• A managerial position.

• A position in the state Department of Justice.

• That of a sworn peace officer or other law enforcement position.

• A position for which the information contained in the report is required by law to be disclosed or obtained.

• A position that involves regular access, for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, to all of the following types of information of any one person: (A) Bank or credit card account information. (B) Social security number. (C) Date of birth.

• A position in which the person is, or would be, any of the following: (A) A named signatory on the bank or credit card account of the employer. (B) Authorized to transfer money on behalf of the employer. (C) Authorized to enter into financial contracts on behalf of the employer.

• A position that involves access to confidential or proprietary information, including a formula, pattern, compilation, program, device, method, technique, process or trade secret that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who may obtain economic value from the disclosure or use of the information, and (ii) is the subject of an effort that is reasonable under the circumstances to maintain secrecy of the information.

• A position that involves regular access to cash totaling ten thousand dollars ($10,000) or more of the employer, a customer, or client, during the workday.

A “managerial position” is defined as an employee who qualifies for the executive exemption set forth in the Industrial Welfare Commission’s Wage Orders. The test of who qualifies as an exempt executive is very detailed, and it is determined by the amount of pay and actual duties the employee performs. So employers need to approach this prong with caution and obtain guidance to ensure the employee actually qualifies as an exempt executive.

The new law also added the requirement under California Civil Code section 1785.20.5 that employers must notify the employee in writing of the basis in Labor Code section 1024.5 as set forth above that applies to permit the employer to perform the credit check. The new law does not change the other obligations already in effect that employers had to comply with prior to conduct a credit check. These obligations include informing the employee in writing that a credit check would be performed, the source of the credit check, and that the employee may receive a free copy of the credit check. Finally, if an adverse employment action is taken by the employer based on the report, the employee must be notified of the name and address of the reporting agency making the report.

All California employers are required to provide a notice to all employees hired beginning on January 1, 2012 that complies with the requirements of section 2810.5. The new law required the Labor Commissioner to publish a template for employers to use in order to comply with the new law. For more information regarding the notice, and the new law, see my previous post.

I’ve only had a chance to do a quick review of the template, but one area of new information that the DLSE is apparently requiring on the notice is whether the “employment agreement” is oral or written in the wage information section of the template. The new Labor Code section 2810.5 did not require this to be on the notice to the employee, but the law does provide that there may be “[o]ther information added by the Labor Commissioner as material and necessary.” I am wondering if the fact that all employers are required to provide this information on the form necessary means that the “employment agreement” is therefore always going to be written.

This also leads to the issue of why might an employer want to have all claims proceed directly to arbitration, and skip-over the Berman hearing. As the California Supreme Court stated in its initial review of the Sonic-Calabasas case in early 2011, the Berman hearing provides the employee a number of benefits:

These provisions include the Labor Commissioner's representation in the superior court of employees unable to afford counsel, the requirement that the employer post an undertaking in the amount of the award, and a one-way attorney fee provision that requires an employer that is unsuccessful in the appeal to pay the employee's attorney fees.

It is an interesting background on how the Sonic-Calabasas case proceeded through the Courts. The California Supreme Court has already ruled on the Sonic-Calabasas case in the early part of 2011. At that time, the Court held that a waiver of the Berman hearing process in the arbitration agreement was unconscionable and contrary to public policy, and was not preempted by the Federal Arbitration Act (FAA). Therefore, the California Supreme Court ruled that this waiver of the Berman hearing process was not an enforceable provision of the arbitration agreement. However, shortly after this ruling, the United States Supreme Court issued a ruling in AT&T Mobility v. Concepcion, a separate case out of California in which the US Supreme Court held that the FAA preempted California law and found that a class action waiver provision in arbitration agreements can be enforceable. For more information on AT&T Mobility you can listen to my podcast on the case here. The employer in Sonic-Calabasas A v. Moreno filed an appeal with the US Supreme Court to review the California Supreme Court’s ruling invalidating the Berman hearing waiver in the arbitration agreement. The US Supreme Court granted review, but recently sent the case back to the California Supreme Court to review the case again and to apply the standards set forth in AT&T Mobility v. Concepcion. So, we are waiting for the California Supreme Court to review the issue once again to have a definitive answer to the question.

