3 Resolutions For 2017 -- Employment Law Edition

Here are key issues for employers to focus on, with the help of their employment lawyers, as we start a new year.

2017 happy new yearHappy 2017! Hopefully you followed my earlier advice and this won’t be the year that you’re deposed about your holiday party. But if is, just follow Dave Chappelle’s lead and plead the Fifth.

But I digress. I’m writing this column today because I (along with every other management-side employment lawyer out there) see a lot of the same problems over and over again. To that end, here’s my list of three resolutions every employer should make (and stick to) in 2017.

Resolution No. 1: Train your supervisors and managers.

Employment lawyers and human resources professionals often get involved too late in the game to make a real difference in outcomes. I think this happens because supervisors and managers fear that if HR and/or employment counsel are involved, they’ll micromanage every minor personnel issue and then nothing will ever get done.

Even though HR is usually involved with termination decisions and other major disciplinary incidents, a lot of employment lawsuits are based on numerous discrete events occurring over the course of weeks or months (or even years). Many of these discrete events seem insignificant to supervisors and managers untrained in basic employment law issue spotting, and so HR and the employment lawyers aren’t consulted until it’s too late.

An example is LaRochelle v. Wilmac Corp., 2016 U.S. Dist. LEXIS 133135 (E.D. Pa. 2016). There, one of the plaintiffs claimed she verbally reported harassing behavior by a co-worker to various supervisors in the two months leading up to her termination but no action was taken. When she filed a written complaint with one of the supervisors, the supervisor allegedly tore up the complaint and fired the employee the next day.

I think it’s safe to say that the offending supervisor wasn’t properly trained to recognize potential employment law issues. (Or maybe he/she is a honey badger that just don’t care.) If the supervisor had even minimal training, I think HR and/or employment counsel would’ve been consulted, and a lawsuit might’ve been avoided.

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Employment lawyers deal with the problem of untrained supervisors all the time when working with multinational corporations and smaller outfits alike. Wherever their company falls on this spectrum, I tell anyone else who will listen the same thing: Train your supervisors. This can be an annual or bi-annual one- or two-hour session. It doesn’t have to be complicated or time-consuming. Just teach them the basics and make sure they understand when they need to seek guidance from HR or employment counsel. It can really save the company a lot of money and headaches down the road.

Resolution No. 2: Create better documentation.

Look, I get it. Life’s hectic, and we’re all really busy. Documenting employment issues thoroughly and accurately can be time consuming, taking us away from more pressing stuff. This is true whether we’re talking about employee time-keeping records or disciplinary forms. And let’s face it: if we’re playing the odds, most of the time minor errors and a lack of attention to detail probably aren’t going to have any real consequences.

Except when they do. For example, in Flagg v. Collier Cty., Fla., 2003 U.S. Dist. LEXIS 25580 (M.D. Fla. 2003), the court denied the employer’s motion for summary judgment primarily based on a lack of documentation for the employee’s alleged performance issues. Yikes.

The truth is that most folks (even some trained HR professionals) simply don’t know how to document employment issues effectively. Key issues are left unaddressed. Important facts are wrong. Insufficient detail is given for the documents to be of any real help in a lawsuit. These are issues employment lawyers see in case after case.

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What do courts want to see in employment documentation? It’s really pretty simple: Who, what, where, when, and why. First, include who wrote the documents at issue and identify everyone involved (including last names!). Second, clearly and thoroughly explain what happened in as much detail as possible. Third, explain where and when it happened. Finally, tell us why this is being documented (e.g., the conduct violated company policy, etc.). (And please, PLEASE, write all of this legibly.)

Bonus protip: When explaining what happened, state the facts objectively and avoid conclusions. For example, consider writing “Dwight stated that Michael hugged Phyllis and kissed her on the cheek,” instead of, “Dwight said Michael sexually harassed Phyllis.”

Resolution No. 3: Have employment agreements in place (and up-to-date) for key employees.

High-level individuals and certain key employees have access to confidential information that their companies spend a lot of time and money developing. Whether we’re talking about secret recipes or customer data, this information can be extremely valuable to the company and its competitors. If the right steps aren’t taken to protect this information, a company risks a defecting employee going to a competitor and using it.

There are several common law causes of action a company might have to prevent a former employee from using its information when going to work for a competitor or starting their own company. The simplest and most effective method, however, is to have an employment agreement in place with each high-level and key employee prohibiting the use and disclosure of certain company information. Some agreements may also restrict the employee from working in certain geographic locations or entire industries. State laws vary on what can be included in an employment agreement.

On May 11, 2016, the federal Defend Trade Secrets Act of 2016 was signed into law. A big advantage the Act provides is a clear path into federal court, which can be helpful in a lot of situations. Two other advantages the Act provides are recovery of exemplary damages and attorneys’ fees in certain cases. That’s obviously kind of a big deal.

But, in order to recover exemplary damages and attorneys’ fees, all employment agreements entered into after May 11, 2016 (as well as amendments made after that date to pre-existing agreements) must include a disclosure identifying the immunity provisions of the Act (or expressly reference a written company policy containing such provisions). Note that this requirement applies to consultants and contractors as well. So make sure that if you’re using employment agreements they’re updated accordingly.

That’s it, folks! Hopefully this has given you some possible issues to focus on when you next meet with your employment counsel. And hopefully employers across the land will take heed and adopt these three resolutions for 2017.


evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)