Whether it’s on Facebook or television, hearing news involving some sort of labor and employment dispute is inevitable, particularly stories involving lawsuits over executive-level employment contracts and workplace sexual harassment. In today’s revolving door employment environment, both employers and employees can benefit from the legal advice of an experienced labor and employment lawyer. Those who don’t quickly learn that the phrase “It’s better to be safe than sorry” can apply to a variety of labor and employment law matters.
“For both the employee and the employer, there can be significant pitfalls that could be avoided with proper legal guidance,” says Jim Birch, a labor and employment lawyer with Quilling, Selander, Lownds, Winslett & Moser, P.C. “While this is true when it comes to taxes, wages and bonuses, and incentive payments, recent developments point out the importance of dealing with compliance obligations in the initial employment agreement. It is important to craft an employment agreement early on that carefully sets out the rights and responsibilities of both parties, including the employee’s obligations to comply with the employer’s code of conduct, anti-harassment and EEO policies. The agreements should establish all relevant terms and conditions, even if an employee as ‘at will’ and can be terminated without cause.”
Some labor and employment disputes involve more than a contractual issue. Sexual harassment in the workplace has become one of the most high profile types of employment disputes recently. Employers who are not familiar with sexual harassment law, or who do not retain specialized legal counsel for advice, may want to expand their knowledge and resources. “Companies can be subject to costly lawsuits in addition to bad press coverage if they are not trained and educated on their obligations to prevent and remedy sexual harassment in the workplace,” says Christie Newkirk, an employment law lawyer with Quilling, Selander, Lownds, Winslett & Moser, P.C. “It’s important that both employers and employees know and understand their rights.”
The common denominator between employment agreements and sexual harassment in the workplace is that both the employee and the employer benefit from establishing their respective legal responsibilities and from putting as many protections in place as possible.
Birch recommends the following steps when it comes to negotiating an employee agreement:
– Spell out the obligations. In addition to your job titles and responsibilities, the employer will want to spell out the expectations with regard to compliance with company policies and procedures. More companies are including measurements of an executive’s compliance with laws and policies as a performance matrix for purposes of bonus and incentive compensation
– Establish compensation. Will this job be base plus bonuses and incentives? Will there be benefits? What about perks and allowances? This is not only important because of compensation, but also because of how it will affect taxes and income disclosure. Again, legal and policy compliance are being given greater emphasis in the compensation calculation.
– Determine the rights and responsibilities of both parties upon termination. What are the consequences for termination with cause or without cause? Will there be separation benefits? Is there a term limit on the contract? “This is usually the most important part of the agreement so that everyone knows what to expect if in the event a termination occurs,” Birch says.
– Establish the non-compete agreement. This is where both the company and the employee should have their rights explicitly spelled out regarding internal details about the company and proprietary information post-employment. Restricting use of confidential information and protection of trade secrets fall under this category.
– Understand enforcement mechanisms. The law applies differently among states. For instance, if you have employees in Delaware and in Texas, you’ll need to understand labor and employment laws in both states. Likewise, the employer may want to consider the use of alternative dispute resolution provisions, such as mediation or arbitration for disputes arising under or relating to an employment contract. However, employers should be watching the recent movement in Congress that may limit the use of arbitration and confidential settlements in the resolution of claims of sexual harassment and workplace discrimination.
News and social media are currently replete with allegations of sexual harassment and corresponding resignations. Newkirk warns that while the targets right now are well known individuals and companies, local employers need to recognize that the heightened scrutiny on how women are treated in the workplace applies to them as well. Ideally, employers should create a work environment where this conduct does not occur; however, since workplaces are imperfect, employers also need to create an environment where workers feel comfortable reporting inappropriate conduct, knowing that it will be appropriately addressed.
Newkirk recommends employers consider taking the following steps in light of recent events:
– Culture starts at the top. The executive team needs to set the tone. First, their own conduct needs to be above reproach. This demonstrates to lower level management the type of conduct that is expected if they plan to succeed in the company. Second, the executive team must not tolerate and must respond to inappropriate conduct. For instance, if a dirty joke is told, the executive who hears it should make clear (even if in an informal way) that the joke is inappropriate.
