Monthly Archives: October 2018

What Is Co-Employment and How Can It Benefit Your Business

Employers encounter a wide range of business jargon and terms throughout their day. Some are less common than the next. “Co-employment” is one such term. What exactly is co-employment, and how can it benefit your business?

The term co-employment loosely refers to any relationship in which an employee is employed by more than one employer. While this may sound strange or uncommon, it in fact happens more than one might expect. This relationship typically falls into one of three categories:

  1. Joint-Employer
  2. Employer-of-Record
  3. Professional Employer Outsourcing (or Organization)

1) Joint-Employer

When an employee works for two employers simultaneously, and in the best of interest of both employers, these businesses are known as joint-employers.

An example of this type of relationship made the news recently when a manager for two small regional airlines sued one of his employers for FMLA violations. This employer only had 30 employees and therefor fell below the minimum FMLA threshold of 50 employees. The employer denied the claim on these grounds. However, the litigant simultaneously worked for another airline, which employed over 300 employees – well over the FMLA limit. The courts determined that the employee was co-employed equally by both businesses – both logos appeared on his business card, he represented both companies in negotiations, and his name appeared on both business directories. The court found the employee’s FMLA rights were indeed violated as the co-employer relationship between the businesses pushed their total over the 50 employee limit.

This type of relationship may in fact pose more of a risk to one employer or the other, as their combined employee size may expose them certain employment regulations that only apply to higher employee thresholds. Employers who co-employ workers should weigh the benefits of this type of relationship against some of the increased risks they may face.

2) Employer-of-Record

Another co-employment relationship can found with temporary staffing or contingent workforce relationships. This is also known as Employer-of-Record (EOR).

In these relationships, the staffing or contingent workforce firm acts as the EOR which legally employs their clients’ temporary or contingent workforce. The EOR hires and provides temporary staff to their clients, usually for short-term projects or seasonal work. In so doing, the EOR assumes all the core employment responsibilities typically shouldered by the business. This includes administering much of the IRS and HR regulatory compliance related to employees. The EOR issues their pay-checks, pays the associated payroll taxes, files the relevant quarterly and year-end taxes, covers the employees with workers’ compensation insurance, manages the employee benefits and administers unemployment claims and insurance.

Through this type employment relationship, the EOR protects its clients from a wide range of employment regulations and risks. The EOR manages workers’ compensation claims, hires, on-boards and terminates employees, performs background checks, and handles general employee relations activities for the contingent workforce.

For employers who need short-term staff but don’t want the hassle of recruiting, hiring and managing these employees, the Employer-of-Record route may be the perfect solution.

Termination of Employment in Cyprus

The Employment Law (100(1)/2000) in Cyprus includes both statute and case law. Specifically, Cyprus statute law contains issues related to the termination of employment, paid leave, annual social insurance, maternity leave, equal treatment at work e.t.c. The Labour Disputes Courts deals with issues related to the rights of employees and employers.

The Employment Law applies to every employee who has a contract or employment relationship in the private, public and semi-governmental sector.

The Employment Law does NOT apply to:

· employees whose total period of employment is less than one month;

· employees whose total hours of employment is less than eight hours in a given week;

· employees whose employment is of a casual nature and/or particular nature under the condition that in these cases the non-application of the Law is justified by objective reasons;

In this article, our employment lawyers will present the primary aspects of termination of employment in Cyprus, i.e. notice period, unlawful termination of employment and redundancy.

Under the Termination of Employment Law (24/1967), an employer intending to dismiss an employee, who has completed at least 26 weeks of continuous employment, is obliged to give the employee a minimum period of notice based on the length of his/her service, as illustrated below:

26 -51 weeks work (6 months- 1 year)

One week notice

52 – 103 weeks work (1-2 years)

Two weeks notice

104 – 155 weeks work (2-3 years)

Four weeks notice

156- 207 weeks work (3-4 years)

Five weeks notice

208 – 259 weeks work (4-5 years)

Six weeks notice

260 – 311 weeks work (5-6 years)

Seven weeks notice

More than 312 weeks work (more than 6 years)

Eight weeks notice

Unlawful termination of employment:

Following the Termination of Employment Law, an employee whose employment has been terminated unlawfully after completing 26 weeks of continuous employment with an employer is entitled to receive compensation. In addition, an employee who quit his/her job due to his/her employer’s conduct is also eligible to receive compensation. Second of all, it should be clarified that the amount of compensation is determined by the Labour Disputes Court following an application by the employee.

When assessing the amount of compensation, the Court takes into account the following criteria:

· The remuneration of the employee;

· The duration of employee’s service;

· The restriction of employee’s career prospects;

· The age of the employee;

· The circumstances of employee’s dismissal;

An employee cannot claim compensation if he/she terminated his/her employment for one of the following reasons:

· In case the termination of employment held as an outcome of redundancy, Act of God, war, riots, extreme weather conditions, etc.;

· In case of dismissal due to redundancy;

· In case the employment is terminated at the end of fixed-term contract;

· In case the dismissal is due to employee’s fault;

How to receive compensation for unlawful dismissal:

Submitting an application for unlawful dismissal compensation requires a professional legal support. An employment lawyer will assist you with all the necessary legal and administrative procedures so that to help you to get the compensation you deserve. Therefore, if you wish to receive a customised legal support contact one of our lawyers.

