’ve Got My Eye on You

 Another update from the Jungle…..

Jayne accepted the first job offer after college because she was worried about making her student loan payments. She also wanted to prove to her parents that she could take care of herself.  In hindsight, Jayne wondered if living at home was really so bad because her new employer is insane.unnamed-5

During the endless rounds of interviews employees gushed about the joys of working for the company and its founder, Wesley, but Jayne was an English minor in college and she can read subtext. She quickly picked up on the jokes about timed bathroom breaks and monitored phone calls.

One young woman sheepishly admitted that she was busted for her negative comments on her personal Facebook page.  All the employees in that interview session laughed when Jayne said that she had heard that employees couldn’t be forced to provide access to their personal social media accounts to their employers. They assured Jayne that it was no big deal.unnamed-1

Jayne was young and desperate so she took the job despite feeling uncomfortable.  At orientation, she was required to sign a confidentiality agreement that allows the company to search her personal belongings at any time to ensure that confidential information is not stolen.     

Jayne’s discomfort zoomed into paranoia after she updated her LinkedIn profile with a description of her new job.  The next day, Rhoda, the HR Director, told Jayne that she had violated the company’s social media policy which covers postings on LinkedIn.

unnamedThe policy requires employees to include a statement that Wesley is a brilliant and inspiring boss and the employee is privileged to work for and learn from him.   Rhoda also told Jayne to change her head shot because it didn’t show her as a happy, loyal employee.  Jayne asked how she could show loyalty in a photograph. Rhoda shrugged. Jayne returned to her cubicle, a blob of raging paranoia.

What options are available to Jayne?

  1. She can stroll around the office humming the lyrics of a Buffalo Springfield song, “paranoia strikes deep/into your life it will creep”.
  2. She can embrace her paranoia and flit around the office in a Star Trek uniform talking to her co-workers about Klingons.
  3. She can hide in her cubicle pretending to work while she searches for a new job.

Most employers have social media policies setting parameters on what employees canunnamed-4 post and reserving the right to monitor employees’ social media for violations of the policy.  However, the more restrictive and intrusive these policies are the more likely that they will be found to have violated federal and state laws.

If your company is struggling with HR issues, Corporate Compliance Risk Advisor can help you create HR policies that are appropriate for your company’s size and then serve as a resource to your staff as the policies are implemented.

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Exit Strategy

Another update from the Jungle…..

Millie is employed because her mom is friends with Janice, owner of the company.  Millie’s mom begged Janice to hire Millie and promised that Janice wouldn’t regret it. Janice agrees.

Millie learns of her new job when her mom tells her, that starting bright and early the following Monday, she will be working for Janice, but Millie doesn’t want a job. She wants to be an actress beloved by millions.

Late Monday morning, Millie floats into the office to find her new co-workers hard at work.  Janice takes Millie on a quick tour of the office, introducing her to everyone and explains basics, like the schedule and benefits. 

Millie perks up when she hears about the benefits. She says she needs to leave early the next day to go to an audition. She enthusiastically describes the play and how she expects this show will be her big break into professional acting.  She asks if she can give a provisional resignation now in case she has to pack for Broadway on short notice.

Recovering her composure, Janice explains that until the big break arrives, Millie may want to learn a few things about her current job.  Millie is uninterested in the job, but she soon realizes that Janice’s company can teach her plenty of new stuff that she can use to advance her career in the theatre.

A few weeks later, a couple of Millie’s co-workers discreetly approach Janice. They have been following Millie’s social media posts so that they can keep up with her acting career. They believe Millie is contacting prospects and clients of Janice’s company to invite them to support her career. 

Janice drops everything to take a quick spin through various social media platforms looking at Millie’s posts.  What she sees convinces Janice that it’s time to dump Millie at the curb.  In her haste to fire Millie, Janice forgets to protect her company’s data.

Within days, Janice realizes that Millie is still accessing her company’s systems.  Millie’s social media shows that she is using Janice’s documents and processes to build a rival business while waiting for her big break in the theatre.

What steps should Janice take next to protect her company?

  1. She can become Millie’s patron, underwriting her acting career as a way to obtain some return on her investment in Millie.
  2. She can call Millie’s mom to complain that Millie is a rotten kid.
  3. She can create a checklist of all company systems that need to be updated to terminate Millie’s access.

 Most employers have well-developed on-boarding processes, but pay less attention to their termination process.  A termination process can protect company resources from misuse by former employees.

If your company is struggling with HR issues, Corporate Compliance Risk Advisor can help you create HR policies that are appropriate for your company’s size and then serve as a resource to your staff as the policies are implemented.

