Spring 2017| Utah Employment Law Quarterly Now Available

Vol-2 Issue-2 (Spring 2017)

The Utah Employment Law Quarterly Newsletter provides updates and reminders of best practices for businesses located or operating in the state of Utah. Download a copy of Volume 2, Issue 2 at the link above.

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EMPLOYEE HANDBOOKS ARE CRITICAL TO PREVENT SUCCESSFUL EMPLOYEE LAWSUITS (PART 9 – Personnel Files and Computer Policies)

This is the eighth and final article in a series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on information on personnel files and computer related policies that should be considered when writing an Employee Handbook.

Personnel Files

 Many distinctions exist in this area between public and private sector employees and between different states.

In many states, public employees’ personnel files are “public records” under state law and are open to inspection by employee.

Private sector employees’ personnel files are the property of the employer and need not be shared with employees under Utah law (although an employee in Utah, if there is a court dispute– will be able to access relevant personnel file documents for purposes of the lawsuit through discovery rules). Michigan, by way of contrast, allows private sector employee access to personnel In Utah access to private sector employee files is a matter of employer choice. If access is granted, the policy should contain the following:

  • Describe who will have access (employees only or others).
  • Require a written request for
  • Allow access only while accompanied by an employer
  • Set forth whether the employee will be allowed to add material to the
  • Describe the policy and cost for obtaining copies of file

Computer, E-Mail, Internet And On-Line Services Policy

Policies in this area raise a myriad of issues.  Since certain elements of the plaintiffs trial counsel bar refer to E-mail as “the gift that keeps on giving,” it is imperative that an employer’s handbook set forth the following elements in an information technology policy:

  • The E-mail Internet access system is the property of the Company.
  • The technology is to be used solely for business purposes, or if this is unrealistic, that the technology is only to be used for incidental personal use and business purposes.
  • Nothing on the system is or can become the private property of any employee.
  • The system must never be used to create offensive or disruptive messages including any information prohibited by the non-harassment policies of the Company.
  • The system should never be used to up load or download copyrighted materials, trade secrets, etc. , absent prior authorization from management.
  • There can be no expectation or assurance of confidentiality or privacy for any messages, or for any use or pattern of usage of the Internet.
  • Since the entire system belongs to the Company, all parts of it are subject to being monitored at all times.
  • Employees who misuse the system are subject to discipline up to and including discharge.

Among the many collateral issues is the National Labor Relations Board decision that unions may use an E-mail system to solicit support if the system has been used for any other type of non-work related messages. See DuPont de Nemours Company, 311 N.L.R.B.. 893 (1993).

EMPLOYEE HANDBOOKS ARE CRITICAL TO PREVENT SUCCESSFUL EMPLOYEE LAWSUITS (PART 8 – Employee Privacy)

This is the eighth article in a series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on information on employee privacy that should be considered when writing an Employee Handbook.

Employee Privacy

Public versus private sector A fundamental distinction exists in the area of “employee privacy” between public sector and private sector employees.. Public sector workers, because they are employed by a governmental agency, are entitled to some “right of privacy” under the Fourth and Fourteenth Amendments to the Constitution; i.e, their employer, the governmental agency, is limited in what it can do to them by these constitutional limitations “state action.”

In all but a few states (California, Illinois, South Carolina), private sector employees have no such government conferred constitutional “right to ” In most states an employee’s right to privacy is not conferred unless their employer creates one by promising privacy explicitly or implication. When it is claimed that such a promise of privacy has been made, employees often seek redress under several theories, including the following:

  • Defamation – including the release of false or inaccurate information by the employer that results in damage to the reputation of the employee.
  • Infliction of emotional distress, including subjecting the employee to outrageous conduct that causes severe and debilitating injuries.
  • Negligence.
  • Invasion of privacy, including unwarranted publicizing of a company’s private affairs and intrusion into the employee’s private affairs.

The key to diminishing the possibility of such problems is to adopt a policy and/or handbook provision which makes clear that employees have no right to the expectation of privacy in anything involving their job or the workplace. Such policies should contain the following:

  • While the Company allows employees to use its property, this does not make the use of that property in any way “private” or secret from the employer.
  • Employees have no expectation of privacy anywhere on or in Company property, including none in any Company desk, locker, or computer or other electronic equipment.
  • The Company also reserves the right from time to time to search the Company premises and property (including all company equipment) as well as personal items and vehicles brought by employees onto Company property.
  • Refusals to comply with search requests will subject employees to discipline up to and including discharge.
  • Special provisions may be required where an employer wishes to monitor employee telephone calls and e-mail. Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 and the Electronics Communications Privacy Act of 1986, 18  S.C. § 2510 et seq., prohibits invasions of privacy through interception of oral, wire and electronics communications unless the employer is a party to the conversation and/or there has been consent to the interception.   Some states require consent of all parties to the phone conversation.
  • A further federal exception exists where the employer monitors employee phone calls if the interception of the communication is “in the ordinary course of ” If this is the practice it should be stated in the handbook provision.  Some states require the consent of all parties to the phone conversation.