Redundancy:

The amount of redundancy payment is calculated as illustrated below:

Period of continuous employment

Amount of redundancy payment

Up to 4 years

2 Weeks wages for each year of continuous employment

More than 4 and up to 10 years

2.5 Weeks wages for each period of continuous employment

More than 10 and up to 15 years

3 Weeks wages for each year of continuous employment

More than 15 and up to 20 years

3.5 Weeks wages for each year of continuous employment

More than 20 and up to 25 years

4 Weeks wages for each year of continuous employment

How to claim redundancy payment:

In order to get payment from the Redundancy Fund, the employee must make a claim on the prescribed form, that can be found on Social Insurance Offices, Citizen’s Service Centre and the official website of the Ministry of Labour and Social Insurances.

Employment Law Basics for Hawaii Employers

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.” However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence. Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378. State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation. Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I. The Importance of Having an Effective Harassment Policy

A. The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court.

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”

The importance of the affirmative defense was significantly increased by a U.S. Supreme Court’s decision in which the Court held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense.

B. Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure.

(1) Write in simple English.

(2) Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3) State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4) Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company.

(5) Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders.

(6) Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7) State that employees who report prohibited conduct will be protected from retaliation.

(8) State that the employer will promptly investigate the matter in an objective and discrete manner.

(9) Provide the form of disciplinary action to which offenders can expect to be subjected.

(10) State that the employer will also take remedial action.

(11) Train your management employees and line employees on the policy and procedure.

(12) Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy.

C. The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment. However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense.

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a) Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1) Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2) Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3) That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c) An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d) With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D. Problem Areas for Employers

1. Failure to disseminate policy

2. Inadequate complaint procedure

3. Employer on notice of harassment

4. Failure to promptly investigate

5. Failure to take appropriate disciplinary action

6. Failure to apply it even-handedly

7. Failure to review and revise when necessary

8. Failure to provide training

E. Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In a recent decision, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard. As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.” The Court rejected the employer’s argument that federal case law should apply to the case.

II. The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment. Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward.

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant. Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace. Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A. Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment. Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.” §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention. Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival.

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge. Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law-especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B. Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense. The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C. Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law. Under Hawaii law, however, courts may award unlimited punitive and compensatory damages.

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act. See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D. Training to Reduce Exposure to Punitive Damages

The U.S. Supreme has Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.'” Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Effective Pre-Employment Background

In today’s competitive economic environment, firms cannot afford to be side-tracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers have increasingly turned to pre-employment screening as a critical risk-management tool to try to avid hiring problem employees in the first place.

At the same time, companies are becoming more cost conscious as well. Despite the obvious benefits of pre-employment screening, management often expects security and human resources professionals to produce more results with fewer resources. The challenge facing security and human resources professionals is finding ways to implement an effective pre-employment screening program that is also cost-effective.

Such a program has four goals:

– First, the program must demonstrate that an employer utilizes due diligence in hiring. That means that an employer takes reasonable steps to determine a job applicant is fit for the job. This can protect an employer from claims of “negligent hiring.”

– Second, effective screening obtains factual information about a candidate, to supplement the impressions obtained from an interview alone. It is also a valuable tool for judging the accuracy of a candidate’s resume.

– Third, effective pre-employment serves to discourage applicants with something to hide. An applicant with serious criminal convictions is less likely to apply at a firm that announces it does pre-employment background checks.

– Finally, a background-screening program should encourage applicants to be very honest in their applications and interviews. Since applicants are told there is a background check, they have a motivation to reveal information about themselves they feel may be uncovered with a check.

Many firms view pre-employment screening as a process that starts after an applicant has been selected by a hiring manager or department, and the name is submitted to security or human resources for a background report. Depending upon the employer, it is either outsourced to a background company or investigated internally through corporate security. In a typical screening program the emphasis is on checking for criminal records, as well as other background searches that are commonly available.

An effective background-screening program, however, is much more then just checking criminal records after a candidate has been selected. In fact, an effective background screening program starts even before the first resume is received or the first interview is conducted. It requires a company-wide commitment to a safe hiring by everyone involved with hiring. Recruiters, hiring mangers and interviewers must understand safe hiring practices are not something someone else takes care of after they make a hiring decision. It is part of their responsibilities as well.

The following steps can increase the effectiveness of a screening program. However, they all take place before a hiring decision is made and before a background report is requested. They also take relatively little time and money compared to the benefits a firm receives.

These nine steps rely upon two vital factors. First, they utilize multiple and overlapping tools that approach the task from different directions. There is no one screening tool that all by itself guarantees an effective screening program. Second, they require the department in charge of background screening to recruit and educate everyone in the hiring process to become involved in safe hiring, starting with the person who places ads in the newspaper.

