When it comes to managing your company’s human resources and protecting the business in the event of a lawsuit, half the battle is ensuring that your organization maintains complete and accurate personnel records. The information below is aimed to help you do just that.
What Should Be In Your Personnel Files
- Hiring Documents – Applications, resumes, and offer letters.
- Status Change Forms – Promotions, merit increases, demotions, and transfers.
- Signed Agreements – Such agreements run the gamut, but often include at-will employment, confidentiality, arbitration, commission, intellectual property, uniform deposit, property return, and other contracts.
- Attendance & Leave Records – Attendance records are crucial to ensuring compliance with laws covering family and medical leave as well as overtime and minimum wage payments. Related schedule information and changes, time records, and vacation and leave requests (along with any subsequent decisions related to those requests) should always be saved. BUT REMEMBER – NO MEDICAL DOCUMENTS OR INFORMATION SHOULD BE INCLUDED WITH THESE RECORDS.
- Performance and Disciplinary Documents – Job descriptions, performance evaluations, disciplinary warnings, memos and notices, demotion or suspension paperwork, commendations, and termination paperwork.
- Acknowledgments — Signed acknowledgments of employee handbooks, rules, policies, safety training, and orientation.
- Payroll Records – As with attendance records, these documents are necessary to prove, among other things, that your organization complied with the relevant wage and hours laws. All employees should have their full name (for Social Security purposes), payroll or employer ID number, home address, date of birth, sex, tax withholding status (W-4), direct deposit authorization, start of the workweek, rate of pay, pay calculation, total wages per pay period, deductions/additions to wages (including garnishments or wage assignments), and dates of payment on file.
- Benefits Information – Overviews, brochures, plan documents, and signed enrollment forms. BUT REMEMBER – NO MEDICAL DOCUMENTS OR INFORMATION SHOULD BE INCLUDED WITH THESE RECORDS.
- Miscellaneous — Emergency contact information, work permits (e.g., for minors), safety and skill certifications, and unemployment claims.
What Shouldn’t Be In Your Personnel Files (But You Should Keep In Separate Files)
- Hiring Documents Part 2 — Although most hiring documents can be kept in the employee’s ordinary personnel file, credit/background check and reference information should be kept in a separate location.
- Insurance Records and Medical Information — Medical records accompanying leave requests, requests for reasonable accommodation, and work restrictions; drug testing results; pre-employment physical results; and insurance documentation containing medical details.
- Workers’ Compensation Claims — Claims, letters, and accompanying medical records.
- Eligibility to Work Documents – Verification of Citizenship or Legal Alien Status (I-9 Form) and supporting documentation (e.g., Social Security Card, birth certificate, etc.).
- Applicant Flow Data (applies only to government contractors and other employers with affirmative action obligations) — Applicant flow data, indicating race, ethnicity, and gender, should be unsigned and kept separate from the personnel file.
Although the list above is by no means exhaustive, it covers the broad categories of documents that arise in the course of ordinary human resource management. The goal of these guidelines is to assist you and your organization in staying on the “nice” list by capturing a complete and accurate history of your workforce while simultaneously complying with the law.
If you need further information on this or any other employment law related matter, please contact the authors, or your Seyfarth attorney.
Most employers are aware of the need to consider accommodation of employees’ sincere religious beliefs that conflict with a workplace requirement. We have previously published a Roadmap for handling such requests for religious accommodation.
But what should the employer do when a supervisor’s religious beliefs impose the risks of lawsuits by other employees? Case in point: a federal district court decision issued November 4, 2013 in the case of Zsenyuk v. Kamps, Inc. held that an employee’s religious and gender discrimination claim could proceed to trial based in part on evidence of her supervisor’s religious comments and practices in the workplace.
What Happened in Zsenyuk v. Kamps?
In Zsenyuk, the female plaintiff was a salesperson in a small Michigan company called Kamps, Inc. that manufactures and recycles pallets and wooden boxes. Mr. Kamps, the CEO of the company, was an active member of the Protestant Reformed Church and open about his religious beliefs. For example, he referred to God and Jesus in writings in the workplace, and quoted Scripture and said prayers in meetings. Mr. Kamps held traditional religious views regarding women in the workplace, including believing that a mother’s primary role should be caring for her husband and children at home. The company handbook referred to Sunday as a “day of worship.” Several employees agreed that Mr. Kamps preferred employees who shared his beliefs and attended his Church.
