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Bar News - January 4, 2008


Law Practice Management: A New Year’s Resolution: Review Employment Handbooks and Policies

By:

Julie A. Moore

Molly McPartlin

Dentists who don’t go for dental checkups and contractors whose houses are perpetually unfinished are good company for attorneys who advise clients to keep policies current, but who themselves have employee manuals last updated in the late 1990s (or before!). With the demanding and deadline-focused nature of a law practice, it is easy to let the task of updating the firm’s policies and procedures fall to the bottom of the firm’s to-do list for months or years on end.

Law firms are businesses like any other, and the need for sound employment policies is just as acute for a law firm as it is for any other organization with employees. Now that the holidays are a pleasant memory and January is upon us, it is the ideal time for law firms to make their own New Year’s resolutions. Ever-changing technology and workplace laws and regulations make such updates not only prudent but necessary.

The New Hampshire Legislature has been busy in 2007 making laws that will impact employers-and law firms-beginning in 2008. A sampling is as follows:

Civil Union Law

On January 1, 2008, New Hampshire’s civil union law went into effect. It provides that same-gender couples that have entered into a civil union have the same rights as married couples. The law applies not only to civil unions entered into in New Hampshire, but also to civil unions made prior to January 1, 2008 in other states. As of January 1, domestic partners are eligible for certain health and other benefits provided by employers to employees and their spouses. Law firms should notify all employees of this change and be prepared to provide certain benefits to same-sex couples.

There is currently no federal civil union law, so domestic partners are not legally afforded certain federal benefits, such as Family and Medical Leave Act (FMLA) leave. Accordingly, employers could lawfully refuse to extend FMLA benefits to couples in civil unions despite offering these benefits to married couples. Law firms should make policy decisions regarding this and other benefits not mandated under this new legislation. Employee handbooks should be reviewed and revised, consistent with this new law and the firm’s philosophy on providing benefits, where discretion is afforded.

Dependent Care Coverage for Divorced Spouses

Another bill going into effect on January 1, 2008 is SB 197, which allows former spouses and eligible dependents to remain covered by the subscriber’s health insurance coverage for up to 36 months following a divorce decree. This bill impacts divorces finalized after January 1, 2008, but applies to coverage in effect prior to that date. The bill also affects continuation of benefits for former spouses and dependents, in most cases allowing for 36 months of continuation coverage.

New I-9 Forms for Hiring

The federal government has been busy as well, updating the I-9 form required to prove worker identity and employment eligibility to eliminate several documents from the accepted list of identification. While this change was announced months ago, it went into effect as of January 1 and firms must now utilize the new form, available at http://www.uscis.gov/i-9.

A firm’s hiring and orientation practices should be modified accordingly.

In addition, law firms should ensure that they have kept pace with other recent legislative developments relative to disability accommodation and time off for crime victims, for example.

Disability Accommodation

Although not new as of January 1, law firms should be aware that New Hampshire law now requires that certain employers accommodate employees with particular disabilities. This new law was effective as of a year ago, and is consistent with the Americans with Disabilities Act (ADA). This requirement applies to all New Hampshire law firms/employers with 6 or more workers. Employers are obligated to engage in an interactive process with a qualifying employee to determine if the essential functions of the employee’s job could be performed with a reasonable accommodation. Reasonable accommodations include workspace changes such as new keyboards, schedule adjustments for employees for whom it is feasible, and changes to the workspace to accommodate particular injuries or rehabilitative equipment. Accommodations that may be deemed unreasonable are schedule changes that do not fit with usual business hours and unduly costly modifications to the office or workspace. Case law goes both ways on the issue of employees telecommuting from home.

Employee handbooks should be modified to include a policy that addresses disability accommodation, which includes the name(s) of persons within the firm to whom employee requests for a disability accommodation should be made.

Lawyers should also know of another important amendment to this law, when advising clients. Non-profit charitable and educational corporations and associations are now included in the definition of "employer" and, thus, are subject to the law’s reach.

Crime Victim Leave Law

The Crime Victim Employment Leave Act, which went into effect January 1, 2006, requires that covered employers allow employees who are victims of certain crimes to leave work to attend court or other legal investigative proceedings associated with the prosecution of the crime. Law firms are uniquely situated to understand how much time these proceedings can take and the stress associated with attending hearings and other court functions as a witness or crime victim. Employers are not required to compensate employees for time spent out of work, but are required to allow employees to utilize earned time if it is available to them.

Employee manuals should be revised to include a policy addressing this leave of absence, and law firms should review the law carefully to address properly all of the law’s provisions.

Timely Additions

While undertaking the task of updating the firm’s employee manual, the following topics are worthy of consideration, though currently not mandated by any state or federal laws:

Technology Policies

It is practically impossible to imagine a law office that could function without the use of e-mail, the Internet or cell phones. However, the importance of creating effective policies to govern the use of the technology that makes day-to-day life more efficient for lawyers and their staffs cannot be overlooked. Firms that allow unfettered access to the Internet may find that employees use it for improper purposes - or for excessive periods of time, interfering with work productivity. Employees viewing pornography or sending jokes or e-mails with sexual innuendos can give rise to hostile work environment claims from other employees or simply make other employees uncomfortable enough to adversely affect office morale. E-mail also makes bullying and harassment among employees easier.