These nine steps are:

1. Job announcements, such as newspaper ads, should clearly indicate the firm requires background checks. This discourages an applicant with something to hide by clearly stating in the public announcement for a job opening that the company does screening. Employers find good applicants are not discouraged from applying at companies that do background screening. Employees are just as anxious as employers to work in a safe environment with qualified and honest people.

2. All applicants must sign consent for a background check, including a specific consent for criminal records at the time they submit an application or resume. This serves two vital functions in the screening process. First, it makes it very clear to a job applicant that criminal records will be searched. An applicant with a criminal record they want to hide may apply instead with a firm that does not perform screening. Second, some individuals may voluntarily disclose a prior difficulty. For some positions, a minor criminal violation honestly disclosed may not necessarily eliminate a person from consideration if the criminal offense is not related to the job.

There are some companies that do not use application forms, but instead hire based upon resumes. In that situation, a company can prepare a supplemental release form for the applicant to complete and sign. Some firms include a supplemental sheet in their applications asking a candidate specifically if they have any concerns about a background screening and whether there is anything they wish to bring to the company’s attention. This is an excellent device to focus applicants on the fact a thorough investigation will be conducted as part of the hiring process.

3. Include language in the consent concerning a release of records from foreign countries. Doing pre-employment screenings and criminal record checks in foreign countries can be difficult and expensive, and in many instances are not even possible. One approach, however, is to add specific language to a background form indicating the release to search for criminal records also applies to any jurisdictions outside the United States. That may cause applicants from abroad to either self-disclose problems or apply elsewhere.

4. Applicants should be asked directly if they have a criminal record in the interview and employment application. It is crucial that applicants be asked directly during the process if they have a criminal conviction or pending case. Ideally, that language should be in the employment application. During oral interviews, part of the standard questioning should be, “If we were to check with the courts, would we discover any criminal convictions or pending cases?”

In asking about criminal records, employers should keep the following in mind:

a. Always ask the broadest question allowed by the law in your state. Some employers are under the mistaken belief they can only ask about felonies. However, misdemeanor convictions can also represent serious crimes, and should be included as allowed by state law.

b. Employers should carefully phrase the question in order to not elicit any information about arrests not resulting in convictions. Employers are generally limited to convictions or pending cases.

c. Ask the applicant to describe any convictions or pending cases and give the specific location. This allows the employer to pull the court file and to determine if the applicant is truthful about the nature of the criminal case. It is also critical to ask for the exact location so the employer or background checking company knows exactly what court to search.

d. In any written application or release asking about criminal convictions or pending cases, the form also should contain the language to ensure compliance with discrimination laws. For example, “This company will not deny employment to any applicant solely because the person has been convicted of a crime. The company, however, may consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.

5. The employment application must clearly state that any false or misleading statements or material omissions is grounds to terminate the application process, or to terminate employment if it has begun, regardless of when the information is discovered. This is another critical part of an effective program. Employers generally cannot deny employment automatically because of a criminal conviction without taking certain factors into consideration. However, where a person has lied on their application by not admitting a prior criminal conviction in a response to a direct question, the lack of honesty is a valid reason for a rejection. An applicant needs to clearly understand dishonesty can lead to termination no matter when it is discovered.

6. If the background screening may not be completed before the start date for the position, make sure the applicant understands any employment is conditioned upon the employer’s receipt of a background report that is satisfactory to the employer. Sometimes employment will begin prior to the background report being completed. In those situations, it is important to notify the applicant, preferably in writing, that employment is subject to the employer’s receipt of a background report. It is also important the employer clearly state the background report is subject to the employer’s satisfaction only, so a job applicant cannot debate whether a report is satisfactory or not.

7. Check past employment references. Checking references is an essential part of the screening process. In fact, it can be just as valuable as a criminal records search. It would be difficult, if not impossible, to defend an employer sued for negligent hiring that failed to confirm a person’s past employment history. Even if previous employers limit the information to just start date, end date and job title, that information is still invaluable. The primary purpose of such a search is to confirm an applicant’s whereabouts for the past five to seven years and to make certain there are no unexplained gaps in employment. By knowing where a person has been, an employer limits the possibility that an applicant spent time in custody for a criminal offense.

It also assists an employer in determining what jurisdictions to search for criminal records. This is important because there is no such thing as a national criminal record search for most employers. Employers can only obtain criminal records by searching individual courthouses. Since there are more than 10,000 courthouses in America, it is important to know where to look.

Of course, an uninterrupted work history does not guarantee a lack of a criminal record. Some jurisdictions allow jail sentences to be served on weekends or through a work furlough program where a prisoner is released during working hours. However, when done in conjunction with all the other steps, checking past references is a vital part of the program.

8. Obtain a listing of all past addresses. Another important step is to include on the consent form a listing of all addresses for the past seven years, as well as the approximate time at each address. This not only reinforces in the applicant’s mind that the company is serious about screening, but it assists the employer in determining which jurisdictions to search for criminal records.

