Troublesome Provisions in
Employment Documents
Mary Stuart
© Husch Blackwell LLP
1
Agenda
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Job Descriptions
Job Applications
Handbooks
Offer Letters
Policies
Severance Agreements
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Job Descriptions
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Job Descriptions
1. Does the law require job descriptions?
2. How much time does it take to write a job description?
3. Do you have job descriptions for all positions in your
company?
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Job Descriptions
 Job functions
 Physical demands
 Skills or education required
 Location and work schedule
 Overtime or travel required
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Job Descriptions
 If list item as required, cannot hire without requirements
 Cannot rely on job description if actual duties do not
comply with description
 Value of job analysis or periodic updating
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Job Application
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Personal Identifying Information
 Age identifying
̶ Date of birth
̶ Education dates
 Social Security Number
 Driver license numbers
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Medical or Disability Information
 Prior workers’ comp claims
 Pregnancy
 Essential functions of job with or without accommodation
 If need an accommodation, what would be needed
 If obvious disability, can ask about accommodation
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Offer of Employment
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Offer Letter
 Consider including “or such other duties as may be
assigned”
 Identify compensation as “annualized amount”
̶ May be reviewed periodically
 Eligibility to participate in benefit plans
̶ As they may be amended from time to time
̶ Do not promise benefits or bonuses not yet in place
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Offer Letter
 Specifying payments in the future
̶ You will receive a $10,000 bonus at the end of 2014
 “We look forward to a long and profitable future together”
 Provide for employment at will and have letter counter
signed
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Handbooks
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Employee Handbook
 Sets expectations for employees
 Not the place to set forth managers’ obligations
̶ “Your supervisor will provide you with an annual review”
 Actions speak louder than words
̶ “Feel good” statements feel very bad to unsuccessful employees
̶ “We provide our employees with a fair and respectful
environment in which to grow and reach their career potential.”
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Employee Handbook
 Do not limit right to manage or discipline
 Avoid: “Violation of this policy can lead to discipline up to
and including termination.”
 Violation of any policy can lead to termination
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Policies
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EEOC and NLRB Scrutiny
 Object to overly broad policies
 EEOC’s concern is discriminatory impact
̶ Protected groups
 NLRB concern is employee rights and concerted action
̶ Covers non-union work places
 Both will challenge policies even if no one complains
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Criminal Background Checks
 Can you refuse to hire someone who has a felony
conviction for domestic abuse to work in a call center?
1. Yes
2. No
3. It depends
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EEOC and Background Checks
 EEOC: background checks can be discriminatory
 Criminal background checks can have disparate impact on
males and minorities
 EEOC: must be individualized analysis and job-related
̶ EEOC Guidance, April 25, 2012
 Courts not always in agreement
̶ EEOC v. Freeman, 2013 WL 4464553 (D. Md. Aug. 9, 2013)
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Criminal Background Checks
 Still advisable to provide for individual review
̶ Nature of offense
̶ Time of offense
̶ Job duties
 Some state laws prohibited consideration of certain
criminal conduct
̶ California
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Background Credit Checks
 If have such a policy, what are the parameters
 What are you looking for
 Are checks job related
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Social Media
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Purpose
 Protection of confidential information
 Customer and client privacy
̶ Hospital staff
̶ Professional services companies
 Disclosure of company affiliation if posting positive info
 Avoiding discriminatory or harassing conduct
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Social Media Policy
 NLRB has taken aggressive stand against any policy
that interferes with employees’ “concerted activity”
̶ Applies to union and non-union employees
 Cannot have blanket, vague, or over broad policy
̶ Can discipline for sharing company trade secrets
̶ “Non-public information” not always trade secret, Target
Corp. (5/21/13), Boch Imports (1/13/14))
̶ Cannot discipline for discussing employee issues
 Protected concerted action
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Social Media Postings
 What is “concerted activity”
̶ Discussions of the terms and conditions of employment
 Concerted activity
̶
“My boss is a jerk, she’s made me stay til 8:00 every night
and won’t let me put in for overtime”
 “Yeah, my boss does the same thing”
 Not concerted activity
̶ “This company sells junk and the boss doesn’t care”
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End of Employment Policy
 EEOC is challenging policies that have a hard date when
employment ends. EEOC v. UPS (IL. D.C. 2/11/2014)
 “In no event shall an employee’s leave, whether paid or
unpaid, exceed twelve months.”
 “An employee who has not returned to work within three
days after an approved medical leave will be deemed to
have abandoned her job.”
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Overtime Policy
 Employees must obtain express advance authorization
of employee’s supervisor before working overtime. Any
employee who fails to obtain advance authorization will
not be paid for the overtime.
 Good policy?
̶ Yes
̶ No
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Problem
 FLSA requires payment for hours worked
̶ Does not matter if voluntary
̶ Does not matter if contrary to policy
̶ Employee can be disciplined for failure to follow policy, but
still must be paid
̶ Must keep track of hours
 FLSA claims currently very popular
̶ Very expensive
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Dress codes
 Must be non-discriminatory
̶ Religious discrimination
 Prohibition on head coverings
 Requirement of wearing pants
 Cannot interfere with union activity
̶ Prohibition of clothing with insignia
 ADAA
̶ Persons with disabilities may have to be accommodated
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BYOD Policy
 Who has access
 Confidentiality
 Privacy
 Concerted activity
 FLSA issues
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Severance Agreements
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Severance Agreements
 Cannot waive future claims
̶ Do not sign before last day of employment
̶ Second signing on last day; hold back some consideration
 Beware of “Entire Agreement” boilerplate language
̶ Incorporate provisions of employment agreement
 Confidentiality
 Non-compete
 Assignment of inventions
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Severance Agreements
 EEOC recent case against CVS (Illinois federal court)
 Objects to many standard provisions
̶ Non-disparagement clause
̶ Notification to company if receive subpoena
̶ Non-disclosure of confidential information
̶ Covenant not to sue
 Asserts that disclaimer is not sufficient
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