– There is no offense like a good defense. Employers should have a policy prohibiting gender discrimination and sexual harassment and ensure that it is communicated to all employees. The policy should specifically set forth what sorts of conduct are prohibited and, even more importantly, what to do if an employee has a complaint. Regular training of management and non-management employees is critical to reinforce the importance of the policy and the procedure to report complaints. Finally, human resources, or if a company does not have human resources, then the executives, need to get to know and gain the trust of those working in branch offices so that those employees feel comfortable reporting concerns (even if the concerns are about the highest-ranking employee at the branch office).
– Fix problems. No workplace is perfect and sometimes inappropriate conduct occurs. If it does, fix it. Employers should quickly investigate complaints – as confidentially as possible – and take prompt remedial action, which can range from coaching or a written warning to re-training or termination. Often, handling a complaint promptly and fairly will resolve the issue. But, employers must also ensure the complainant is not subjected to retaliation (whether the complaint was with or without merit). To do this, employers should carefully scrutinize any disciplinary or other employment decision with regard to the complainant over the next few months to ensure the decision is fair and not retaliatory. And, the employer should ensure that the complainant knows that they should immediately report any concerns about retaliation.
For more information on labor and employment law for both employers and employees, contact the labor and employment attorneys at Quilling, Selander, Lownds, Winslett & Moser, P.C.
Jim Birch represents business clients in all aspects of labor and employment law and in commercial litigation. During 33 years of practice, he has assisted businesses in a variety of industries, including outsourcing, information technology, insurance, healthcare, hospitality, manufacturing, retail and wholesale, transportation, media, professional services, banking, and construction. In addition to counseling clients on compliance with labor and employment laws and employee benefits, Birch represents employers in court, administrative and arbitration proceedings in individual, class and collective actions. He represents clients in whistleblower, corporate compliance, and internal investigation matters as well as trade secret and confidential information litigation, including covenants not to compete. He also represents professionals and executives in employment and separation agreements.
Christie Newkirk regularly represents companies on a wide range of employment law issues. During her more than 20 years of practice, she has represented employers by counseling them on compliance with employment laws, defending them in litigation and administrative proceedings, serving as an investigator when a C-level employee has been accused of misconduct, and providing training to executive teams, management and non-management employees on various employment law issues. Newkirk also provides assistance to employers and executives by reviewing employment agreements and restrictive covenants (such as non-competition and non-solicitation agreements) as well as assisting with due diligence in commercial transactions. She also regularly assists corporate clients with drafting and/or reviewing employee handbooks and employment related policies.
“For both the employee and the employer, there can be significant pitfalls that could be avoided with proper legal guidance,” says Jim Birch, a labor and employment lawyer with Quilling, Selander, Lownds, Winslett & Moser, P.C. “While this is true when it comes to taxes, wages and bonuses, and incentive payments, recent developments point out the importance of dealing with compliance obligations in the initial employment agreement. It is important to craft an employment agreement early on that carefully sets out the rights and responsibilities of both parties, including the employee’s obligations to comply with the employer’s code of conduct, anti-harassment and EEO policies. The agreements should establish all relevant terms and conditions, even if an employee as ‘at will’ and can be terminated without cause.”
“It’s important that both employers and employees know and understand their rights.”
Some labor and employment disputes involve more than a contractual issue. Sexual harassment in the workplace has become one of the most high profile types of employment disputes recently. Employers who are not familiar with sexual harassment law, or who do not retain specialized legal counsel for advice, may want to expand their knowledge and resources. “Companies can be subject to costly lawsuits in addition to bad press coverage if they are not trained and educated on their obligations to prevent and remedy sexual harassment in the workplace,” says Christie Newkirk, an employment law lawyer with Quilling, Selander, Lownds, Winslett & Moser, P.C. “It’s important that both employers and employees know and understand their rights.”
The common denominator between employment agreements and sexual harassment in the workplace is that both the employee and the employer benefit from establishing their respective legal responsibilities and from putting as many protections in place as possible.
Employment Agreements:
Birch recommends the following steps when it comes to negotiating an employee agreement:
– Spell out the obligations. In addition to your job titles and responsibilities, the employer will want to spell out the expectations with regard to compliance with company policies and procedures. More companies are including measurements of an executive’s compliance with laws and policies as a performance matrix for purposes of bonus and incentive compensation
– Establish compensation. Will this job be base plus bonuses and incentives? Will there be benefits? What about perks and allowances? This is not only important because of compensation, but also because of how it will affect taxes and income disclosure. Again, legal and policy compliance are being given greater emphasis in the compensation calculation.