9. Include future screenings in the consent language. Every consent form should include language that the consent for a background screening allows for future background checks for purposes of promotion, reassignment or retention, unless otherwise revoked in writing. This serves three important purposes. First, it reinforces the idea the employer is serious about maintaining a safe workplace. An employee is on notice that they are subject to future investigations. Second, this language facilitates future investigations if necessary for claims of harassment, theft, violence or other difficulties. Finally, the language is also important due to recent interpretations of the federal Fair Credit Reporting Act, the federal law that governs pre-employment screening by outside agencies. This language in the release form makes it easier for an employer to utilize the services of an outside agency to conduct future investigations if workplace issues arise.

In addition to these nine steps, an employer also must perform additional checks to satisfy due diligence. The most important of these are courthouse searches for criminal records. There are other checks that can be performed as well. However, these preliminary steps that occur before a person is even hired can dramatically increase the effectiveness of a screening program. These steps also have the advantage of promoting workplace safety with very little additional costs. By enlisting everyone in the hiring process from the beginning, firms can dramatically increase the effectiveness of their screening programs.

Employment And Severance Scenarios

In prior articles I have alluded to the fact that many people think being an entertainment lawyer is a romantic existence. Yet the brass-tacks principles of employment law and the harshness of employee severance and termination scenarios often overtake that romanticism. Being an entertainment lawyer entails a lot more than hanging-out with talent backstage or on the tour bus. In prior articles I have also alluded to the fact that artists often have “day jobs” providing their paying employment to subsidize their artistic ventures. As a New York entertainment attorney who grew up in a show business family in the midst of performers, I’m used to this. Most of these artists intend to abandon these day jobs, with or without an employment severance package, once they get signed to a development deal, record contract, or otherwise “make it”. But what happens in the meantime? What if an artist works for a company that intends to jettison him or her as an employee, rather than the other way around? What if the company counts on using an employment severance package as a hedge against risk of an after-occurring wrongful-termination lawsuit?

These past few years have comprised a particularly bad time in terms of employee and contractor lay-offs and firings. As a working entertainment lawyer in New York I have seen many artists and others downscale and change jobs in recent years. Many situations which used to prompt a severance package to materialize in the prior decade, do not do so any longer. The fact of the matter is, a large proportion of employees and other workers misplay the handling of their job exit, if and when it occurs in the employment law context. In the interests of employee and worker empowerment before the blue-ink dries on the release and settlement agreement or other severance documents, this article follows. Though written by me as a media and entertainment attorney working with entertainers, the same principles apply to employment work in other industries and sectors.

I suppose that the first rule of employee empowerment is fairly pedestrian-sounding, but vitally important. An employee must read and review every employment document pertaining to his or her job and career, carefully – including the following disclaimer. The employee should secure counsel promptly, if he or she sees any legal issue looming on the horizon which may affect the employee’s career or rights – including legal issues relating to employment and severance packages. As an entertainment lawyer friend and entertainment law professor of mine used to say, “every deal is different”. What applies in one employment context may not apply to the next one. The employee must make sure that he or she seeks individualized legal advice as to any important matter pertaining to the employee’s career or rights generally. It is not uncommon that a soon-to-be-terminated worker starts calling attorneys as soon as offered an employment severance package.

There are attorneys, entertainment attorneys and otherwise, who routinely handle “employee-side” legal matters. A number of attorneys may be able to do so affordably for even a modestly-compensated employee, in the context of a severance proposal or otherwise. An employee-side lawyer should be accustomed to representing people who have limited financial resources, and this is a particularly-familiar fact-pattern for an entertainment lawyer handling artist-side work. There are parallels. And, assuming that one is not a lawyer, one should no sooner handle one’s own legal work than handle one’s own dental or medical needs oneself. The severance and employee-exit scenario most often entails some analysis of employment legal issues governing the exit. Given the economic realities faced by those in the artistic world, all entertainment lawyers need to be familiar with these employment legal issues.

The employee should remember that most employers themselves have in-house or outside attorneys. Indeed, the employment, severance, settlement, release, and exit documents are most often drafted by these attorneys. They may be entertainment attorneys, employment attorneys, litigators, or generalists. However monikered, often an employee’s securing of his or her own counsel is the only way to equilibrate the proverbial scales of justice in a severance or other job-related scenario. Exploitative and even abusive treatment of employees is unfortunately rampant in the employment law context, including at the time of worker exit – particularly in highly-competitive cities like New York and Los Angeles, and in highly-competitive industries like entertainment and media as any entertainment attorney will tell you. The good works and lessons taught by historical pro-labor figures like Samuel Gompers should not go for naught. The employee should not look to the employer, or the vicissitudes of chance, to protect the employee and the employee’s own legal rights in the workplace or in the context of a severance or other exit from employment. Rather, the employee should empower himself or herself, and should not be inhibited in seeking out the advice and opinions of those professionals who handle employee-side legal work for a living.

On to the substance and detail.

