When Do-It-Yourself Employment and Personnel Fixes Can Be a Problem
It seems that seldom a day passes where we are not bombarded with advertisements imploring us to do things on our own. Hardware stores have “do it yourself” kits for nearly every thing imaginable; home gyms seem as common as coat racks; and infomercials challenge us to buy the latest food processors so that we can make restaurant quality food. This do it yourself trend appears to be expanding with full force and vigor to the world of employment and personnel matters. Set forth below is a list of some of the more common “do it yourself” activities which employers undertake with potentially dangerous and expensive consequences:
The “do it yourself” era has ushered in two trends insofar as employee handbooks are concerned. First, is the dangerous misconception that employers are better off not having handbooks. In my experience, this misconception is, in reality, a rationalization for not having a handbook properly prepared by an employment attorney in the first instance. Proponents of this “do nothing” approach argue that they have “heard” that employers can only get themselves in trouble when they commit their policies in writing. This logic is flawed for several reasons. To begin with, certain employers are required by law to have certain policies. For example, employers with more than 50 employees are required to have a family and medical leave policy. Similarly, smaller employers who do not have, for example, an equal opportunity employment policy or anti-discrimination/anti-harassment policy run the risk of not being able to make certain defenses to discrimination and/or harassment claims if they are filed against them.
The second trend in this area is employers with out of date handbooks or those employers who try to save time and money by “borrowing” handbooks from the internet, friends, or other business owners whom they can no longer remember. Employers with dated handbooks almost certainly lack policies which they should have in these modern times, including policies concerning computer use, violence in the workplace, and an appropriate, comprehensive anti-discrimination and anti-harassment policy.
With respect to the “borrowers”, they usually get what they pay for. The notion that one employment handbook “hat” size fits all has never been true. For example, handbooks where employers specifically obligate themselves to follow a prescribed disciplinary procedure in their handbook may inadvertently create a contractual obligation with employees. Little wonder that employers who try to enforce these types of handbooks often have difficulty in doing so. The simple reality is that handbooks should be reviewed every 12-18 months, particularly in a climate such as this where the employment laws are extremely fluid. A handbook which does not fully take into account the differences in state and local laws can be a prescription for a significant problem.
A related issue involves employers who choose – largely for financial reasons – not to have their handbooks (as well as other employment documents) reviewed by experienced employment attorneys. The danger here is that handbooks, while perhaps accurately reflecting certain state, local and federal laws, fail to account for all of the applicable employment laws and/or the so called common law (or judge made) law which involves interpretations of applicable employment law principles. Again, employers who finalize and implement handbooks without accounting for prevailing common law decisions (particularly insofar as wrongful termination and related issues are concerned) unknowingly create significant risks -- financial and otherwise -- for themselves.
The do it yourself trend, in my experience, is also alarmingly prevalent when it comes to so called non-compete agreements and other employment restrictive agreements. Again, as is the case with employee handbooks, the “do it yourselfers” fall into two general categories in my experience. The first is the so called “borrowers”. These are the well intentioned individuals who take restrictive agreements from an internet source, friend, colleague, or even an attorney who does not specialize in employment matters. Once again, the dangers of borrowing restrictive agreements are significant. For example, an agreement which may be reasonable in one industry may not apply in another industry. In addition, states have differing laws in terms of whether and upon what terms they will enforce various types of employment restrictions. Certain states, for example, will not enforce non-compete provisions as a matter of law. Other states will enforce non-compete agreements, but will do so only grudgingly. Still other states look at non-compete agreements as a formal contract and will respect the parties’ intent so long as the agreement is reasonable in terms of geography, scope, and time.
Significantly, states differ upon when and under what terms they will revise or “blue pencil” restrictive agreements. Certain jurisdictions such as Virginia are known for refusing to “blue pencil” restrictive agreements and, if the agreement is overly broad or unlawful for any reason, then the entire agreement generally will be deemed to be infected and, therefore, invalid. Other states take a more favorable view of overly broad agreements (provided that they are not too overbroad) and may revise or blue pencil them as circumstances warrant.
