Planning, Training and Investigations
In the employment and labor law arena, the adage that an ounce of prevention is worth a pound of cure is particularly true. Many work-related legal issues are preventable. They start small and appear routine: an employee complains of being treated differently or too harshly by a supervisor; two employees begin to date; a manager offends a subordinate with ribald jokes and comments; or an employee complains of back pain and asks to be temporarily relieved of certain tasks. Too often these types of circumstances, readily navigable at inception, fester and ultimately morph into difficult legal matters due to employer inaction. Avoiding this self-defeating tendency through planning, training and self-examination is a major focus of our practice.
Human Resources Policies, Procedures & Infrastructure
In our experience, structure is the first step toward prevention. It is not uncommon for a new enterprise (particularly in the technology industry) to give little consideration to constructing a human resources platform; there are seemingly more important issues at hand, such as securing capital, developing products, and reaching customers. Employment contracts are scratched out on napkins. Policy manuals are borrowed wholesale from fundamentally different industries or businesses. An already overworked employee with strong technical skills and a can-do attitude is tasked with the additional responsibility of managing personnel issues. It also is not uncommon for more mature organizations, especially rapidly growing ones, to allow their business expansion to outstrip their underlying human resources infrastructure. Both scenarios present significant potential problems, including legal exposure. It does not have to be this way. We routinely assist employers, large and small, public and private, and at all stages of development, in developing or adjusting their personnel administration infrastructure to meet their ever-changing needs. At the most basic level, this involves developing and implementing, tailoring and drafting checklists, policies and procedures (typically in the form of an employee manual or handbook), internal complaint procedures and reporting mechanisms, contracts, notices releases and consent forms, and other documents and processes that are critical to timely, consistent and lawful personnel administration and labor relations.
Self-examination is also critical to early detection of actual and potential problems. Consequently, we develop, conduct and/or assist clients in conducting internal audits of all or specific dimensions of their personnel practices, policies, forms and infrastructure. These efforts are tailored to the client’s specific needs, resources and culture, and include detailed review of one or more of the following:
- overtime exemption classifications;
- pay practices related to travel time, breaks and rest periods, and on-call time;
- time recording;
- workplace posting and notice requirements;
- hiring, recruiting and testing practices;
- discharge practices;
- covenants not to compete, solicit or hire;
- other documents and procedures intended to preserve the integrity and confidentiality of proprietary information and other business assets:
- EEO policies and practices;
- executive compensation;
- administration and coordination of workers’ compensation claims, leaves of absence, and efforts at providing reasonable accommodation;
- job descriptions and essential function analyses; and
- benefits administration.
Policies, procedures, self-audits and the like often are only as effective as the people responsible for administering them. Consequently, management training is a key dimension of any effective planning strategy. Managers and supervisors play a critical gate-keeping function. In most instances, their knowledge of work-related issues is imputed to their employer. They are the employer for purposes of actual and constructive notice. Their most fundamental responsibility is to recognize potential legal issues and, at a minimum, bring them to the attention of in-house counsel, human resources personnel and/or other appropriate persons. Many employers have found themselves facing liability for failing to timely or effectively respond to an employment or labor issue that an individual manager or supervisor knew of, but neglected to share any further. Given these realities, we offer services intended to educate managers and supervisors to readily recognize and report potential issues, if not personally address them, including on-site, group training sessions, as well as individual tutorials. We strive to educate clients on the foundational principles of employment and labor law and keep them abreast of material developments as they occur. We strongly believe that an educated client is a better client.
A proper and effective response to employment and labor-related complaints and other issues requires a thorough knowledge of the relevant facts and circumstances, which, in turn, may require formal investigation. We have substantial experience and expertise advising clients on the numerous practical and legal issues related to the investigative process:
- Is an investigation necessary?
- Who should conduct it?
- What is the appropriate scope?
- Should it be conducted by or at the direction of counsel so as to preserve potential application of the work product doctrine or the attorney-client privilege?
- Is the investigator tasked with just creating a factual record, or rendering findings and conclusions as well?
- How much information may or should be provided to witnesses who are interviewed?
- When and where should interviews be conducted?
- May or will interviews be recorded?
- What if a witness wants a third person present?
- Should witnesses be asked to sign statements?
- Are personnel-related adjustments required or advised during the pending investigation?
- Does the person who is the subject of the investigation have Loudermill or Weingarten rights?
- Will the investigation conclude with a written report?
- If so, who will have access to the report?
- How will the employer address concerns about retaliation?
In addition to planning and managing work-related investigations, our lawyers have established relationships with qualified investigators, lawyers and non-lawyers alike, as well as substantial experience conducting investigations themselves. Finally, our lawyers have equally deep experience advising clients regarding necessary or appropriate remedial action once the investigation concludes. Throughout the entire process, we place special emphasis on keeping the complaint or issue in perspective and conducting the investigation and implementing remedial action in a tone and manner that are consistent with the employer’s culture and other business objectives.