The Company ultimately terminated the plaintiff, a Catholic mother of a small child, citing her poor sales numbers. The plaintiff sued for religious and gender discrimination. The Court held that her claims could survive summary judgment, citing disputes of fact about her qualifications for her position, and whether her termination was discriminatory. As evidence of alleged religious discrimination, the court cited, for example, the fact that Mr. Kamps had told the plaintiff that he was not comfortable with her entertaining clients, especially if they were male, and had insinuated that he was siding with her colleague in a dispute over rights to an account because the colleague was a “church going man.”
When Does An Employer Need to Be Concerned About a Supervisor’s Overt Religious Expression at Work?
To be clear, many types of religious expression by a supervisor at work are perfectly lawful, and may in fact be legally-required religious accommodations by an employer. For example, a supervisory employee may wear a yarmulke or cross necklace, or engage in personal prayer, either without contravening any workplace policy at all, or as a result of a religious accommodation granted by the employer after having engaged in an interactive process with the employer.
However, when a supervisor’s religious expression at work arguably begins to infringe on the rights of others, the employer must carefully consider the interests of each employee and the risks presented.
What Kinds of Workplace Religious Activity By A Supervisor Might Raise a Red Flag?
Some examples of practices, especially by a supervisor, that may be cause for concern in the workplace include:
- Religious expression that could be perceived as derogatory to members of a protected classification such as gender, religion or (in many jurisdictions) sexual orientation;
- Actual or perceived favoritism toward those who practice the same religion as the supervisor, or attend the supervisor’s same place of worship;
- Reliance on religious beliefs as a basis for business decisions;
- Any mention of religion in performance evaluations;
- Religious meetings, Bible study groups, or prayer groups held in the workplace;
- Prayer or devotionals during business meetings, such as “opening” or “closing” prayers;
- Religious statements in company handbooks, values statements, corporate logos or e-mail signatures.
What Kinds of Claims Could an Employer Face Based on a Supervisor’s Religious Expression at Work?
These practices may increase the risk of several different types of claims by employees.
First, an employee could claim that religious expression at work, if sufficiently severe and pervasive, created a hostile environment to him or her as a member of a different religion. The employee may claim an actual or implied pressure to participate in certain religious practices, against his own or her religious beliefs.
Or the employee may claim a hostile environment to him or her based on other protected classifications. For examples, religious beliefs expressed in the workplace about members of other religions, about gender, or about sexual orientation may give rise to a perception of a hostile environment.
Second, an employee might claim disparate treatment as a result of religious expression at work. An employee who suffers an alleged adverse action, such a termination or rejection for promotion, may bring a disparate treatment claim on the grounds that employees in a favored religious group were treated preferentially. Or the employee may allege that the adverse action was taken based his or her protected classification (such as gender, religion, or orientation) and point to the religious beliefs expressed by a particular supervisor at work as evidence.
Similarly, an employee could claim constructive discharge on the theory that the religious environment made the work conditions intolerable, or retaliation, if an allegedly adverse action follows a complaint about workplace religiosity.
The employer must also be aware of the need to be consistent in handling religious accommodation for different religions. For example, if a supervisor wants to use a conference room to hold a Bible study, employees of other religions may ask for a similar arrangement. If the employer accommodates one but not the other, there may be a risk of a religious discrimination claim.
So How Does an Employer Get the Right Balance Between Accommodating a Religious Employee’s Beliefs, While Minimizing Risks of Claims by Coworkers?
The key is to find the right balance between employees’ rights to religious accommodation for a sincere religious belief and the rights of all employees to work in an environment free from discrimination or retaliation. Some of the questions that the employer should think through include:
- Has the supervisor asked for a religious accommodation? Can the supervisor’s religious practice be accommodated in a way that eliminates or minimizes any impact on other employees?
- Do employees face actual or implied pressure to participate in the supervisor’s religious practice?
- Is religion actually impacting, or perceived to impact, business or staffing decisions?
- Is religious expression at work offensive to others based on any protected classification?