The new law requires private employers to provide all newly-hired, non-overtime-exempt employees with a disclosure containing the following information:

(a) The job rate or rates of pay and whether it pays by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime.
(b) Any allowances claimed as part of the minimum wage, such as for uniforms, meals, and lodging.
(c) The employer's regular payday, subject to the Labor Code.
(d) The employer's name, including any “doing business as” names used.
(e) The address of the employer's main office or principal place of business, and its mailing address, if different.
(f) The employer's telephone number.
(g) The name, address, and telephone number of the employer’s workers’ compensation insurance carrier.
(h) Other information added by the Labor Commissioner as material and necessary.

The new law also requires employers to notify employees in writing of any changes to the information in the notice within seven calendar days of any changes, unless the changes are reflected on a timely wage statement that complies with Labor code Section 226. Employers also do not need to notify employees of any changes if the change is provided in another writing required by law within seven days of the changes.

The new law requires the Labor Commissioner to publish a template for employers to follow in order to comply with the law. The Labor Commissioner’s website states it is “anticipated” and the template will be published in mid-December. However, as of the publishing of this post, the Labor Commissioner has not yet published the template.

There is no prescribed requirement in the law about how long this notice should be retained, but as wage and hour violations contain a four year statute of limitations, these notices should be retained in the employee’s personnel file for four years. It is also important to note that the new law does not apply to exempt employees. However, if there is ever a challenge to the employee’s classification as exempt and they are found to be non-exempt, this provision could result in increased penalties. Therefore, it may be wise to complete this form for exempt employees just as a safety precaution.

California law is clear that while paid vacations are not required, if a California employer provides for paid vacations, these benefits are considered wages and are earned by the employee on a pro rata basis for each day of work. Moreover, because vacation is a form of deferred wages and vests as it is earned, vacation wages cannot be forfeited – so no "use-it-or-lose-it" policies. An employer can place a reasonable cap on vacation benefits that prevents an employee from earning vacation over a certain amount of hours, and the Division of Labor Standards Enforcement has opined that a cap that allows at least nine months for the employee to use the vacation after the vacation was earned is a reasonable cap. See DSLE Enforcement Policies and Interpretations Manual section 15.1.4.1. Moreover, Labor Code section 227.3 requires that when an employment relationship ends all vacation earned but not yet taken by the employee must be paid at the time of termination.

Governor Brown signed a number of new employment laws that take effect in January 2012.  During this webinar, we will cover the new obligations facing employers under these recently enacted employment laws as well as the proper steps employers should take to comply with them.  The discussion will also cover the recent oral argument in Brinker Restaurant Corp. v. Superior Court and what steps employers should take while waiting for the Supreme Court’s ruling.

Other topics will include:

• New laws effective January 2012, including:
  • Statute increasing the penalties for employers who misclassify independent contractors
  • What the Wage Theft Protection Act of 2011 means for employers
  • Gender identity and expression
  • Prohibiting e-verify requirements under the Employment Acceleration Act of 2011.
  • New requirement to provide health benefits during pregnancy disability leave
• Review of new developments that took place in 2011:
  • Development of case law upholding class action waivers in arbitration agreements
  • Payment requirements for non-resident employees working in California

The cost is $150 per connection (no fee for existing clients).  Click here for more information and to register. 

Take these three words that Ann Landers recommended as a test and try them with your team for one day (I dare you):

Good.True.Helpful.

If what you’re about to say or email to someone doesn’t meet two out of those three criteria, reword it or don’t say it at all.

Instead of saying “Late again, eh?” you can say “Mike, you’re a valuable member of this team, and when you’re late it hold up everyone’s progress. What can I do to help you?