The lead singer of a rock band about to step onto a live television set is furnished a “release” for signature five minutes before scheduled air time. The entertainment lawyer representing the singer might cry, “No!”. While this could sound like an entertainment attorney observation meant only for the golden days of the Ed Sullivan Show, the rule of not signing on-the-spot is true in the employment context and across all other subject-matter areas and sectors as well. Like the artist, the employee, too, should never sign any document, employment document, severance document, or otherwise, on-the-spot. The employee should not be bullied into signing on the spot, as a product of fear, or the purposeful manipulation of same by oppressive employers or ex-employers. There are very few situations in life where one truly must sign a document on-the-spot, and an employment-related signature is usually not one of them. One of the only valid such situations that I can recall from my own experience is when an attorney must sign a stipulation on-the-spot before a judge, as the only way to preserve the attorney’s client’s rights. This will not likely be a situation that one will ever have to encounter as an employee or terminated employee in an employment severance context or otherwise. Employers typically offer severance to terminated workers out of fear of being sued by them, meaning that the worker often has more leverage in the employment context than he or she initially thinks.

It is astounding, though, as to how many people make this mistake of “on-the-spot” signing, time and time again, in the entertainment law context, and in the employment severance context and in the workplace and business-world generally – even if these signatories know better. The employee should trust his or her own instincts. If it smells bad, it is bad. If anyone, be it a car salesman, a manager or talent agent you’ve never heard of before, or, yes, an employer offering an employment severance package while terminating your employee services, waves a document at you as panaceatic – you should be suspect. The entertainment attorney’s first instinct is that a document waved at you for on-the-spot signing is not worth to you the paper it is printed on. In the employment context, if the employer presents the employee with a severance document or other document and tries to pressure the employee to sign that document on-the-spot, the instinctual reaction should be similar. The odds are better than 99% that the employer is trying to take advantage of the employee in that latter case – and trying to force the employee to thoughtlessly relinquish in haste valid and enforceable legal rights that the employee already and otherwise possesses.

By comparison, what does an entertainment attorney do, when given or forwarded a document intended for signature in the context of a rights deal, for example? The entertainment lawyer will typically indicate to the party who proffers the document for signature: “Thank you – my client and I will review and respond to this document”. Period. If the “proffering” party then says: “Hey entertainment lawyer, aren’t you or your client going to sign it now?”, the entertainment attorney answers with a flat “No”. Although it is possible that the proffering party will thereafter withdraw whatever offer the document contains and take it permanently off-the-table, they typically won’t. And if they do, it probably was not an offer worth taking anyway. This analysis also applies to written employment severance packages, releases, and settlement agreements, just as it does to talent agreements, agent and manager agreements, car purchase agreements, and just about any other form of proposed contract that one might ever be offered. Again, this rule is by no means entertainment attorney-specific, but instead is generalizable to the employment context and across all sectors and industries.

The protocols of professionalism create an expectation that all parties should be given a reasonable opportunity to review a document, including a proposed employment severance document, prior to either: (1) signing it as written (an extremely unlikely occurrence, by the way, if a good attorney reviews it for the employee); or else (2) responding to the proposed document with a fax, letter, red-line comparison draft, or mark-up indicating the receiving party’s proposed changes. This would normally be the way entertainment attorneys would interact with and between each other on a proposed license agreement, for example. The two entertainment lawyers would expect careful reading and deliberation on either end. If a proffering employer-party in the severance context, however, instead threatens to withdraw the document “since it wasn’t signed on-the-spot”, then they are just being ridiculous and overbearing. The odds are, again, better than 99% that their “non-negotiable” document would have been a legal disaster for the employee to sign as initially proposed. Again, this observation applies to employment severance packages, and most all other forms of proposed draft agreements in most all contexts other than employment, too.

Some employers in the media and entertainment industry context and otherwise even have the unmitigated gall these days to ask employees to prospectively waive their right to a jury trial in the context of so-called “non-negotiable” employment agreements including severance or other exit agreements, as but one type of egregious example of the foregoing. It is jungle out there. If one is asked to sign an employment severance agreement with jury trial waiver or other exit document on-the-spot, it is entirely fair and within one’s rights to say that “I will need to review this document with my attorney”, or “I don’t sign documents of a legal nature without attorney review”. And, if the proffering party disputes the employee’s right to legal representation, perhaps this is someone that the employee doesn’t want to accommodate anyway, on principle. This country’s entire legal history was predicated, in substantial part, on the rights of the individual, and the individual’s right to counsel. The framers of the Constitution worked hard. It would be a mistake to let them down now.

The next rule is a corollary to the prohibition on “on-the-spot” signing: The employee should never believe the employer, when the employer offers a “standard” form of employment severance agreement or otherwise. An entertainment attorney will tell you that “standard” is the biggest lie in the entertainment industry. It should be considered comparably fallacious in the employment context. If the employee wants to empower himself or herself in the workplace and in the commercial world, what the employee needs to do is repeat the following phrase repeatedly, like a mantra: “There is no such thing as a ‘standard form’. There is no such thing as a ‘standard form'”. Because, there isn’t, as any entertainment lawyer should tell you.

