The Basics of Employment Agreements and Other Employment Documents Affecting Your Business

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

Employee Handbooks & Workplace Policies

For many employers, it is a good idea to create an employee handbook that clearly articulates your workplace policies beyond state and federal law requirements. There are many advantages to maintaining a current employee handbook, such as:

• legal protection if a dispute with an employee arises;
• employees receive and have notice of the same workplace rules; 
• employees know your expectations; and
• employees know what to expect from you.

Employment Agreements

An employment contract is a written document that you and your employee sign outlining the terms of your working relationship. While you can't force someone to keep working for you or adhere to the terms of the contract, an employee is likely to comply with the agreement's terms if there's a penalty for breaking the agreement. Written employment contracts are useful if you want to:

• control the employee's ability to leave your business;
• require the employee to provide you sufficient notice to find a suitable replacement;
• establish duties and standards for the employee's performance;
• specify grounds for termination; or
• establish compensation, benefits, or severance terms.

Non-Compete Agreements

A non-compete agreement is a contract between you and an employee, where the employee agrees not to compete with the employer for a certain period of time after the employee leaves the company. A non-compete agreement protects you by preventing an employee from competing against you after leaving your company (1) for a specified amount of time, (2) in a specified geographic area, and (3) with a specified type of business related to your business. 

Confidentiality Agreements

A non-disclosure or confidentiality agreement is a contract between you and an employee designed to keep confidential an employee’s knowledge of confidential or proprietary company information or trade secrets. You should consider having an employee sign a confidentiality agreement if the employee will be learning or have access to sensitive or confidential information about your company.

Severance Agreements

Although it is not required by law, many employers routinely give severance packages to long-term employees who are terminated for reasons other than misconduct. In other instances, however, the employer knows that terminating an employee will be particularly difficult and may even result in a lawsuit. Some employers routinely request that their employees sign a release as a condition of receiving a severance package, while other employers only request an employee to sign a release when there might be legitimate legal claims against the company.

Employee Benefits Documentation

The Employee Retirement Income Security Act (ERISA) requires plan administrators to give plan participants (employees) written information regarding important facts plan participants need to know about their retirement and health benefit plans. The plan administrator must provide participants with a Summary Plan Description that provides information on when employee participation begins, how service and benefits are calculated, when benefits becomes vested, when and in what form benefits are paid, and how to file a claim for benefits. Additionally, some plan administrators must automatically give participants a copy of the plans summary annual report yearly.

Erica N. Cordova is the Managing Attorney of HR Esquire - The Cordova Law Firm LLC. At HR Esquire, we believe in passing the savings along to our clients through our part-time law firm model. We strive to help small businesses develop a solid foundation and legal strategy so they can be successful. We will work to improve legal compliance and employee relations. Our goal is to improve your business' performance and provide legal advice for a successful human resources strategy via our Offsite General Counsel. Find out how we can help you and your business today! If you have questions about this article, please email contact@hresquirelaw.com. 

Expat EEO Rights: Discrimination By U.S. Employers Abroad and Foreign Employers Within The U.S.

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

Nearly gone are the days when employees worked for a truly local company that only conducts business in the United States. We now live in a globalized economy where your job can often times take you oversees, or you find yourself working for a foreign employer operating in U.S. territory. This article explores an employee's EEO rights in these two situations, that weren't initially addressed when much of the non-discrimination legislation was originally enacted.

Discrimination By An Employer Abroad

Section 901 of the Civil Rights Act of 1991 amended Title VII of the Civil Rights Act and the ADA to extend the protections of Title VII and the ADA to American citizen working abroad for an American employer.

Are There Any EEO Protections for Caregivers? Signs of Discrimination Against Female & Male Parents & Caregivers

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

For parents in the workforce, juggling their personal and professional obligations can be quite a difficult balancing act. Everywhere you look there are articles about work-life balance and how to achieve it. Unfortunately, the assumption of some employers is that your work performance is inherently compromised by your caregiving responsibilities. Making these types of assumptions is very risky for an employer. While women may be the target of most caregiver discrimination, this issue also affects male caregivers as well. 

While discrimination based on an individual's status as a parent (which is prohibited under Executive Order 13152) is not a covered discrimination basis enforced by the EEOC, there are situations where discrimination against a caregiver may serve as sufficient grounds to alleged sex discrimination under Title VII of the Civil Rights Act, or disability discrimination under the ADA. This article explores some of the instances where discrimination against a caregiver could be unlawful. 

Don't Let Your Qui Tam Whistleblower Action Get Dismissed Prematurely

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

QUI TAM PROTECTION

The False Claims Act allows a private individual or “whistleblower," with knowledge of past or present fraud on the federal government to recover stiff penalties and triple damages. The Act also protects qui tam plaintiffs who are demoted, suspended, threatened, harassed or in any other manner discriminated against in the terms and conditions of employment for acts done in furtherance of filing a claim under the Act. This provision allows reinstatement, double back pay, interest on the back pay, plus special damages including litigation costs and reasonable attorneys’ fees.