EMPLOYEE HANDBOOKS ARE CRITICAL TO PREVENT SUCCESSFUL EMPLOYEE LAWSUITS (PART 7 – Drug Policy)

This is the seventh article in a series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on information on the need to include a Drug & Alcohol when writing an Employee Handbook.

Drug & Alcohol Policy

Most often, full policies on drug and alcohol testing are not set forth in Usually, only a summary of these policies is included.

If such a policy is summarized, the following should be included:

  • Who is subject to testing–all applicants, all employees or both, or even management.
  • What is prohibited–the use, possession, sale and/or being under the influence of drugs or alcohol while on company property and/or while) on company business.
  • When testing will be conducted-following an accident or “near miss,” based upon reasonable suspicion, on a random basis, and/or as a follow up to completion of a treatment program.
  • How the testing will be administered.
  • What the consequences will be for refusing to be tested-­ generally discharge or being considered to have tested positive.
  • Whether referral for rehabilitation will be made, and what the consequences will be for failure to complete the rehabilitation program.
  • That company desks, lockers and employee lunch boxes, etc. may be searched at any time and that employees should have no expectation of privacy.

In Utah, there is a drug testing statute that can insulate an employer from most liability for drug testing, if the employer’s written drug testing policy and practice implements the statute. To be effective, the policy must include testing management, not just employees.  See Utah Code Ann. § § 34-38-1 through 34-38-15.

EMPLOYEE HANDBOOKS ARE CRITICAL TO PREVENT SUCCESSFUL EMPLOYEE LAWSUITS (PART 6 – Sexual Harassment Policy)

This is the sixth article in a series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on information on the need to include a Sexual Harassment Policy when writing an Employee Handbook.

The Need for A Sexual Harassment Policy

Federal law prohibits an employer from discriminating against an employee on the basis of race, color, religion, sex (including pregnancy), national origin, age, and disability in its decisions regarding hiring, firing, demotions, promotions, and other terms and conditions of employment.

States and local laws also may protect marital status, personal appearance, sexual orientation, veteran status, political affiliation, creed and citizenship status.

A cornerstone of an employer’s defense to a claim of employment discrimination or workplace harassment is a strong anti-discrimination and anti-harassment While most employers have adopted such policies, employers should ensure that the policies are understood and followed by employees. This requires that those policies be published in handbooks, in addition to posting them on bulletin boards and circulating them periodically. It is also recommended that employers require employees to sign acknowledgments indicating the employees’ receipt and understanding of the policies.

Two 1998 United States Supreme Court decisions, Burlington Inc. v. Ellerth, 118 US 2257 (1998), and Faragher v. Boca Raton, 118 US 2275 (1998), broadened potential employer liability.  They adopted a strict liability standard for both hostile environment and quid pro quo sexual harassment by supervisors, and made employers liable for sexual harassment even if they were not aware that the harassment occurred, and even if they condemned such harassment in no uncertain terms. At the same time, the Court created an affirmative defense when no tangible job detriment had occurred and provided a means for employers to help insulate themselves from liability for all types of harassment claims.

If a supervisor allegedly engages in sexual harassment , the claims likely will be analyzed as follows:

  • Quid pro quo–a tangible job detriment occurred, such as discharge, demotion or undesirable The employer is liable. No affirmative defense.
  • Quid pro quo– no tangible job detriment occurred. The employer is liable, but may avoid liability by establishing the affirmative
  • Hostile environment – a tangible job detriment occurred, such as discharge, demotion, or undesirable assignment (including from illegal retaliation). The employer is No affirmative defense.
  • Hostile environment- no tangible job detriment The employer is liable, but may avoid liability by establishing the affirmative defense.

The affirmative defense requires that the employer prove that:

  • The employer exercised reasonable care to prevent and correct promptly any harassing behavior; and
  • The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the The employer bears the burden of proof for the affirmative defense.

If the employer establishes the affirmative defense, it is not liable for hostile environment harassment or for quid pro quo harassment in which there is no job Thus, the U.S. Supreme Court’s decisions require that employers establish written anti-harassment policies and complaint investigation procedures.