Rather, “standard form”, after an entertainment attorney on the receiving end translates it, just means “get over on you”. Similarly, a “standard form” employment severance document is synonymous for “oppressive and one-sided form that takes advantage of the employee”. The employee should remember that the draftsperson of a so-called “standard form” is probably a fairly predatory-minded employer-side lawyer handling the company’s employment severance protocols en masse who is under absolutely no obligation to protect – or indeed even acknowledge or accommodate – the employee’s interests. Indeed, the opposite is true. The employer-counsel’s professional obligation as a member of the Bar handling the employer-side severance work is to be a zealous advocate of only his or her own client’s interests – that is, the employer’s interests only. If the employee signs an employment severance document because the other side tells the employee it is a “standard” or “non-negotiable” form, then the employee might as well be walking off the roof of the proverbial building just because the employee was told to do it. The employee should not trust “standard forms” in the employment severance context or otherwise, or those employers who purport to furnish them. Again, this may be an entertainment attorney observation, but it applies to all workplaces and other contracting situations as well.

The employee should make sure to have retained copies of every single scrap of paper pertaining to his or her employment relationship with any company, up to and including the time of the severance communications. The employee should not trust or rely upon the employer to give the employee copies of – or even access to – those employment documents and the employee’s human resources file, if and when the employee’s work honeymoon period with the employer ends, or if and when the employee’s services are, or are about to be, terminated in a severance or other context. Remember that the Japanese model of “employment for life”, and the antiquarian U.S. model of the gold watch after 40 years of service, just simply do not apply anymore. Severance and parachutes – and these days the absence of them too – often replace the old model of dutiful loyalty.

Our United States work-force is more mobile and transient than it ever has been. The workforce I see as an entertainment attorney practicing in New York, is most decidedly such a miasma. People change jobs all the time, with or without accompanying employment severance packages and exit agreements. The motility of the workforce, by the way, greatly empowers employees to seek out their market-value salary and non-abusive working conditions – so it is not necessarily a bad thing. As a practical matter, in New York or elsewhere, entertainment industry or otherwise, the employee should work with the assumption that the employee will one day have to depart every job ever taken with or without severance, no matter how rosy the employment picture of any job looks initially. If the employee stays at that job until retirement, more power to the employee. But the employee should realize that the statistics indicate this would be an extremely unlikely occurrence in this day and age given current job-market employment conditions.

The employee should make sure that, prior to any severance scenario, his or her exhaustive, fully-complete “job file” is kept at the employee’s home – not in an office desk drawer, not in the company’s file cabinet – not anywhere near the employment workplace. It is astonishing as to how many employees fail to do this simple thing. The employee should remember that the old-fashioned paradigm of “two weeks advance notice and severance” is rapidly becoming a vestige of the past, particularly in the media employment context as I see it from my vantage-point as an entertainment attorney. Many media, software, and other types of employers will now think nothing of having an employee escorted out of the workplace by a human resources rep, or even by security personnel, the day and even moment the employee is terminated. Usually when this happens, the employee is not smiling and holding a severance check when led out of the building towards the parking lot or subway.

Why is this happening? Because employers are becoming increasingly afraid of disgruntled employee (or ex-employee) theft of company material, misappropriation of software, and even sabotage and violence in rarer cases. The employment misappropriation threat is felt particularly by media and entertainment companies, and unfortunately workplace violence incidents are on the rise everywhere. Some employers see the promise of severance – carrot-on-a-stick illusory, or not, as finally offered – to be a hedge against these risks as well. The moral of the story – the employee should keep perfect and thorough contemporaneous documentation of his or her employment file, at home, well prior to any severance scenario.

The employee should save copies of everything – offer letters, acceptance letters, employment contracts, “non-compete” documents, non-disclosure or confidentiality agreements, employee handbooks, time cards or time sheets, performance reviews, expense and reimbursement forms and receipts, insurance and COBRA documents, inter-office memos relating to work and performance, and anything else relating to the employment relationship with the company. The only exception would be, the employee should not remove any material from the workplace which is the employer’s or someone else’s property, or which the employee is contractually or otherwise obligated not to remove from the place of work. As an entertainment attorney handling production matters, I expect this issue to arise often, since an employee will usually depart while at least some non-fungible projects are still in development or production at the employer’s premises. This question of property ownership, intellectual property and otherwise, is sometimes a more difficult judgment to make than it sounds. If ever in doubt – you guessed it – the employee should seek an attorney’s advice prior to any such removal and prior to the closure of the employment severance or other exit documents.

Prior to the severance scenario materializing, the employee should be making thoughtful dated written notes to the employee’s own files and keep them at home, anytime any legally-relevant event happens during employ – such as a supervisor expressing either approval or disapproval with one’s work, or a fellow employee making suggestive or harassing comments in one’s presence. These written notes should be reduced to writing privately, immediately after the event occurs, as opposed to a day or more later. These written notes should quote what was said verbatim (yes, using actual quotation marks, and accurately). The employee should not let these notes merely rely on paraphrases, if possible.