Scott says that people using his recommendation don’t even need to use all three criteria – just two. Companies spend so much time thinking about what type of messages they send their customers through marketing and sales campaigns, but do they spend even 10% of that effort into thinking about how to communicate with its own employees? Give it a try, and I bet the payoff will show up in higher employee retention, higher morale, and less lawsuits.

I think Guy Kawasaki had a great perspective on this issue when I recently interviewed him. He said he would be worried about a job applicant who did not have a Facebook page: what is wrong with this person? Is he anti-social? Is he not with the times or just simply does not understand simple technology? As Mat points out as well, with some common sense a job applicant can easily manage the results of an online search by being careful about which information he or she provides to the employer. For example, an internet search for the job applicant’s private email address might turn up more personal information than if the applicant has a separate email they only use for work purposes and lists on their c.v.

From the employer’s perspective I don’t think the analysis changes much for searching employees background on the Internet:

• If using an outside company, make sure the background check complies with the Federal Fair Credit Reporting Act and any state equivalent
• Do not create fake identities in order to gain access to individual’s social networks
• Rely on common sense and make the determination about hiring or firing based on the same criteria that employers already use and not on any illegal criteria.

Generally, under Federal law, employers may utilize social networking sites to conduct background checks on employees if:

1. The employer and/or its agents conduct the background check themselves;
2. The site is readily accessible to the public;
3. The employer does not need to create a false alias to access the site;
4. The employer does not have to provide any false information to gain access to the site; and
5. The employer does not use the information learned from the site in a discriminatory manner or otherwise prohibited by law.

reward its fighters with bonuses (totaling $240,000 per year) for having the most twitter followers and the most creative tweets

If I were running a company, I would want my employees actively using their personal social media accounts to promote specials and new products. It is great that there are tools now available to track the success rate and to give incentives to employees who generate the most buzz. I can already hear other lawyers out there grumbling that this is a bad way to go, and that the company could find itself facing a lot of liability for what employees say on social networks. Every time an employee answers the phone they could create liability for a company, but companies still trust their employees to talk with vendors and customers. The game has changed, time to start communicating with customers where they are listening, and don’t let your policies hinder this.

There is nothing in California law that prohibits family members from working together. However, many companies institute non-fraternization or anti-nepotism policies as a safety measure to prevent work-place disputes that boil over from non-work relationships as well as to avoid claims of sexual harassment or discrimination. In fact, it is advisable for companies to have such policies.

One of the most problematic areas that arises is when two employees are dating, but the relationship goes sour. As you can imagine, this creates an awkward working environment that will take away from the employees’ productivity, in addition to exposing the company to a sexual harassment claim if one of the employees continues to pursue the other while at work. Also, if the relationship was between a supervisor and a subordinate, the company faces liability if the supervisor favors the person he/she is having the relationship with over other employees when making decisions about bonuses or promotions.

To avoid this problem, many companies have policies in place the either prohibit relationships at work, or some companies require the employees to disclose the relationship. Then the company can work with the employees to see if moving one or both employees to different divisions and/or locations within the company could prevent any potential problems should the relationship not workout in the future. Employers have to walk a fine-line however, because employees have an expectation of privacy about their personal lives while away from work, so employers cannot have too evasive policies. It is best to have a knowledge CA employment lawyer review the policy in advance.
 

In April 2010, the Department of Labor Standards Enforcement (DLSE) issued an opinion letter setting for the analysis it would conduct in making a determination regarding whether an intern is properly classified.  In its opinion letter, the DLSE set forth that it would examine the following factors:

1. The training, even though it includes actual operation o the employer’s facilities, is similar to that which would be given in a vocational school;
2. The training is for the benefit of the trainees or students;
3. The trainees or students do not displace regular employees, but work under their close observations;
4. The employer derives no immediate advantage from the activities of trainees or students, and on occasion the employer’s operations may be actually impeded;
5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

While these factors are a fairly loose test, an intern attempting to challenge the classification as an intern would probably have at least a few good facts to support their position. This is why California employers need to approach the intern classification with caution.