- What is the overall level of religious activity in the workplace? To what extent is the activity taking place in the employer’s workplace, during work hours, or using company resources?
The analysis is heavily fact-specific and requires careful consideration, ideally with the assistance of counsel with experience in religious accommodation and discrimination claims. With careful thought, the employer can derive a policy that appropriately balances the rights of all employees.
By: Jacob Oslick
Pennsylvania practice has always possessed an old-timey charm. Pennsylvania doesn’t have “Clerks of the Court.” It has “Prothonotaries.” Pennsylvania attorneys don’t “Notice” a motion. They file “Praecipes.” And Pennsylvania takes pride that its Supreme Court dates back to 1722, making it 67 years older than SCOTUS.
But times change, and technology with it. Over the past twenty years, many of those changes have been bad for Pennsylvania employers. The growth of e-mail, for instance, has exploded discovery costs. This often makes it impractical to defend cases on the merits. Similarly, employers can face a Hobson’s choice between paying a fortune to preserve ever growing amounts of data, or risking serious spoliation sanctions. At the same time, employers typically haven’t had great success in forcing plaintiffs to accept technological changes that expedite discovery and simplify litigation.
But, in Pennsylvania at least, there may be some good news. In late-October, the Pennsylvania Supreme Court updated the Pennsylvania Rules of Professional Conduct to account for modern technology, such as electronically stored information. Among other things, the new rules:
- Require attorneys, as part of their obligation to “keep abreast of changes in the law and its practice,” to study “the benefits and risks associated with relevant technology.” (Rule 1.1, Comment 8)
- Assess an attorney’s “reasonable efforts” to keep information confidential through factors such as “the sensitivity of the information,” “the cost employing additional safeguards,” and “the extent to which the safeguards,” such as “a device or important piece of software,” serve to “adversely affect the lawyer’s ability to represent clients.” (Rule 1.6, Comment 25)
- Oblige an attorney to notify the sender when the attorney receives electronically stored information (including metadata) that he or she should reasonably know was inadvertently produced. (Rule 4.4 & Rule 4.4, Comment 2)
- Recognize that attorneys may need to retain document management companies to assist with complex litigation and e-discovery. (Rule 5.3, Comment 3)
- Make clear that a person who sends “an unsolicited e-mail or other communication” to an attorney “unilaterally” is not a “prospective client,” and thus is not protected by the attorney-client privilege. (Rule 1.18, Comment 2)
The Penn is Mightier Than the Status Quo: Prior e-Discovery Reforms
Pennsylvania’s new rules track amendments that the American Bar Association made in 2012 to its Model Rules of Professional Conduct. But they also follow on the heels of Pennsylvania’s decision last year to implement specific e-discovery rules. Those changes included adopting an express “proportionality standard” for all discovery, including e-discovery, and advising parties to consider “electronic searching, sampling, cost sharing, and non-waiver agreements [covering the attorney-client privilege].” (Pa. R. Civ. P. 4009 Explanatory Comment) And just a few weeks ago, the First Judicial District began releasing electronic discovery in criminal cases over an e-filing system. Accordingly, the revisions to the Rules of Professional Conduct reflect an on-going effort to modernize Pennsylvania practice.
From Penn to Paper to Practical Practice?
What will this mean to employers litigating in Pennsylvania courts? Until courts start ruling, it’s hard to predict. But, at a minimum, the new rules should give employers additional ammunition to push for using the latest cost-saving technology, such as predictive coding, when defending against litigation in Pennsylvania courts. After all, the requirement that attorneys “keep abreast” of new technology should make it more difficult to plead ignorance of innovative methods for reducing costs. Similarly, the new rules on inadvertent disclosure, and the earlier endorsement of non-waiver agreements, offer employers extra tools to protect privileged material.
As a practical matter, however, the effects may be limited. For instance, the new rules expressly exclude a plaintiff’s unsolicited, unilateral emails to attorneys from the privilege. Thus, in theory, these communications should be great fodder for discovery in single-plaintiff discrimination cases. But collecting these emails may prove challenging. In most cases, compliance will depend upon plaintiffs honestly and thoroughly searching their personal emails. Yet employers, and their counsel, usually will have no way to know what plaintiffs omit or destroy. Likewise, many judges handle dozens of motions each day, which may limit their time and resources to consider the many complicated issues often raised in e-discovery motions.