Firms should advise employees as to acceptable uses of firm e-mail and the Internet by having a clearly drafted and applied technology/electronic communications policy. Firms also must consider whether they will allow use of instant messaging programs for communication among staff and attorneys and with clients. Most instant messaging programs do not automatically archive instant message chats, and the text of the communication can be difficult or impossible to retrieve. For these reasons, this medium may not be ideal for client communication but may be more efficient than e-mail for inter-office communication.

Firms also must determine what their policies will be with respect to electronic records retention and electronic file archive systems.

Blogging

While potentially part of a comprehensive technology policy, blogging raises issues that are unique to law firms. As the Internet offers the possibility of creating a public diary for millions of people, employers need to become concerned with what employees are saying about them on the Internet. Social networking sites such as Facebook and MySpace are not just for teenagers anymore. While there is no doubt that an employee has a protected right to free speech, for employees who work at law firms, an ever-present duty to protect client confidentiality exists. Firms should advise employees that the duty to keep client information confidential applies to attorneys and staff members alike, and that is true even when employees are off-site or engaging in Internet activity off hours.

Workplace Bullying/Civility Policies

While workplace bullying is not contrary to the law, there is no doubt that it causes reduced productivity and upset in the workplace and is contrary to accepted norms of behavior. It is becoming increasingly common for employers to adopt anti-bullying policies that are akin to sexual harassment policies, complete with reporting mechanisms and remedial measures to be taken against the bully. Bullying is not limited to physical intimidation, but can also include such conduct as yelling, insults, disrespectful tones of voice, and personal attacks, whether issued in person or via e-mail, instant messaging, voice mail or text message. Law firms should define what bullying means in their workplace, and send a clear written message to employees that it won’t be tolerated.

Workplace Violence

Although most people cannot fathom a violent act taking place in their offices, the sad fact in today’s world is that employers should be aware that such things happen and take precautions. A no-tolerance workplace violence policy and training on workplace violence (conducted in conjunction with training on harassment, civility and bullying) will open employees’ eyes to the potential for a violent act and will encourage employees who have concerns to come forward. Law firms must also face the unpleasant prospect of disgruntled or emotionally volatile clients and advise staff of proper mechanisms for dealing with such people, whether it is to cut off contact or to seek intervention from an attorney or firm administrator.

Policies Must be Applicable to Actual Practices

A handbook provides the employer and employees with a known set of guidelines for the workplace, consistent with state and federal law and the firm’s culture. Importantly, a firm’s policies should match its practices. When reviewing and updating the firm’s handbook, it makes sense to consider whether policies that were drafted years ago are still being applied as they were written. If not, the firm should take action to either modify the policy to match the practice or vice versa. For example, the firm should not say that employees will be given a written performance evaluation on an annual basis if that does not actually happen in real life.

The New Hampshire Department of Labor has stated that the most common employer violation is failure to provide employees with written notice of wage and benefit information, including keeping these written policies up-to-date with changes. This violation is easily avoided by keeping policies current and keeping practices consistent with policies. This equally applies to offer letters.

Audit

While this article only touches on a few topics that law firms should consider, firms are well advised to keep current with recent case law and best practices. The 2003 Madeja v. MPB Corp. d/b/a Split Ballbearing case from the New Hampshire Supreme Court, for example, highlights the importance of sexual harassment policies, interactive training, and prompt investigations. Also in the recent past USERRA was revised, which affects military leave policies. The Fair Labor Standards Act (FLSA) was overhauled relative to employee classification, and it allows employers to escape some liability if they have drafted "safe harbor" policies. Issues related to identity theft and data breaches should be addressed. The definition of personnel file was recently changed and excludes information received from an employee on health, fitness, or lifestyle. Employers can now make additional lawful deductions from employee paychecks, including for employer-sponsored fitness facilities. "Pay cards" are now permissible instead of advising corporate paychecks or direct deposit.

In clients, attorneys should be aware of three decisions from the New Hampshire Supreme Court that recently clarified the law on noncompetes, nonsolicitation, and confidentiality agreements.

Finally, law firms should know that the law changed substantially on independent contractors, and additional criteria must be met by workers seeking to exempt themselves from employee status. New workplace posters are required on the issues of independent contractors and minimum wage.

New Year’s resolutions begin now. There is no time like the present to dust off that outdated employee handbook and update employment forms, revise policies, and make plans to educate all employees about the firm’s policies and appropriate workplace conduct. On tomorrow’s list? The gym and the dentist….Happy New Year!

Attorney Julie Moore is president and founder of Employment Practices Group in North Andover, Mass. Attorney Molly McPartlin works out of the Concord office of Employment Practices Group. Their practice focuses on risk-management issues for employers, including training seminars, internal investigations, policy development, and human resources consulting services. Julie has been a NH Bar member since 1992, and Molly was admitted in 2000.

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