A general rule for Courts is found in Civil Code section 3513, which provides: “Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.” California courts have found that many of the Labor Code provisions are for the public good, and therefore cannot be waived by an employee.  

Labor Code Provisions An Employee Cannot Waive:

• Minimum Wage & Overtime

Labor Code Section 1194 provides a private right of action to enforce violations of minimum wage and overtime laws. That statute clearly voids any agreement between an employer and employee to work for less than minimum wage or not to receive overtime:

Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.

In Gentry v. Superior Court, the Supreme Court further explained:

[Labor Code] Section 510 provides that nonexempt employees will be paid one and one-half their wages for hours worked in excess of eight per day and 40 per week and twice their wages for work in excess of 12 hours a day or eight hours on the seventh day of work. Section 1194 provides a private right of action to enforce violations of minimum wage and overtime laws.
…
By its terms, the rights to the legal minimum wage and legal overtime compensation conferred by the statute are unwaivable. “Labor Code section 1194 confirms ‘a clear public policy . . . that is specifically directed at the enforcement of California’s minimum wage and overtime laws for the benefit of workers.’”

• Expense Reimbursement

Labor Code section 2802 requires employers to reimburse its employees for “necessary expenditures or losses incurred by the employee” while performing his or her job duties. Labor Code section 2804, clearly provides that an employee cannot waive this right to be reimbursed for or liable for the cost of doing business. Section 2804 provides, “Any contract or agreement, express or implied, made by any employee to waive the benefits of this article or any part thereof, is null and void….”

Labor Code Provisions An Employee May Be Able To Waive:

While it is unclear, the following items could possibly be waived by an employee. However, these areas are very unsettled, and employers should approach with caution when seeking waivers from employees on these issues.

• Meal Breaks

The California Supreme Court is currently reviewing the case Brinker v. Superior Court, that should address, among other issues, the standard regarding how employers need to provide meals breaks. At issue is whether employers need to simply “provide” employees with meal breaks, or on the other hand, “ensure” that employees take meal breaks. If the Supreme Court rules that employers only need to provide meal breaks, then if the employee chooses not to take the meal break, then arguably there would be no violation. The Supreme Court will hopefully issue a ruling on this case in 2010.

• Waiver To Participate In A Class Action

Given the increase in wage and hour class actions, employers began seeking agreements from their employees that if a dispute would arise about any wage and hour issue, the employee would agree to only seek remedies on an individual basis, not through a class action. The California Supreme Court reviewed the issue if an employee could enter into such an agreement and found that, “at least in some cases, the prohibition of classwide relief would undermine the vindication of the employees’ unwaivable statutory rights and would pose a serious obstacle to the enforcement of the state’s overtime laws.” The Court therefore set out a number of factors that a trial court must look at to determine whether the class action waiver is enforceable or not. As of February 2010, there has not been a class action waiver that has been upheld by an appellate court in California. So while there is the possibility of enforcing such waivers, this possibility is very slight.
 

Kris’ analysis is right on for a number of reasons. First, lawyers are trained to point out the risks of any situation to properly advise their clients. Second, lawyers are notoriously behind the technology curve. Most do not know what “new” technologies are being used or how to use them, and this creates concern as anyone is scared about what they do not know about.

Employment lawyers need to take heed of this critique. HR professionals have jobs to perform and companies to run. They need legal advice that helps them perform their jobs better – not scare them into failing to change and keeping up with the times.

Employment lawyers need to recognize that change entails risk. However, companies always have to change, and lawyers need to help companies navigate this risk, not prevent them from doing anything new.

Note to HR professionals

As you know, the HR profession is changing a lot given today’s new technologies. New issues are creating a lot of uncertainty. Issues such as how to use social networking sites to conduct background checks, monitoring employee’s internet use, and determining "hours worked" when employees always have a smart device on them.