Still, Pennsylvania’s recent reforms are certainly positive. Technology definitely has a friend in Pennsylvania. And that should be good for Pennsylvania’s employers.
For more information, please contact the author or your Seyfarth attorney.
As we enter into the 2013 holiday season and end of the year, we wanted to take a moment and say thank you to the Readers of the Employment Law Lookout blog. We launched this blog in July with the purpose of being insightful, helpful and fun. We want to bring you content that will be useful to you in your daily work and provide some thoughts around the emerging areas of employment – issues for which we should all be “on the lookout.”
How are we doin’ so far?
One of the things Seyfarth believes in, and tries to put into practice every day, is asking for feedback from our clients and friends. We’d appreciate hearing from you about the Employment Law Lookout blog. What do you like? Which articles resonated with you? What’s been overdone (either by us or the legal publication world) and you don’t want to hear about for a while?
As we begin our planning process for 2014, we want to ensure we provide content that you can use. Our invitation to you, our Readers, is to let us know what topics are of interest (or concern) to you. What keeps you awake at night? What can we write about that will add value to you? Feel free to email me or provide your comments in the area below.
We wish you all a safe and happy Thanksgiving weekend.
Thank you – Erin Dougherty Foley, on behalf of the entire Employment Law Lookout Blog Team
A recent study commissioned by Microsoft Corporation found that nearly 80 percent of individuals hiring and recruiting use the Internet to investigate candidates. A major news network indicated that more than 77 percent of employers find information about candidates online, and 35 percent have dismissed candidates based on these findings. At first blush, looking at an applicant’s social media content makes sense – after all, with just a few clicks of the mouse you can find out all sorts of revealing information about job applicants. However, there are also several legal risks associated with viewing applicants’ social media profiles. Continue Reading
As our friends at the Environmental and Safety Law Update have been reporting (here, here, and here), December 1, 2013 marks the date that employers must begin complying with OSHA’s new Hazard Communication (HazCom) standard.
With the new HazCom standard, adopted in 2012, OSHA seeks to improve employees’ understanding of the health and physical hazards associated with chemical substances and also to align the requirements for communicating those hazards with the Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”), the United Nations’ standardized approach to elements of hazard communication.
Along with OSHA’s adoption of the GHS standards comes the following changes:
- Safety Data Sheets: Material Safety Data Sheets (MSDSs) are now known as Safety Data Sheets (SDSs). SDSs must meet a specified 16-section format.
- Hazard Classification: Chemical manufacturers must follow one and only one procedure for classifying health and physical hazards of chemicals. This procedure is now known as a “hazard classification.” Under the old standard, chemical manufacturers had to perform a hazard determination of the chemicals they manufactured. They could follow any number of procedures for conducting a hazard determination as long as they accurately determined the hazards.
- Labels: The new standard is more prescriptive and sets forth exactly what information must be on a label. This information must be conveyed through pictograms, signal words, hazard statements, and precautionary statements. Under the old standard, labels had to provide the identity of the chemical and appropriate hazard warnings, which could be done by various means as long as the necessary information was conveyed to the chemical user.
When do you need to comply?
NOW! December 1, 2013 is the deadline by which employers must train employees on the new label elements and SDS format.
The next major deadline is June 1, 2015, which is when employers must comply with all new HazCom standard requirements. By December 1, 2015, chemical distributors must stop shipping containers with non-GHS labels. Finally, June 1, 2016 is the deadline for employers to update workplace labeling and hazard communication programs as necessary and to provide employee training for any new physical or health hazards identified by a hazard classification.
As always, we will keep you apprised of the these deadlines as they approach.
For more information, please contact a member of Seyfarth’s Environmental, Safety and Toxic Torts team or your Seyfarth attorney.
As we have previously reported, working from home has become a popular and controversial alternative to the typical 9 to 5 work day. Some say modified work schedules make employees happier and more productive. Others have determined that the separation from side-by-side interaction actually lessens productivity or isn’t possible for a particular position. Whether you prefer working on the couch or the structure of an office, when it comes to employees with disabilities, an employer may need to consider whether telecommuting or working from home can be a reasonable accommodation.