The Policy should:

  • Describe unlawful harassment and give examples;
  • Condemn harassment;
  • Establish a reporting procedure with the names and titles of individuals to whom harassment may be reported, with alternatives available if the person to whom complaints are normally made is the alleged harasser;
  • Assure complainants of non-retaliation;
  • State that no agent, supervisor or manager of the Company has authority to violate the policy;
  • Require that all employees, supervisors and managers must cooperate in the investigation of complaints of harassment; and
  • State that any employee, manager or supervisor who hinders, interferes with or refuses to cooperate in an investigation may be disciplined, up to and including the

Many courts, including the Tenth Circuit federal court (which includes Utah in its jurisdiction) have ruled that employers cannot only be sued for hostile environment sexual harassment but also for hostile environment harassment based on other protected employee discrimination characteristics. Thus, employers can be sued under the same sort of harassment theories used for sexual harassment, but applied to age harassment (40 and over), race harassment, color harassment, national origin harassment, religious harassment, veteran status harassment and mental or physical disability harassment covered by the ADA.  It is therefore extremely important to not only have a written policy banning sexual harassment , but also a similar written policy banning age, race, color, national origin, religion , veteran status and mental and physical disability harassment. The written policy for these other types of harassment should contain similar elements to those contained in the sexual harassment policy, including alternative channels for reporting harassment and an investigation policy.

EMPLOYEE HANDBOOKS ARE CRITICAL TO PREVENT SUCCESSFUL EMPLOYEE LAWSUITS (PART 5 – Employee Benefits & Acknowledgement of Receipt)

This is the fifth article in a series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on information on Employee Benefits and an Acknowledgement of Receipt that should be considered when writing an Employee Handbook.

Employee Benefits

An explanation of employee benefits should be spelled-out somewhere, whether it is in the employee handbook (or in a separate benefits handbook) is up to the employer.  If you choose to include it in the handbook, it should entail the following: (1) all of the employee benefits (e.g., holidays, vacations, sick days, paid/unpaid  leaves, insurance, long and short-term disability plans, COBRA, 401(k), other retirement plans, continuing education, jury  duty, bereavement);  (2) specific conditions to receive such benefits; and (3) limitations of the benefits (e.g., must have work scheduled day before and after holiday in order to receive holiday pay). Because employee benefits plans change frequently, the handbook should give general information and direct the employee to the individual plan documents.  Furthermore, so as to avoid confusion when the plan documents and the handbook are in conflict, the handbook should expressly state that the applicable plan documents control.

Acknowledgment of Receipt

You should also ensure that all employees who receive the handbook sign a form acknowledging that they have received the handbook and have reviewed the materials contained therein (and/or promise to promptly read and review it if there is not time to immediately read it when it is handed to them).  In your acknowledgment form, you may require that employees attest to having read and reviewed the handbook (or promise to read it), and have the opportunity to ask questions about any of the policies in the handbook.  You might also choose to require employees to acknowledge that they have received a copy of the handbook and have had the opportunity to review the materials contained within. Your acknowledgment form should include the same elements that you have included in your disclaimer at the beginning of the handbook.  In this way, all employees will have individually acknowledged in writing their understanding of the at-will nature of employment with the Company.  Make sure each employee signs and dates the acknowledgment form. Keep signed forms in each employee’s personnel file.  A signed acknowledgment form may become a key piece of evidence in future litigation.

You should require employees to sign an acknowledgment form at the beginning of their employment with the Company (possibly include in pre-employment documents), and also when the Company revises its handbook.  Companies that maintain centralized human resources policies and do not distribute handbooks to employees should require that employees acknowledge receipt of individual policies when such policies are implemented and distributed. Both disclaimers and acknowledgment forms are vital elements to an effective employee handbook. While similar in language, each of these pieces is important.

Sample:

Acknowledgment of Handbook Receipt

This is to certify that I have received the employee handbook and promise to promptly read it and become familiar with its contents.  I understand that it is not a binding contract but a set of guidelines for the implementation of personnel policies. I understand that the Company may modify any of the provisions of this handbook at any time, with or without notice, and may deviate from any provision of this handbook in its sole discretion.  I also understand that, notwithstanding any of the provisions of this handbook, I am employed on an at-will basis.  My employment may be terminated at any time, either by me or by the Company, with or without cause and with or without notice. I understand that no representative of the Company, other than the President, has any authority to enter into any agreement for employment for any specified period of time, or to make any agreement contrary to the foregoing.

Employee Signature

Employee Name (printed) & Date