– Determine the rights and responsibilities of both parties upon termination. What are the consequences for termination with cause or without cause? Will there be separation benefits? Is there a term limit on the contract? “This is usually the most important part of the agreement so that everyone knows what to expect if in the event a termination occurs,” Birch says.
– Establish the non-compete agreement. This is where both the company and the employee should have their rights explicitly spelled out regarding internal details about the company and proprietary information post-employment. Restricting use of confidential information and protection of trade secrets fall under this category.
– Understand enforcement mechanisms. The law applies differently among states. For instance, if you have employees in Delaware and in Texas, you’ll need to understand labor and employment laws in both states. Likewise, the employer may want to consider the use of alternative dispute resolution provisions, such as mediation or arbitration for disputes arising under or relating to an employment contract. However, employers should be watching the recent movement in Congress that may limit the use of arbitration and confidential settlements in the resolution of claims of sexual harassment and workplace discrimination.
Sexual Harassment – The Post #MeToo Workplace
News and social media are currently replete with allegations of sexual harassment and corresponding resignations. Newkirk warns that while the targets right now are well known individuals and companies, local employers need to recognize that the heightened scrutiny on how women are treated in the workplace applies to them as well. Ideally, employers should create a work environment where this conduct does not occur; however, since workplaces are imperfect, employers also need to create an environment where workers feel comfortable reporting inappropriate conduct, knowing that it will be appropriately addressed.
Newkirk recommends employers consider taking the following steps in light of recent events:
– Culture starts at the top. The executive team needs to set the tone. First, their own conduct needs to be above reproach. This demonstrates to lower level management the type of conduct that is expected if they plan to succeed in the company. Second, the executive team must not tolerate and must respond to inappropriate conduct. For instance, if a dirty joke is told, the executive who hears it should make clear (even if in an informal way) that the joke is inappropriate.
– There is no offense like a good defense. Employers should have a policy prohibiting gender discrimination and sexual harassment and ensure that it is communicated to all employees. The policy should specifically set forth what sorts of conduct are prohibited and, even more importantly, what to do if an employee has a complaint. Regular training of management and non-management employees is critical to reinforce the importance of the policy and the procedure to report complaints. Finally, human resources, or if a company does not have human resources, then the executives, need to get to know and gain the trust of those working in branch offices so that those employees feel comfortable reporting concerns (even if the concerns are about the highest-ranking employee at the branch office).
– Fix problems. No workplace is perfect and sometimes inappropriate conduct occurs. If it does, fix it. Employers should quickly investigate complaints – as confidentially as possible – and take prompt remedial action, which can range from coaching or a written warning to re-training or termination. Often, handling a complaint promptly and fairly will resolve the issue. But, employers must also ensure the complainant is not subjected to retaliation (whether the complaint was with or without merit). To do this, employers should carefully scrutinize any disciplinary or other employment decision with regard to the complainant over the next few months to ensure the decision is fair and not retaliatory. And, the employer should ensure that the complainant knows that they should immediately report any concerns about retaliation.
For more information on labor and employment law for both employers and employees, contact the labor and employment attorneys at Quilling, Selander, Lownds, Winslett & Moser, P.C.
Jim Birch represents business clients in all aspects of labor and employment law and in commercial litigation. During 33 years of practice, he has assisted businesses in a variety of industries, including outsourcing, information technology, insurance, healthcare, hospitality, manufacturing, retail and wholesale, transportation, media, professional services, banking, and construction. In addition to counseling clients on compliance with labor and employment laws and employee benefits, Birch represents employers in court, administrative and arbitration proceedings in individual, class and collective actions. He represents clients in whistleblower, corporate compliance, and internal investigation matters as well as trade secret and confidential information litigation, including covenants not to compete. He also represents professionals and executives in employment and separation agreements.
Christie Newkirk regularly represents companies on a wide range of employment law issues. During her more than 20 years of practice, she has represented employers by counseling them on compliance with employment laws, defending them in litigation and administrative proceedings, serving as an investigator when a C-level employee has been accused of misconduct, and providing training to executive teams, management and non-management employees on various employment law issues. Newkirk also provides assistance to employers and executives by reviewing employment agreements and restrictive covenants (such as non-competition and non-solicitation agreements) as well as assisting with due diligence in commercial transactions. She also regularly assists corporate clients with drafting and/or reviewing employee handbooks and employment related policies.
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