That’s right, as a reasonable accommodation, employers may be required to allow certain employees to telecommute. Well, that is according to the Equal Employment Opportunity Commission (“EEOC”). The EEOC states that working from home can be a reasonable accommodation under the Americans with Disabilities Act. Continue Reading
Our colleagues who blog about Workplace Class Action matters, posted an interesting article about a recent EEOC public meeting on National Origin Discrimination. Click HERE for the complete article.
You don’t have to be a football fan to have heard about the recent bullying scandal involving the NFL’s Miami Dolphins. On October 28, the Dolphins’ offensive tackle Jonathan Martin left the team amid press reports that he was being bullied by team members. Less than a week later, the Dolphins announced in a press release that they were suspending left guard Richie Incognito indefinitely for “conduct detrimental to the team” and issued a statement that they had contacted the NFL to investigate allegations of player misconduct.
Over the last two weeks, information has continued to trickle out in the media regarding the alleged conduct, including a reported voicemail where Incognito allegedly used racial slurs and threatened Martin. There are allegations that Martin’s teammates also engaged in hazing including name calling and forcing Martin to pay $15,000 for a Las Vegas party he did not attend.
But, the mudslinging is now all around. Earlier this week, Incognito gave an interview to one media outlet where he claimed Martin had sent him texts threatening to kill his whole family. Incognito denied bullying Martin and suggested that team members regularly communicated with each other using inappropriate banter. The ensuing circus has prompted the NFL to appoint a New York-based criminal attorney to direct an independent inquiry into the team’s workplace issues.
The media’s attention to the Dolphins scandal sheds light on the growing concern about workplace bullying. As we recently blogged HERE, a growing number of states have considered workplace anti-bullying legislation, although to date, no laws have been passed.
Employers can proactively protect themselves against the legal risks of workplace bullying in a number of ways:
Institute Anti-Bullying Policies
Although employers should already have harassment and non-retaliation policies in place, those policies are typically tied to protected characteristics and conduct in the context of anti-discrimination statutes. Anti-bully policies could consider a broader range of conduct and can be built into an existing code of conduct. The policies should define bullying and provide examples of such unacceptable behavior. Such policies should also communicate a reporting procedure and provide for disciplinary action for violations of the policy.
As Philippe Weiss, head of Seyfarth Shaw at Work, Seyfarth’s subsidiary dedicated to training and compliance services, explained to national media outlets regarding the Dolphins case, “What we see, consulting within competitive environments, is that getting a group (whether that means a bunch of NFL players or a bunch of sales professionals) to successfully rally around a standard and new language of respect is the first critical step.”
According to one media source, in the Dolphins case, Martin did not formally complain about the workplace harassment and bullying before leaving the team because he feared being retaliated against. Had Martin felt confident in an internal reporting procedure the scandal and media fall out may have been avoided altogether.
Provide Regular Workplace Anti-Bullying Training.
Employers can also incorporate regular anti-bullying training with employees and managers to ensure early detection and prevention. Training with employees could include examples of inappropriate conduct, avenues available to report bullying and scenarios for discussion.
Making sure training is dynamic and interactive is essential. As Weiss explained to media outlets in the Dolphins case, ”In high pressure and sometimes insular environments, old school “respect training,” such as that using videos, power points or dead-boring talking heads, just won’t cut it anymore. Dynamic communication and real employee, player or team member buy-in are essential – as are memorable respect “hooks” and mantras so that colleagues will respond quickly to check each others’ conduct, before bad patterns emerge.” For example, as Weiss further explained, “Training programs approved (and in some cases, cited for outstanding impact in court filings) by federal agency monitors in consent decree situations also can include bullying modules. Such programs offer a valuable safeguard. Ask your training provider if they offer such programs.”
Provide Support Services.
Employers could also consider instituting programs to provide a support network for employees who may be bullied or targets of bullies to prevent and address this conduct. These types of programs include coaching, counseling, Employee Assistance Programs and other wellness programs.
Stay tuned to the Employment Law Lookout for further updates on workplace anti-bullying issues. If you have questions or need more information, please contact Seyfarth Shaw at Work, the author, Uma Chandrasekaran, or your Seyfarth attorney.