 

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I’m Independent Until I’m Not

Josh runs a localDriver1 courier service. He decides which jobs to accept and negotiates delivery fees with customers. When a customer calls, Josh looks at the roster of drivers and goes down the list until he finds a driver to handle the job.

His couriers are part-timers and include college students, stay at home moms, and a few Uber drivers. He treats everyone as an independent contractor because they use their own vehicles and set their own hours. All Josh requires is a clean driving record and proof of insurance.

Driver3Yesterday, Ron, a college student driver, was involved in a fender bender while making a delivery.  Ron is desperate to avoid telling his parents about the car. His parents bought the car for him as a reward for dropping his beer and pizza plan for college studies and getting serious about graduating.

Ron asks Josh to help pay for the repairs but Josh declines. He points out that Ron is an independent contractor, not an employee. Josh adds that it’s not his fault Ron was talking on his cell phone while driving and not paying attention to the traffic signals.

So Ron calls his mom to give her a hint that the car insurance premium may, possibly, kind of, increase due to unforeseen circumstances.  Like any experienced mother, Ron’s mom gets the real story within minutes. After she finishes explaining that idiots who can’t multitask shouldn’t try to drive and talk at the same time, she asks for more details about Josh’s courier business.

Driver2Ron’s mom works in HR for a major corporation and she’s just read about the U.S. Department of Labor’s new “economic realities” test. She thinks that Ron is actually an employee and not an independent contractor.

What should Ron’s mom do next?

  1. She can use her HR experience to compare Ron’s description of how the courier business is run to the DOL test and assess whether he’s an employee.
  2. She can ask one of the corporate attorneys at her company to give her an off-the-record assessment of the DOL test.
  3. She can contact Josh directly to argue that he should pay for the auto repairs because she believes her son is actually an employee of Josh’s business.

DOL released guidance on their new “economic realities” test about a year ago. This new test looks at whether a worker is economically dependent on the “employer”.  If yes, then the worker is an employee under the Fair Labor Standards Act (FLSA). Expect to hear much more about this test.

If your company is struggling with HR issues, Corporate Compliance Risk Advisor can help you create HR policies that are appropriate for your company’s size and then serve as a resource to your staff as the policies are implemented.

Join the HR Compliance Jungle today. Click here!

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If It’s Not In Writing…

Another update from the Jungle…

Auto-1Alan owns an auto repair shop and he seems to have a revolving door for employees. He knows that not everyone wants to be a grease monkey and finding employees is not easy.  In fact, he’s hired people who otherwise would never have experienced the joys of employment.  With so much turn over Alan never created written policies for his employees.

When Alan started his business, he was on the edge of town surrounded by fields. Sam and Zeke, a couple of good old boys wandered in from the fields where they were looking for their hunting dog and signed on to work for Alan. Sam and Zeke are good auto mechanics when they pay attention to the job.

Auto-4Alan lets them use some of his tools and equipment to build cars that they race on dirt tracks during the summer.  If they don’t wreck their dirt track car, they celebrate by getting drunk on Jack Daniels (black label only; green label is for sissies). When work is slow, Sam and Zeke also like to do a little target practice at the makeshift shooting range they created on the back part of Alan’s property.

Now the surrounding fields are mostly gone, replaced by a shopping center and McMansions for the urban sorts who want to experience suburban life. Alan’s property still backs up to fields but he’s worried about stray bullets. So he tells Sam and Zeke to dismantle the shooting range and keep their guns at home.  Several weeks pass and Sam and Zeke are still using the shooting range despite repeated verbal warnings of dire consequences.

Now Alan has a policeman in his office politely explaining that the neighborhood was recently annexed and is now within town limits. Town ordinances prohibit firing guns within town limits and violators can be arrested. As the property owner, Alan could be arrested.

What should Alan do next?

  1. He can blame Sam and Zeke and tell the police officer to arrest them.
  2. He can fire Sam and Zeke for ignoring his verbal warnings. Of course, Sam and Zeke have conveniently forgotten the verbal warnings (and they have guns).
  3. He can acknowledge that he needs to take a more organized approach to employee matters by creating written policies and documenting disciplinary actions.

The old adage “if it’s not in writing, it didn’t happen” still holds true. Employers like Alan who fail to document employee actions, including verbal warnings, face a greater chance of being sued for wrongful termination if they fire an employee for disciplinary reasons.

 

If your company is struggling with HR issues, Corporate Compliance Risk Advisor can help you create HR policies that are appropriate for your company’s size and then serve as a resource to your staff as the policies are implemented.

Ebook Link: https://njshirk12.files.wordpress.com/2015/03/skh-employee-theft.pdf

Join the HR Compliance Jungle today. Click here!

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Visit us: http://www.complianceriskadvisor.com/