The second trend that I see with respect to restrictive agreements concerns the so called “overreachers”. These are employers who, for example, may seek to prevent a sales person from competing nationally following the conclusion of his or her employment even though 99.9% of the employer’s business is in the Washington Metropolitan Area. All too frequently, the “overreachers”, like the “borrowers”, are reticent to consult with experienced employment counsel due to concerns about costs, as well as concerns that they may not like what they hear. Not only do such restrictive agreements have serious enforceability issues for the reasons discussed above, but they also run the risk of adversely impacting employee morale and preventing employers from hiring talented individuals who may be justifiably turned off by “one hat size fits all” restrictive agreements.
“This can’t be that difficult; I’ll fix it myself.”
Not surprisingly, the economic downturn has affected human resource professionals and also the way in which employers utilize the assistance of legal counsel. Increasingly, employers, in an effort to “save” legal fees, are attempting to “fix” personnel and employment issues themselves rather than contact experienced counsel. Although saving attorneys’ fees and costs is certainly a laudable goal, the serious disconnect which many employers fail to appreciate is that seeking the assistance of knowledgeable counsel early on can ultimately prove to be not only far more effective from a legal standpoint, but also much more economical as well.
Thus, certain employers who would ordinarily call counsel if an employee made a complaint about discrimination or harassment are now attempting to resolve these issues themselves. The difficulty is that they fail to appreciate the legal consequences of their decisions. Sometimes, employers simply decide that it is best to wait to investigate the allegations to see how the individuals involved conduct themselves in the ensuing weeks. Unfortunately, these employers do not understand that the failure to properly and fully investigate an allegation of discrimination or harassment at the outset may prevent an employer, under established case law, from putting on certain defenses to harassment claims. Other employers, once again unbeknownst to counsel, respond to claims of discrimination or harassment by reassigning the employee who complained about the conduct or by failing to make and document appropriate corrective action against the alleged offender following an investigation. Both of these decisions can and do lead to retaliation claims which can be viable, even though the underlying claim may be without merit. Employers in these scenarios who attempt to “save” legal fees may have unwittingly created tens if not hundreds of thousands of dollars of increased and unnecessary legal exposure, and virtually ensured that dozens of hours of productive time will need to be devoted to preventing and/or defending an actual or threatened legal claim.
In summary, the do it yourself trend can best be utilized when employers have been advised by experienced counsel in advance of how to properly handle various types of situations. To be sure, for employers with knowledgeable human resource personnel that have successfully and consistently applied policies (such as, for example, attendance) on a regular basis, it is not necessary to call an attorney every time an individual violates a certain policy. That said, as discussed more fully above, “self-medicating” has a number of serious limitations and potentially dangerous shortcomings. In my experience, it is almost always the case that employers benefit from contacting experienced counsel early on, rather than waiting until a problem becomes more complex and positions and feelings have become more entrenched. In most instances, experienced employment counsel (particularly those that understand your business) can promptly assess the significance of an issue and provide sound advice on how to resolve it with little fanfare at relatively modest cost.
[Note: This article is not intended to provide specific legal advice or opinions regarding any specific matter. The application of the concepts and matters discussed in this outline is dependent upon the specific facts and circumstances of individual situations, the application of federal, state, and local laws, and the application of controlling case law. ]
Marc R. Engel is a principal at Lerch, Early & Brewer, where he is a member of the firm's employment and litigation groups. Marc advises clients on employment issues, litigates employment and business disputes, and counsels companies and organizations on litigation avoidance strategies. He also mediates employment and civil litigation matters, and conducts on-on-one training for professional service providers. In 2006, Marc was selected as a member of the “Greater Washington Legal Elite” by SmartCEO Magazine. Marc can be contacted at 301-657-0814 or by e-mail at firstname.lastname@example.org. For more information about the firm, please visit our website at www.LerchEarly.com.