These written notes should be taken home to the extent allowed and feasible, by the employee, on the date of the event so recorded, and should be stored securely in the employee’s employment file at home until ever needed. One would be surprised to learn just how many otherwise-valid employee-side severance-related and other legal causes must be wholly abandoned, simply for the employee’s idle failure to make a written verbatim record of important workplace conversations. This overall issue arises in the context of employment attorney and entertainment attorney work, though familiar to most all other legal practitioners as well. For legal purposes, the employee must assume that a re-constructive written record made in retrospect the following week instead, or a non-verbatim note, is near-worthless relative to one taken at the moment. What the employee wants is what is known as a “contemporaneous written record” – that means, “at the same time as the occurrence of the event itself”. And yes, for most forensic purposes in the employment context, that also could include a careful verbatim written record made by the employee five minutes after the event ends. The employment severance dialogues themselves, if and when verbal alone, should be reduced to writing by the employee in this fashion, too.

Finally, the last rule is a corollary to some of the others mentioned immediately above: The employee should bring or forward a complete photocopy (not originals) of the employment file which the employee kept at home, to the attorney or attorneys – entertainment attorney or otherwise – that the employee is considering to represent the employee in the negotiation of any employment exit and severance agreement, or any litigation or proceeding for wrongful termination of the employment or otherwise.

The employee should remember that what he or she discloses to an entertainment lawyer or any other attorney is strictly confidential, even if the employee never ends up retaining that lawyer to handle the employment severance or exit agreement or any other work. This rule of confidentiality is a serious and inviolate rule. That lawyer could lose his or her license to practice law, if he or she ever betrays the employee’s confidences. Accordingly, after first making sure that the lawyer doesn’t also represent the employer on the employment severance matter (or even otherwise), the employee should be totally candid and thorough in terms of the facts brought to that lawyer’s attention. The employee should not “screen out” facts that the employee thinks are irrelevant or that the entertainment or employment attorney “would never be interested in”. After all, if the employee is not an attorney himself or herself, he or she could be well wrong about this type of conclusion. It is the attorney’s job, not the employee’s, to filter out the irrelevant from the relevant. The employee should give the lawyer all the raw data. The matter may be the first employment severance deal which the employee has ever lived through, but probably not the lawyer’s.

The employee should cover any packet furnished to his or her actual or intended lawyer with a transmittal letter bearing the legend “Strictly Confidential”, or words to similar effect. That cover letter should include a typewritten or word-processed narrative in the employee’s own words, of all the facts and chronology of the severance or other employment matter about which the attorney is being contacted. The employee should not rely upon an oral soliloquy to make his or her point. Rather, the employee should write it all down, in legible font or typeface, before contacting the lawyer. Again, the employee should ensure, prior to divulging these facts to any such attorney, that the attorney does not already represent the employer or any other party closely affiliated with the employer on the employment severance matter (or even otherwise). It is a small world, and the entertainment and employment law bar in the employee’s locale may be even smaller.

Employment Law

With all the new information concerning HIPAA, which is scheduled to be fully implemented by April of 2005. you need to be aware of the confidentiality laws that govern your practice. One aspect of confidentiality concerns employment law. There are federal and state guidelines that address employment and discrimination laws.

The common law governs the relationship between employer and employees in terms of tort and contract duties. These rules are a part of agency law and the relationship between Principle (employer) and Agent (employee). In some instances, but not all, this law has been replaced by statutory enactments, principally on the Federal level. The balance and working relationship between employer and employee is greatly affected by government regulations. The terms of employment between management and the employee is regulated by federal statute designed to promote employer management and welfare of the employee. Federal law also controls and prohibits discrimination in employment based upon race, sex, religion, age, handicap or national origin. In addition, Congress has also mandated that employers provide their employees a safe and healthy environment to work in. All states have adopted Worker’s Compensation Acts that provide compensation to employees that have been injured during the course of their duties for the employer.

As I mentioned above, a relationship that is closely related to agency is the employee. and principle-independent contractor. In the employer-employee relationship, also called the (master-servant relationship), the employer has the right to control the physical conduct of the employee. A person who engages an independent contractor to do a specific job does not have the right to control the conduct of the independent contractor in the performance of his or her contract. The contract time to complete the job depends upon the employer’s time frame to complete the desired task(s), or job. Keep in mind that the employer may still be held liable for the torts committed by an employee within the scope of his or her employment. In contrast an employer ordinarily is not liable for torts committed by an independent contractor, but there are instances when the employer can be held liable for the acts of the independent contractor. Know your laws governing hiring a person as an independent contractor.

Labor law is not really applicable to your practice of Chiropractic in a practice setting. We will concentrate on employment and discrimination law. There are a number of Federal Statutes that prohibit discrimination in employment based upon race, sex, religion, national origin, age and handicap. The main framework of Federal employment discrimination law is Title VII of the 1964 Civil Rights Act, but also the Equal Pay Act, Discrimination in Employment Act of 1973, the Rehabilitation Act of 1973, and many Executive Orders. In all cases each state has enacted laws prohibiting the same discriminations as Federal Statutes.