When looking for legal advice about these issues, you need to be certain that your lawyer is familiar and up-to-date with the technology available. Does the lawyer who you are seeking legal advice from have a Twitter, Facebook, or LinkedIn account? Do they use an iPhone or Blackberry? If the answer to these questions are ‘no’ – don't be surprised if their advice is to avoid these “new” technologies.

1. Assuming everyone can be paid a salary, and not paying overtime for hours over 8 in one day or 40 in one week. For a company to not pay overtime, it has the burden of proof to establish that the employee meets an exemption to California’s overtime laws. The exemptions are based on the amount of pay the employee receives and the duties the employee performs.
2. Not researching particular laws that apply to the industry or city. For example, businesses in San Francisco have to provide for paid sick leave.
3. Not having a meal and rest break policy. It goes without saying, every company in California needs a meal and rest break policy – and evidence that this policy is regularly communicated to employees.
4. Not recording meal breaks. Employers are required to not only provide meal breaks, but also keep records of when the employee started and stopped the meal break.
5. Not paying accrued vacation when employment is severed. Accrued and unused vacation is considered wages under California law, and needs to be paid out at the end of employment regardless of whether the employee is fired or quits.
6. Overestimating the enforceability of covenants not to compete. Nine times out of ten, covenants not to compete are unenforceable in California.
7. Underestimating the importance of an employee handbook.
8. Assuming any worker can be classified as an independent contractor. Just like exempt employees, employers will bear the burden of proof when it comes to classifying independent contractors. Generally, the test is how much control the employer has over the worker.
9. Withholding the money necessary to hire an HR manager knowledgeable with California law.
10. Not reimbursing employees for business related expenses, such as travel expenses. Under Labor Code section 2802, employers are required to repay employees who pay for business related items out of their own pocket.

The employer, citing its mission to protect abused children and to protect itself from any legal liability, installed a video camera in Plaintiffs’ office to identify the perpetrator. Because the websites were only being access at night, the video camera did not record any of Plaintiffs’ activities during the day, and was only turned on at night. The perpetrator was not caught.  But Plaintiffs’ discovered the video camera in the office, and filed this lawsuit for violation of their privacy rights.

The California Supreme Court noted that to succeed on their privacy claims, Plaintiffs would need to prove that:

1. The plaintiff must possess a legally protected privacy interest,
2. The plaintiff’s expectations of privacy must be reasonable, and
3. The plaintiff must show that the intrusion is so serious in nature, scope, and actual or potential impact as to constitute an egregious breach of social norms.

The Court noted that Plaintiffs were able to establish violation of the first two elements in this case– that the employer intentionally intruded into the Plaintiffs’ office in which they had a reasonable expectation of privacy.

Offensiveness of the employer’s action

However, the Court held that Plaintiffs did not meet their burden of proof for the third element. First, the Court held that the degree and setting of the intrusion into Plaintiffs’ privacy was not very high. The Court noted that the “place, time, and scope” of defendant’s surveillance was not highly offensive. Second, the Court looked at the employers motive and justifications for conducting the surveillance – which had no element of being improper in this case. Given nature Hillsides’ business of helping abused children, it was taking proper action to prevent any possible harm to them. Given these factors, the Court found that the Plaintiffs could not, as a matter of law, prove that a reasonable person would find the intrusion into their privacy offensive.

Take away for employers

• Do not assume that you have the right to monitor employees during working hours. As the case establishes, employees still have reasonable expectations of privacy at work.
• Do not assume a computer monitoring policy applies to video and audio surveillance. The employer in this case tried to argue that the computer monitoring policy diminished Plaintiffs’ expectation of privacy at work, but the Court disagreed because the policy never mentioned the possibility that employees could be videotaped at work.

The case, Hernandez v. Hillsides, Inc. can be read here (PDF).
 

California courts have clearly established that noncompetition agreements are very difficult to enforce under California law, as explained further below. Therefore, once Donatelli left employment with EMC, the company raced to file a lawsuit against the former employee to prevent him from working with HP in Massachusetts. HP also raced to file a lawsuit in California barring EMC from enforcing the noncompetition agreement.