WHAT IS FRAUD UNDER THE ACT?

Georgia Employers Must Pay Their Employees More Than Once A Month

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

For many small businesses, especially in the early business development stages, paying employees on a monthly basis is an appealing option because it saves money and increases cash flow. If you are one of these employers that pay your employees on a monthly basis, I have bad news for you - you probably can't do that. Most Georgia employers are required by law to pay employees at least two equal pay periods during the month.

O.C.G.A 34-7-2 states that:

Knock-Knock...Who's There? The DOL! Are You Prepared For A DOL Investigation?

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

Through its enforcement of the Employee Retirement Income Security Act (ERISA), the Employee Benefits Security Administration (EBSA) is responsible for ensuring the integrity of the private employee benefit plan system in the United States. EBSA's oversight authority extends to nearly 707,000 retirement plans, approximately 2.3 million health plans, and a similar number of other welfare benefit plans, such as those providing life or disability insurance. These plans cover about 141 million workers and their dependents and include assets of over $7.1 trillion (as of March 31, 2013). Source

In fiscal year 2012, the EBSA closed 3,566 civil investigations, with 2,570 (72.1%) resulting in monetary results for plans or other corrective action. In fiscal year 2012, the EBSA achieved over $1.2 billion in monetary results, and EBSA investigations led to the indictment of 117 people for crimes related to employee benefit plans. Source

An EBSA investigation can be triggered by various factors such as an employee/participant complaint or negative press in the media (particularly related to alleged legal activity by the plan sponsor), or the investigation can be completely random. The U.S. Department of Labor (DOL) has recently stepped up its enforcement activities, and they obviously mean business. So, when the DOL comes knocking, you need to be prepared so that the plan sponsor does not get fined for neglecting must-have employee benefit documents.

Don't Get Fined For Neglecting These Must-Have Health & Welfare Employee Benefit Documents

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

ERISA (Employee Retirement Income Security Act) is a federal law that was passed in 1974. ERISA has been amended many times since then, most recently through Healthcare Reform. ERISA sets out certain reporting and disclosure requirements that are enforced primarily by the U.S. Department of Labor (DOL). An employer's failure to comply with these reporting and disclosure requirements can result in government enforcement actions such as a DOL audit, penalties, or legal action from an employee.

The reporting and disclosure requirements of ERISA apply to most private-sector employers regardless of size or number of employees. ERISA, however, generally does not apply to governmental or church plans. To learn more about which health and welfare benefits are subject to these ERISA reporting and disclosure requirements, click here.

While employers are not required to offer employee health and welfare benefits, if an employer chooses to offer benefits to its employees, the plan sponsor is subject to these reporting and disclosure requirements under ERISA. There seems to be a lot of awareness about the reporting and disclosure requirements of ERISA for retirement plans, but not nearly as much awareness about the requirements for health and welfare benefits. Below, I have provided a brief overview of an employer's responsibilities under ERISA for its health and welfare benefits.

From JDSupra: The One Mistake Startup Entrepreneurs Always Make - A Legal Perspective

The One Mistake Startup Entrepreneurs Always Make - A Legal Perspective...

10/24/2013

by

Joy Dixon,

Ashley Dobbs,

Trent Dykes,

Michael Esquivel, Chris Hennen

Incentivize your team like crazy and really get everyone rowing in the same direction. That’s what creates a culture and an environment for radical success... - Michael Esquivel at Fenwick & West

In your experience working with startup entrepreneurs, what's the one mistake they make time and again?

The answer to that question of course varies greatly, depending on whom you ask - and, for a legal perspective, we put it to startup attorneys writing on JD Supra.

Yes, the myriad concerns (legal and otherwise) of business formation are complicated, more so than what can be summed up in a single line item. Even so, there's much to consider in the diversity of responses when we ask attorneys well-versed in startup life to commit to just one idea. Here is what we heard back:

The Day Aliens Abducted My Client: My Journey Into Client Incompetency

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

Shortly after graduating law school, I began my legal career representing plaintiffs in employment discrimination cases. One of my first clients is one that I will never forget! My client was a very nice woman - I liked her personally, and for whatever reason felt especially compelled to help her. On top of that, she actually seemed to have a case she could win, which is becoming increasingly rare with employment discrimination.  

My client filed a pro se complaint alleging that she was discriminated against on the basis of disability, and other grounds, when she was terminated from her job. The official record showed that after several successful years working for her employer, the employer reported that my client began displaying strange behavior, such as insisting that aliens where harassing her at home, abducting her, and performing unusual experiments on her, and that this was the reason she had been missing deadlines or missing work all together. The complaint further alleged that my client believed that her employer was involved with, or had direct knowledge of the repeated alien harassment, but that her employer refused to do anything to help her.

