HAVING A WORKPLACE POLICY MAY NOT BE ENOUGH-TRAINING AND ENFORCEMENT ARE CRITICAL

Cell phones are a valuable tool in conducting business and more employees are using them to perform their jobs. Cell phones can positively support productivity by connecting employees to the office and to clients. On the down side, cell phones bring up a number of issues involving safety, security, and privacy. And, as the whole world now knows, inappropriate use of cell phones can create liability issues for employers. If an employee has a moving vehicle accident and hurts someone while making a work-related or non-work-related cell phone call, the employer as well as the employee may be found liable.

The accident that occurred with the Metrolink is an unfortunate and real example of what can happen when policies may not be clearly understood or followed. The Metrolink train accident that occurred on September 12, 2008 in Los Angeles was the worst train accident in the United States in several years. Twenty-five commuters were killed and several others were injured. The most recent report by federal investigators with the National Transportation Safety Board stated that the conductor was “texting” just seconds before the accident occurred.

On July 1, 2008, California instituted cell phone regulations that required a driver to use a hands-free device while talking on their cell phone while driving. Reviewing the Cell Phone law that went into effect on July 1, 2008, the term “hands free” may not be clearly explained or defined. According to the Department of Motor Vehicles, the “hands free” law does not specifically prohibit drivers 18 and older to text message while driving, but an officer can pull a driver over and issue a citation, if, in the officer’s opinion, the driver is distracted and not operating the vehicle safely. The DMV also states in their Wireless Telephone Laws FAQs that “sending text messages while driving is unsafe at any speed and is strongly discouraged”. So California has gone further to clarify cell phone use and “texting” while driving. It will be unlawful beginning January 1, 2009.

This is probably a good time to revisit your Cell Phone policy. If you do not have a Cell Phone policy it may be time to consider creating a policy. As you review or create a policy consider other issues of concern when drafting a workplace policy. Employers must understand that it is not enough to create and publish a policy. An employer must ensure a company policy is clear, explicit and understandable by all levels of the organization. It is also worthwhile to note that an effective workplace policy includes appropriate dissemination, training, follow-up and enforcement of the policy. Establishing and following through with this process can help ensure that employees understand the policy and their responsibility with regard to the policy and it can possibly help reduce the employer’s liability if an issue should come up.

As a Human Resources professional and or employer you must understand and interpret legal requirements for your employees. It may mean you work with legal counsel to clarify and interpret as clearly as possible the requirements of a law. For example, using the cell policy that is currently in effect, what does “hands free” legally mean? Should it include the Department of Motor Vehicles recommendation that sending and receiving texts messages is not safe and should be discouraged? As stated in a previous paragraph, the new law, effective January 1, 2009, takes the July 1, 2008 law one step further. It specifically prohibits “writing, sending, or reading text-based communication – including text messaging, instant messaging, and e-mail – on a wireless device or cell phone while driving”.

You have established a clear and concise policy; the next step in the process is to communicate the policy so employees understand the policy. Step 1 is to provide the policy electronically or in hard copy form and require the employee to sign a Confirmation of Receipt of the Policy. Communicating the policy may also include reasons or rationale for the policy. Providing reasons may actually help the employee understand the policy more clearly. Step 2 requires you, the employer to provide training about the policy. This includes explaining the policy to the employee and providing the employee the opportunity to ask questions about the policy so he/she understands the policy more clearly and therefore understands his/her responsibility for the policy. For instance, using the new “texting” policy as an example, the employer can emphasize how the new “texting” policy focuses on employee and company safety. The final step in the process is to monitor the policy’s effectiveness. Verify the policy is uniformly applied throughout the company and all employees, supervisors and managers are following the policy. If and when you find that employee, supervisors or managers are not complying with the policy you have an obligation to address the non-compliance. It might include additional training or clarification or some level of disciplinary action.

Remember the new “texting” law goes into effect on January 1, 2009 and now is the time to updae an existing policy or create a new cell phone policy.

Caution: Do Not Let Economic Stress Lead to Careless HR Practices

Several months ago I wrote about the stresses employees may face during an economic downturn. Little did we know then just how much more dire the economic news would become. During these bumpy economic times employees and managers may be faced with complex HR challenges that require careful management to ensure best HR practices are maintained.

Layoffs
An economic downturn may mean layoffs but employers can minimize their risk of wrongful termination claims with good HR practices. The first line of defense occurs when the employment relationship is established. Ideally all new business should have employees sign an agreement that protects the at-will employment status. If layoffs are on the horizon it is time to standardize termination procedures and train supervisors on protecting the at-will relationship. Supervisors must also be clear on the importance of consistency when layoffs occur. Companies should have objective, nondiscriminatory criteria when selecting employees for layoffs. If the layoff involves a worker with an actual or perceived disability employers should seek the advice of an experienced HR professional or legal counsel. The same advice applies if an employee has recently returned from a legally protected leave or if the employee has made harassment claims or reported safety violations.

Proper handling of the layoff process is the best possible way to avoid messy and costly discrimination and wrongful termination suits. It is very important to give an employee accurate information about why you are terminating their employment. Do not tell an employee you are laying them off for economic reasons if the termination is due to performance issues.

Wage & Hour Compliance
A Stanford Law Review article by John Donohue and Peter Siegelman (The Changing Nature of Employment Discrimination Litigation, 43 Stan. Law. Rev. 983 (1991)) has interesting information with regard to the relationship between the economy and employment litigation. Recessionary economies mean increased employment suits and damage awards also increase.
To avoid wage and hour compliance complaints you must carefully track hourly employee's time and accurately track and pay overtime wages. It is also important to enforce meal and rest break requirements. Be certain exempt employees are properly classified as misclassification is one of the most significant areas of employment litigation.

Workplace Violence
Times of economic stress may lead to an increased incidence of workplace violence. Employees may be coping with financial stresses at home and more demands at work as businesses seek to maintain productivity with a reduced workforce. A proactive approach can reduce your risk of workplace violence which can take both a financial and human toll.

Employers need a zero-tolerance policy that addresses violent acts and intimidation in the workplace. The policy should be communicated to all employees and must include reporting procedures as well as disciplinary action up to an including termination as a remedy.

Risk Management
Be particularly aware of risk management practices during an economic downturn. Stressed and overworked employees are less likely to carefully follow safety protocols which can lead to an increase in workplace injuries. Another serious concern is the potential increase in workers compensation claims as employees facing potential layoffs seek to replace their income. An economic downturn is also not the time to reduce safety training and equipment as a cost cutting measure because the long term consequences can be even more expensive.

Serious economic times call for sound HR polices and practices. A commitment to maintaining good HR fundamentals even when the economy is unsteady can help protect your assets and the human capital you rely on to keep your business on track.