The Massachusetts court ruled first, finding that the agreement was enforceable under Massachusetts law, and that California law does cannot affect the court’s ruling. The court allowed Donatelli to present evidence establishing that his duties and job at HP did not directly compete with his former position at EMC. The court allowed Donatelli to work for HP in California given the fact that he proved there is minimal overlap between his new HP position and his former position at EMC.

Noncompetition Agreements In California

In California, noncompetition agreements are governed by Business & Professions Code section 16600, which states: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” The statute permits noncompetition agreements in the context of sale or dissolution of corporations (§ 16601), partnerships (§ 16602), and limited liability corporations (§ 16602.5).

Under the common law, as still recognized by many states today, contractual restraints on the practice of a profession, business, or trade, were considered valid, as long as they were reasonably imposed.

In 2008, the California Supreme Court ruled on the enforceability of noncompetition agreements under California in Edwards v. Arthur Andersen LLP. Arthur Andersen argued that California courts have held that section 16600 embrace the rule of reasonableness in evaluating competitive restraints.

The Court disagreed with Arthur Andersen, and noted:

We conclude that Andersen’s noncompetition agreement was invalid. As the Court of Appeal observed, “The first challenged clause prohibited Edwards, for an 18-month period, from performing professional services of the type he had provided while at Andersen, for any client on whose account he had worked during 18 months prior to his termination. The second challenged clause prohibited Edwards, for a year after termination, from ‘soliciting,’ defined by the agreement as providing professional services to any client of Andersen’s Los Angeles office.” The agreement restricted Edwards from performing work for Andersen’s Los Angeles clients and therefore restricted his ability to practice his accounting profession.

The Court found that this agreement was invalid because it restrained Edwards’ ability to practice his profession.

However, Arthur Andersen argued that section 16600 has a “narrow-restraint” exception and that its agreement with Edwards survives under this exception. Andersen pointed out that a federal court in International Business Machines Corp. v. Bajorek (9th Cir. 1999) upheld an agreement mandating that an employee forfeits stock options if employed by a competitor within six months of leaving employment. Andersen also noted that a Ninth Circuit federal court in General Commercial Packaging v. TPS Package (9th Cir. 1997) held that a contractual provision barring one party from courting a specific customer was not an illegal restraint of trade prohibited by section 16600, because it did not “entirely preclude[]” the party from pursuing its trade or business.

In refusing to accept the “narrow-restraint” exception for noncompetition agreements in California, the Court stated:

Contrary to Andersen’s belief, however, California courts have not embraced the Ninth Circuit’s narrow-restraint exception. Indeed, no reported California state court decision has endorsed the Ninth Circuit’s reasoning, and we are of the view that California courts “have been clear in their expression that section 16600 represents a strong public policy of the state which should not be diluted by judicial fiat.” [citation] Section 16600 is unambiguous, and if the Legislature intended the statute to apply only to restraints that were unreasonable or overbroad, it could have included language to that effect. We reject Andersen’s contention that we should adopt a narrow-restraint exception to section 16600 and leave it to the Legislature, if it chooses, either to relax the statutory restrictions or adopt additional exceptions to the prohibition-against-restraint rule under section 16600.

The Court’s ruling basically eliminated the validity of non-competition agreements under California that are not expressly provided for in Section 16600.

As layoffs sweep across industries, employees' personal information is winding up in the dustbin, as well. Most workers know better than to store personal files on their office computer. But employees who spend the majority of their time at the office often treat the company PC as their personal gadget, filling it with music, photos, personal contacts -- even using the computer's calendar to track a child's soccer schedule. That makes it all the more distressing when a newly laid-off worker learns that his digital belongings are company property.