The Interactive Process: Handling An Employee Request For A Disability Accommodation

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

This article contains some excellent advice for employers. I am still surprised by how many cases I have personally seen where the employer ignores the employee's request for an accommodation due to the employer's lack of knowledge of the appropriate process, or worse, due to the employer's assumption that the employee is "faking" so that he or she can get an exception to the standards all other employees must adhere to. 

10 Ways To Become a LGBT-Friendly Employer

By Erica N. Cordova, HR Esquire – The Cordova Law Firm LLC

The landscape of America is changing. It has become more diverse than ever. The Civil Rights Act of 1964, and other federal laws such as the ADA, ADEA, and Pregnancy Discrimination Act, ban discrimination against employees and applicants on the basis of race, color, sex, national origin, religion, disability, or age. Unfortunately  however, these laws do not explicitly address the issue of gender identity or sexual orientation.

Less than half of U.S. states have laws protecting LGBT employees and applicants from discrimination. The lack of federal or state legislation banning discrimination on the basis of sexual orientation or gender identity, however, does not prevent an employer from establishing its own workplace policies banning discrimination.

Policies on Personal Use of Company-Issued Electronic Communication Devices

Policies on Personal Use of Company-Issued Electronic Communication Devices
10/21/2013 by Gerard Morales, Joshua Woodard - Snell & Wilmer L.L.P

Many employers permit their employees to access personal accounts from company-issued electronic communications devices. They also permit employees to use their personal devices for work. Those rules are both convenient for the employee and efficient for the employer, as they make it unnecessary for the employee to carry separate devices for business and personal use. 

It is the nature of everyday business that disputes arise with respect to the content of communications between the company’s employees and customers, vendors, etc. Therefore, employers often have legitimate business reasons to access communications in company-issued devices and/or on employees’ personal devices which are used for work. Access to those communications often resolves a dispute. Clearly, said communications constitute pivotal evidence in the defense of formal claims.

Subtle Signs An Employer Uses Discriminatory Hiring Practices

By Erica N. Cordova, HR Esquire - The Cordova Law Firm LLC

Spotting Employers With Discriminatory Hiring Practices

In 2013, you would think that workplace discrimination is a thing of the past. Some might even argue that it certainly is a thing of the past. Unfortunately, that simply is not the case, as evidenced by ongoing recent debates on the state of affirmative action. While discrimination may no longer be "in your face," it is definitely still out there in more subtle forms. So, how do you spot an employer that may have discriminatory hiring practices? Here are some ways to identify an employer that may be discriminating against certain groups.

Dealing With the Conflict Between EEOC and MSPB Jurisdiction - The Mixed Case

By Erica N. Cordova, HR Esquire - The Cordova Law Firm LLC

MIXED CASES: EXPLORING UNCOMPLICATED SOLUTIONS TO ONE OF THE MOST COMPLICATED ISSUES IN THE FEDERAL SECTOR    

Erica N. Cordova

Introduction

The U.S. Equal Employment Opportunity Commission (EEOC) is a federal administrative agency responsible for enforcing federal laws prohibiting discrimination in the workplace. The EEOC has jurisdiction over claims arising under Title VII of the Civil Rights Act of 1964 (Title VII), the Pregnancy Discrimination Act (PDA), the Equal Pay Act of 1963 (EPA), the Age Discrimination in Employment Act of 1967 (ADEA), Title I of the Americans with Disabilities Act of 1990 (ADA), Sections 102 and 103 of the Civil Rights Act of 1991, Sections 501 and 505 of the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act of 2008.

A plaintiff must fit within one of the protected classes of individuals to bring a claim under one of the aforementioned laws. A person may belong to a protected class based upon race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, genetic information or prior EEO activity. There are different complaint processes which public sector and private sector employees must follow to pursue their discrimination claim with the EEOC.  The subject matter of this article concerns only federal employees seeking to bring a discrimination claim through the EEO process. Federal sector employment discrimination claims are adjudicated through an EEOC administrative hearings process, with Administrative Judges, to which private sector employees are not subject. This process is conducted pursuant to the rules set forth by Title 29 of the Code of Federal Regulations, Part 1614.

The U.S. Merit Systems Protection Board (MSPB) is a quasi-judicial federal agency responsible for protecting the federal merit system through its employee appeals functions. MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals of adverse employment actions and by conducting merit systems studies. MSPB does not hear and decide discrimination complaints except when allegations of discrimination are raised in appeals from agency personnel actions brought before the Board. That responsibility generally belongs to the Equal Employment Opportunity Commission.

It is this overlap of federal sector EEOC jurisdiction and MSPB jurisdiction that is of concern for this article.