Equal Pay Act: This act prohibits an employer from discriminating between employees on the basis of sex by paying unequal wages for the same work. The act also forbids the employer from paying wages at a rate less than the rate at which he pays for equal work at the same establishment. Once the employee has demonstrated that the employer pays unequal wages for equal work to members of the opposite sex, the burden of proof shifts to the employer to prove that the pay difference is based upon the following:

1. Seniority system
2. Merit system
3. A system that measures earnings by quantity or quality of production
4. Or any factor except sex.

Remedies may include recovery of back pay and enjoining the employer from further unlawful conduct and or sizeable fines.
Civil Rights Act of 1964: Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, sex, religion, or national origin in hiring, firing, compensating, promoting, training or employees. Each of the following could constitute a violation prohibited by the Act:

1. Employer utilizing a proscribed criteria in making an employment decision. Prima Facie evidence would show, if the employee was within a protected class, applied for an open position and was qualified for the position, was denied the job and the employed continued to try to fill the position. Once these criteria’s are established, the burden of proof shifts to the employer to justify a nondiscriminatory reason for the person’s rejection for the job.

2. An employer engages in conduct which appears to be neutral or non-discriminatory, but continues to continue past discriminatory practices.

3. The employer adopts rules, which are adverse to protected classes, which are not justified as being necessary to the practice business. The enforcement agency is the Equal Employment Opportunity Commission (EEOC). It has the right to file legal actions, resolve action through mediation, or other means prior to filing suit. Investigate all charges of discrimination and issue guidelines and regulations concerning the enforcement policy of discrimination law.

The Act provides three defenses: A bona fide seniority or merit system, an occupational qualification or a professionally developed ability test. Violations of this act include: enjoining the employer from engaging in unlawful conduct, or behavior. Affirmative action and reinstatement of employees and back wages from a date not more than two years prior to the filing of the charge with the EEOC.

Age Discrimination in Employment Act of 1976: This Act prohibits discrimination in hiring, firing, salaries, on the basis of age. Under Title VII it address all these areas and ages, but it is especially benefits individuals between the ages of 40-70 years. The language in this act is substantive for individuals between 40-70 years of age. The defenses and remedies are the same as the Civil Rights Act of 1964.

Employee Safety: In 1970 Congress enacted the Occupational Safety and Health Act. This Act ensured that every worker have a safe and healthful working environment. This Act established that OSHA develop standard, conduct inspections, monitor compliance and institute and enforce actions against non-compliance.

The Act makes each employer to provide a work environment that is free from recognized hazards that can cause or likely to cause death or serious physical harm to the employees. In addition, employers are required to comply with specific safety risks outlined by OSHA in their rules and regulations.

The Act also prohibits any employer from discharging or discriminating against an employee who exercises his rights under this Act.
The enforcement of this Act involves inspections and citations for the following:

1. Breach of general duty obligations
2. Breach of specific safety and health standards
3. Failure to keep proper records, make reports or post notices required under this Act

When a violation is discovered, a written citation, proposed penalty, and corrective date are given to the employer. Citations may be contested and heard by an administrative judge at a hearing. The Occupational Safety and Health Review Commission can grant a review of an administrative law judge’s decision. If not, than the decision of the judge becomes final. The affected party may appeal the decision to the US Circuit Court of Appeals.

Penalties for violations are both civil and criminal and may be as high as $1000.00 per violation per day, while criminal penalty be imposed as well for unlawful violations. OSHA may shut down a business for violations that create dangers of death or serious injury.

Worker’s Compensation: Most actions by injured employees against an employer are due to failure of the employer to use reasonable care under the circumstances for the safety of the employee. In such actions the employer has several well-established defenses available to him. They include defenses of the fellow servant rule. This rule does not make an employer liable for injuries sustained by an employee caused by the negligence of a fellow employee. If an employer establishes that the negligence of an employee contributed to the injury he sustained in the course of his employment, in many jurisdictions the employee cannot recover damages from the employer. Voluntary assumption of risk is the third defense. An employer in most jurisdictions is not liable to the employee for harm or injury caused by unsafe conditions of the premises if the employee, with knowledge of the facts and understanding the risks involved, voluntary inters into or continues in the employment of the employer.

Keep in mind that all states have enacted Worker’s Compensation Acts. These statutes create commissions or boards to determine whether an injured worker is entitled to receive compensation. Defenses above are not available in most jurisdictions to employers in proceeding under these statutes. The only requirement is that the employee be injured in the course of his employment.

Fair Labor and Standards Act: This act regulates the employment of child labor outside of agriculture. This act prohibits the employment of anyone less than 14 years of age in non-farm work. Fourteen and Fifteen years old may be employed for a limited number for hours outside of school hours, under specific conditions of non-hazardous occupations. Sixteen and seventeen year olds may work any non-hazardous jobs. Eighteen and older person may work in any job. This Act imposes wage and hour requirements upon covered employers. This act provides for a minimum hourly wage and overtime pay.