Archive for August, 2010

Reid v. Google: A Game-Changer?

Friday, August 27th, 2010

How can a simple age discrimination lawsuit involving 54 year-old Brian Reid, Google, and the term “old fuddy-duddy” possibly change the landscape of discrimination lawsuits “In Reid v. Google, California has apparently struck again.” Reid sued Google for allegedly firing him because of his age. “He claimed his co-workers called him an “old fuddy-duddy” in 2004.”

After a six-year legal battle with Google, the California Supreme Court ruled earlier this month that Reid”s lawsuit deserves to go to trial. “But more interesting, however, is that the court concluded he could base his claim on what his colleagues call “stray remarks.”

Reid says that, behind his back, coworkers called him “an old man,” “slow, “lethargic,” and “sluggish.”  “He also claims coworkers said his compact disc cases should be labeled “LPs” instead of  “CDs.”

Courts have traditionally held that such remarks cannot support discrimination complaints.  In age discrimination cases, plaintiffs frequently support their claims with evidence of “comments and remarks by managers” or supervisors such as referring to, some employees as “old timers.”  “But when, such comments are made by co-workers, who are not involved in the “decision to terminate the affected employee”, or in a context unrelated to the decision, courts brand them as mere “stray remarks” that are not “evidence, of discrimination.”

The California Supreme Court, however, held in Reid v. Google that such “stray remarks” cannot be “categorically dismissed from consideration.” Instead, the Court explained, that, although such remarks” may not, alone, be persuasive, they can support a discrimination claim when “combined” with other evidence.” When deciding whether to grant or deny summary judgment, courts must “analyze” the “totality” of circumstances”. ”

Courts do apply the “stray remarks” doctrine on a case-by-case basis, but the Court’s holding here elevates the role of such remarks to a level higher than mere fact-specific analysis.  Indeed, when something cannot be “categorically” dismissed, it is forever in play.

The other evidence in this case is fairly intriguing. “Reid’s 38-year-old supervisor told him on several occasions that his ideas were “too old to matter.” ” Google had hired Reid in 2002 when he was 52.” A year later, his performance review said Reid “projected confidence when dealing with fast changing situations,” “had an excellent attitude,” was “very intelligent” and “a terrific problem solver,” and that he “consistently met expectations.” “The following year, Google fired Reid because he was allegedly “not a cultural fit.”

Google “culture” is, indeed, rather “unique.”  Census data shows that, in the computer industry in Santa Clara County where Google is located, only nine percent of workers are 50 or older.”

Another interesting tidbit: Google fired Reid one year before Google went public, which cost Reid 131,917 stock options that would have been worth tens of millions of dollars.

Whatever the evidence, Reid v. Google should alert employers that, to protect themselves from liability, they must make all, reasonable efforts to eliminate all politically incorrect references from the office.

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Recent Developments in New Hampshire Law

Monday, August 16th, 2010

The following recent developments in New Hampshire law relate specifically to and impact, employers and restaurants:

SB 416 (Effective July 8, 2010)

Senate Bill 416 is the most interesting of these changes in New Hampshire law because it clarifies the applicability of the state minimum hourly wage to tipped restaurant employees. It amends the introductory paragraph of RSA 279:21 to include within the definition of a “Restaurant” the following: “an establishment in a temporary or permanent building, kept, used, maintained, advertised, and held out to the public to be a place where meals are regularly prepared or served for which a charge is made and where seating and table service is available for customers or where delivery services are available.”  “The bill also includes, within the definition of “Tipped employees,” the following: “employees who deliver meals prepared in a restaurant to the customer’s home, office, or other location.”  “Thus, under the bill, pizza delivery businesses would be able to cut their drivers’ wages in half because they can classify such drivers as tipped employees, and the minimum wage for such workers is 45 percent of the minimum wage.

SB 358 (Effective July 20, 2010)

Senate Bill 358 amends RSA 275-E and concerns whistleblower protection and waste prevention in state government. “Specifically, it expands the provisions of the whistleblower protection act to include employees who object to or refuse to participate in any activity that the employee believes is a violation of law.” This bill also authorizes the labor commissioner to investigate allegations of fraud, abuse, or waste in the expenditure of public funds and adds additional protections to the whistleblower protection act for public employees who file such complaints. Thus, the bill expands whistleblower protections for public employees by allowing them to expose waste, fraud, and abuse of public funds without fear of retribution.