The author correctly notes that what information is the employee’s as opposed to the employers is probably going to be set forth in and governed by the employer’s policies. Often times these policies will be provided to the employee when he or she first starts:

Employees worried about their job security should review the forms they signed when they were hired. They should look at the company's electronic communications policy, employee guidelines and non-compete agreements to make sure they understand everything properly. When employees sign these agreements, they should also make copies to save at home, too, Ms. Yancey says. Those that break these agreements risk being fired or sued by their employer, she adds.

It is important to note that in California, it is extremely difficult for employers to enforce non-competition agreements due to a California Supreme Court ruling in Edwards v. Arthur Andersen last year. California employers can still protect company information through other means, such as establishing that the information is a trade secret, or is proprietary information.

Steps California Employers Should Take To Avoid Litigation Over Electronic Data

• California employers need to establish a clear policy that establishes that the employee does not have any privacy expectation in any data stored on company owned computers or devises.
• The policy should establish that all aspects of an employee’s use of company equipment can be monitored.
• Employers need to have the employees sign an acknowledgment of electronic data and monitoring policy.
• The employer should remind employees of the electronic data policy at least every year.
• If employers do have trade secrets, they need to maintain strict protocols to ensure that only employees with a “need to know” have access to the information and take steps to ensure that the information is protected.
• If an employee who has been laid off requests personal information from his or her computer such as family pictures, an employer’s accommodation of this request will be somewhat of a step towards minimizing the employee’s ill-will towards the company (and less likely to pursue litigation against the company).
   

Don’t avoid or ignore workplace conflicts.

Letting conflict fester will lead to litigation. If managers get involved in workplace conflicts early and often, it is more likely that the situation will be dealt with before a party thinks their rights have been violated and they need a lawyer.

Have a discussion with both workers involved in the conflict together.

Lay a few ground rules for the discussion:

• Everyone will be heard (the supervisor will have to enforce this rule)
• One speaker and one conversation at a time
• Challenges are acceptable, must be respectful
• Focus on issue (project, assignment, task at hand, etc.)
• The workers can only use “I” statements NOT “YOU” statements (Example: “I received the information too late to include in my report.” Not: “You got it to me too late.”)
• No personal attacks – criticism must be of acts, not the other person (Example: “That project is a waste of company time.” Not: “You are wasting my time.”)
• Set clear guidelines on what is expected of the workers on a going forward basis (It is recommended to document these steps.)

Know when conflict crosses the line to create legal liability.

Managers should always be thinking about whether the conflict crosses the line from simple workplace disputes or personality conflicts into actionable harassment, discrimination or retaliation.

Provide reprimands the right way.

Managers should think through how to approach an employee when giving them a warning, either verbal or written. Here are a few suggestions:

• The warnings should not be administered in front of other employees.
• The manager should think through how the discussion will go, and possible responses to different reactions from the employee.
• Set out the clear expectation of what the employee needs to do to correct the problem.
• Document the warnings – even verbal warnings to employees. If the warning is a written warning, have the employee sign the warning.  If they refuse to sign it, record on the document that the employee refused to sign.

The presentation available from the DOL's site is about 2 hours long. I have not yet listened to the webcast, so I cannot recommend whether or not it is informative, but the price is right - free. Below are the PowerPoint slides used during the presentation:

Here are some other related links employers may find helpful:

Fact Sheet on Premium Reduction Under ARRA
http://www.dol.gov/ebsa/newsroom/fsCOBRApremiumreduction.html

Model Notices
http://www.dol.gov/ebsa/COBRAmodelnotice.html

Department of Labor (DOL) FAQs on Premium Reduction Under ARRA
http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionER.html

Internal Revenue Service (IRS) FAQs on Premium Reduction Under ARRA
http://www.irs.gov/newsroom/article/0,,id=204708,00.html

Form 941
http://www.irs.gov/pub/irs-pdf/f941.pdf

Form 941 Instructions
http://www.irs.gov/pub/irs-pdf/i941.pdf

DOL COBRA Web page
www.dol.gov/COBRA

IRS COBRA Web page
http://www.irs.gov/newsroom/article/0,,id=204505,00.html