HB 1137 (Effective August 13, 2010)

House Bill 1137 amends RSA 275:48, I(b)(9) and (10) by adding to the purposes for which employers may withhold a portion of an employee’s wages. “Specifically, employers may withhold wages for” [l]egal plans and identity theft plans without financial advantage to the employer when the employee has given his or her written authorization and deductions are duly recorded.” Thus, under HB 1137, workers “if their employers adopt the program” would be able to prepay for legal services through payroll deductions just as they can prepay for health benefits or day care.

These developments in New Hampshire law will have an “immediate impact on businesses, so employers should consult their counsel and determine how these new laws specifically” affect them.

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Massachusetts Maternity Leave Act Protection Limited To Eight Weeks

Tuesday, August 10th, 2010

The Massachusetts Supreme Judicial Court ruled, in a 4-to-3 decision yesterday, that women in Massachusetts who work full time for small businesses can get their jobs back after eight weeks of maternity leave, but the Massachusetts Maternity Leave Act does not protect them beyond that time.

“A female employee is only entitled to MMLA rights when she is absent from employment for no more than eight weeks,” Justice Francis X. Spina wrote for the Court.

The Court did state, however, that women who are promised longer maternity leaves by their employers “either through collective bargaining agreements or company policy” can sue for breach or contract if their employer later reneges and fires them. But they do not have any protection under state law (the Massachusetts Maternity Leave Act) after eight weeks.

In the case, Sandy Stephens, a housekeeper for the president of Global NAPs Inc., a small Quincy, MA telecommunications firm, claimed her supervisor told her that, if she gave birth by cesarean section, she could take unpaid maternity leave longer than eight weeks. Stephens ultimately gave birth by cesarean section and claimed that, when she called her supervisor and anticipated returning to work after around 11 weeks, she learned her employer had fired her.

Stephens sued and alleged that her employer and its president violated the Massachusetts Maternity Leave Act by firing her while she was on maternity leave. “She cited a guideline of the Massachusetts Commission against Discrimination, which enforces the law, that says employers should notify employees in writing if they do not plan to guarantee benefits beyond eight weeks.” The SJC found, however, that the guideline is merely advisory and does not have the force of law.

“Once a female employee is absent from employment for more than eight weeks, she is no longer within the purview of the [Massachusetts Maternity Leave Act] and, consequently, is not afforded the protections conferred by the statute,” “Justice Spina wrote for the majority.”

The decision affirmed how the law has generally been applied, and John J. Barter, a Boston lawyer who represented Global NAPs, praised the ruling as a victory for business interests.

The ruling is limited to women whose maternity leave falls under state law (typically those who work at smaller companies but with at least six employees). “Women who work for employers with 50 or more employees are covered by the federal Family and Medical Leave Act, which provides up to 12 weeks of unpaid leave and job protection.” The ruling does not affect the federal law.

This decision should put both employees and employers on notice.  “On one hand, women should expect no more than eight weeks of maternity leave.” As Barter said, “[t]he court concluded that the law says eight weeks” and eight weeks means eight weeks “so the statute controls.” “On the other hand, the decision removes some liability from employers, but they should pay attention to Justice Margot Botsford’s words in her dissent.” Indeed, while employers who renege on promises to women of more than eight weeks of maternity leave may not have any liability under the Massachusetts Maternity Leave Act, they still should not use the law to employ a bait-and-switch with employees because they can, nevertheless, find themselves in court facing common law claims such breach of contract.

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How to Write an Employee Handbook for Restaurants and Other Businesses

Wednesday, August 4th, 2010

Many dining establishments encounter difficulty with how to write an employee handbook for restaurants, but, in reality, creating an employee handbook is not all that difficult, nor is a handbook for a restaurant must different conceptually than handbooks for other businesses. The key is to know what to include in it.

Having a handbook with established policies and procedures will eliminate confusion about what you expect from your employees and what they should expect from you. “Whether you are the owner of a small business and write the handbook yourself or hand over the job to a large human resources department, make sure you decide on the policies and procedures beforehand and express them in a simple, direct, and unambiguous manner.” Each employee should receive a copy of the handbook at the beginning of his or her employment.

If you are wondering how to write an employee handbook for restaurants, the following policies, procedures, and explanations are what you should include in it:

Introduction

  • Welcome the employee.
  • Provide a brief history of the company.
  • Company’s goals, values, beliefs, and philosophy.

Employee Acknowledgment Form

  • Employee should know it is his/her responsibility to read and understand handbook.
  • Acknowledgment should be at beginning of handbook.
  • Awareness of importance of handbook ensures employees read it.
  • Helps avoid future “I didn’t know about it” conversations.
  • Include a disclaimer that the employee handbook is not an employment contract between the employee and the company.

Equal Employment Opportunity Statement

  • Outline of company’s policy regarding equal employment opportunity.
  • No equal employment opportunity statement sends the wrong message.
  • Include reference to affirmative action policy here (if applicable).

General Policies

  • Attendance: a general statement about tardiness and expectations and procedure for requests for time off.
  • Confidentiality: policy regarding protection against disclosure of confidential business information; describe information considered confidential
  • Covenants Not To Compete: make sure the law in your state allows such covenants.
  • Data Privacy: protection of personal information; refer to written comprehensive information security program.
  • Dress Code: description of requirements regarding clothing, uniforms, etc.
  • Employment Categories: outline of varieties of employment categories (full-time vs. part-time) and provide disclaimer (if applicable) that employees are at-will employees and, thus, may be dismissed at any time at the company’s discretion; job descriptions, however, should be set forth in a separate document.
  • Parking: identify any applicable policy or procedure.
  • Performance Reviews: essential if problems ever arise with employee; no need for description of process but should address when reviews occur.
  • Safety & Accidents: refer to relevant documents (safety posters, emergency procedures, etc.) and periodic employee training.
  • Smoking: laws and building rules regarding smoking.
  • Social Media: expectations regarding employee behavior on blogs, message boards, Facebook, Twitter, etc.; all content posted on websites should be subject to company policies
  • Substance Abuse: outline of policy, requirements for testing, and disciplinary process.
  • Use of Employer or Company Property: description of reasonable use of company telephones and computers so long as no interference with business; no unauthorized use of Internet.
  • Work schedules (if applicable): define procedures for and information regarding schedules.
  • Additional Policies: outline other applicable policies, including employment verification requests from outside sources, breaks, job posting program, adverse weather instructions, solicitation guidelines, and whistle blower protection

Compensation & Benefits

  • Payroll: outline of payroll processing options (e.g., direct deposit) and pay periods (weekly, bi-weekly, number of pay periods).
  • Work Hours & Reporting: definition of work day and information regarding overtime.
  • Holidays: list days company recognizes as holidays and define how employees are paid for holidays.
  • Vacation & Personal Days: define who is eligible, the rate at which vacation accrues, carry-over policy (if applicable), requirements for requesting vacation and personal days, and unused vacation if employee leaves company.
  • Health Insurance: overview of coverage and who is eligible; refer to separate documentation.
  • COBRA: refer to continuation of health benefits; keep full explanation in documentation provided to employee upon leaving company.
  • Short-Term Disability: define policy and who is eligible.
  • Military Service: define who is eligible, and outline policy and requirements.
  • Retirement Plans: provide brief description of plan; refer to plan documents.
  • Worker’s Compensation: identify whether company has worker’s compensation insurance; refer to separate documentation.
  • Tuition Assistance: define policy, requirements, and who is eligible.
  • Employee Assistance: provide brief description of program and applicable telephone number.
  • Other Benefits: outline other applicable compensation and/or benefits, including information about credit unions, employee referral programs, idea incentives, service awards, employee purchases of company goods/services, and annual physical exams and blood screening.

Discrimination & Harassment

  • Discrimination and Sexual Harassment: describe policy against discrimination and harassment, and outline procedures for company response to complaints.

Leaves of Absence

  • Family and Medical Leave Act (if applicable): applies to businesses with 50 or more employees; explain and address benefits and requirements under FMLA and state laws.
  • Maternity Leave: identify who is eligible and amount of time allowed and rate of pay during absence.
  • Sick Leave: outline policy but ensure that it is consistent with vacation, FMLA, maternity leave, and short-term disability policies; there are no legal requirements for sick leave, but 3 to 10 days of paid sick leave per year is common.
  • Funeral Leave: identify type of family member (immediate or extended family) for which whose death leave is allowed and amount of time allowed.
  • Jury Duty: a good idea to include; identify relationship between rate of pay and court compensation and requirement of proof of service.

If you end up ultimately creating an employee handbook yourself, make sure you have your attorney review it so that it is consistent with federal, state, and local laws.

Employee handbooks are very helpful because they communicate an employer’s expectations to an employee and help employers run their businesses predictably and consistently. They also remove any worries or confusion regarding policies, procedures, and benefits and, instead, help focus employees on performance and production.

How to write an employee handbook for restaurants and other businesses’ is less complicated than you think, and it will prove rewarding for both the employer and the employee.

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