Tag Archives: employment law

6 Sexual Harassment Warning Signs

Unknown-1(Post by Rick Dacri, September 24, 2015)

When discussing sexual harassment, I am frequently asked what to watch for to determine whether harassment might be occurring in their workplace. It is a problem for managers, who are rightfully concerned about it, but can’t be everywhere all the time.

As a manager, you might not be present when an alleged incident of sexual harassment takes place. But, some warning signs may point to potential problems. Here are a few things you should watch for:

  1. Whispered sexual comments and staring when members of the opposite sex pass by.
  2. People frequently gather and tell sexual jokes, stories, or make innuendos.
  3. Employees are subjected to sexual looks, stares, leering or ogling.
  4. Sexually explicit materials, screen savers, pictures, or calendars are in the workplace.
  5. There is deliberate touching, cornering, back rubs or leaning over individuals.
  6. Employees get addressed in a sexual manner.

Management Principal: Make clear to your employees that harassment by supervisors, co-workers and third parties will not be tolerated and that reporting objectionable behavior will not result in any form or retaliation–even when the harasser is a key person in the organization.

So what should you do to ensure that they have a harassment free workplace? There are five key steps to take:

  1. Send the message loud and clear to all employees (and vendors, customers, and visitors) that harassment of any kind will not be tolerated here. And if it does occur, it will be dealt with swiftly and severely.
  2. Model respectful behavior. Position and power does not mean dominance and disrespect. Productive companies value and respect all their employees, regardless of their position or gender. They foster a culture that can best be described as egalitarian.
  3. Train all managers annually on harassment prevention and investigation procedures. Educate all employees on harassment with a clear message that we won’t tolerate it, but if it occurs we will protect you and we will do something about it.
  4. Have clear policy in place—and make sure that everyone reads it and understands it. There must never be any question in anyone’s mind about the company’s position and everyone must know what will happen if harassment occurs.
  5. Train everyone in interpersonal communications and conflict resolution. Give employees the tools to address problems as they occur—but always provide them with a safety net if they can’t resolve the issue.

    There is no place in the workplace for harassment. Employers and employees need to get that.

If you need assistance developing a sexual harassment prevention program or want training for your managers, call me. I can help.

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NLRB General Counsel Offers Guidance on Employee Handbooks

Unknown( Post was written by Allen Smith, J.D., manager of workplace law content for SHRM)

Employers need not read the tea leaves anymore about what employee handbook language the National Labor Relations Board (NLRB) general counsel considers to be prohibited. NLRB General Counsel Richard Griffin Jr. put the agency’s cards on the table in a March 18, 2015, report to NLRB regional directors that he said hopes “will be of assistance to labor law practitioners and human resource professionals.”

The general counsel is taking “an expansive view” of language that is prohibited by the National Labor Relations Act (NLRA), according to Steven Swirsky, an attorney with Epstein Becker & Green in New York City. And much of the language hasn’t been approved or disapproved by courts or the board, he added.

Nevertheless, reviewing the report should give HR professionals ideas on whether and how their policies should be changed, Swirsky added. He cautioned that employers “should not cut and paste,” as different companies will have different circumstances.

Unionized and nonunion businesses alike should pay attention. Swirsky said many employers tune out news about the NLRA because they think it applies only to unionized employers. A big reason for this report is to emphasize that the law also applies to nonunion environments, he remarked.

Confidentiality Rules

The following confidentiality rules are unlawful, and thus should not be included in any employee handbookd, Griffin said: Continue reading

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Avoid Litigation: 20 Things to Do Today

lawsuit(Post by Rick Dacri, with considerable input from Adam Taylor, Esq. of Taylor McCormack & Frame; 2/2/15)

No one wants to find themselves on the wrong side of employment litigation. So here are 20 things you should do to minimize your risks:
1. Update your employee handbook
2. Distribute your sexual harassment policy to all employees yearly (it’s the law)
3. Train your new employees and new supervisors on sexual harassment prevention (it’s the law in Maine for employers with 15 or more employees)
4. Make sure your salaried exempt positions are classified properly
5. Make sure any Independent Contractors meet the state and IRS standards
6. Post all your required state and federal posters
7. Make sure you have I-9s for all your employees and they are properly completed
8. Post your OSHA 300 form
9. Update all your job descriptions
10. Make sure your hourly nonexempt workers are taking their breaks, are being paid for all hours worked, and are compensated when expected to work at home, including taking phone calls, responding to emails, or completing work
11. Promptly address and document performance problems
12. Train interviewers to probe applicants
13. Make sure managers understand how to address FMLA requests and workers’ comp injuries
14. Have a social media policy that meets NLRB standards
15. Clarify ambiguous policies such as how vacation is earned and when incentive bonuses are paid
16. Properly evaluate all employees yearly
17. Don’t rely on “at-will” as the basis of a termination
18. Review all your leave policies
19. Payout all accrued and unused vacation pay to employees upon separation
20. Don’t require employees to pay for losses such as broken merchandise, uniforms or tools
Call Rick Dacri at 207-229-5954 or rick@dacri.com if you have questions, need some help complying or want to train your managers in proper compliance techniques.

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What’s An Employee? Incorrect Definitions Are Costly

images(Post by Rick Dacri, May 10, 2014)

Every morning I pour a cup of coffee, grab the newspaper, and turn directly to the sports page. It’s my way of relaxing before I have to think about work. Unfortunately, not lately.

Earlier this year, I read about harassment and bullying within the Miami Dolphin’s team; later that the NFL is grappling with how they’ll handle openly gay players; and now the NLRB has determined that the Northwestern University football players can unionize. It’s getting to the point that there is no escape from work. The sports page is becoming the new edition of LexisNexis.

I am not going to address any of these three issues directly today. But the NLRB’s decision implies that the players are “employees” and that’s a good segue to what I want to discuss with you: what is an employee? This sounds basic, but it isn’t, and incorrectly defining someone as NOT an employee can have significant consequences to you and your company. Let me explain.

First a definition: “An employee is a person who works in the service of another under express or implied contract for hire, under which the employer has the right to control details of work performance” (Black’s Law Dictionary). That’s clear until you understand there are some broad exceptions to that definition created by the U.S. Department of Labor. Independent contractors and student interns are not employees. Still with me? OK, here it comes.

Independent contractors are not employees and therefore, under the law, employers who engage them have no obligation to withhold taxes or offer benefits (workers comp, unemployment comp and the usual holidays, etc.). But where you can get into trouble is when the IRS, or the Department of Labor or the state views this Independent Contractor as an employee. Now you’re in trouble.

The general rule is that an individual is an independent contractor “if Continue reading

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Avoiding Legal Pitfalls (Webinar)

hammer1(This webinar, which you can listen to now, was presented by Rick Dacri, originally on September 17, 2013)

Managing people effectively is a major challenge for every manager. In this webinar, you will learn how to address 5 critical performance and compliance issues faced by nearly all managers—giving you the confidence and knowledge to immediately apply these new skills.

Specifically, you will learn

  1. How to hire right
  2. How to control and reduce workers’ compensation costs
  3. How to deal with alcohol & drugs in the workplace
  4. How to prevent FMLA abuse

This webinar will last approximately 60 minutes. To watch and listen, click webinar.

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Independent Contractor Standards for Maine

Maine’s new definition of an independent contractor applies to unemployment, wage and hour and worker’s compensation cases according to the State Department of Labor Press Release

 The new independent contractor definition goes into effect Dec. 31, 2012, replacing the current definitions under both the Workers’ Compensation Act and the Maine Department of Labor. Both agencies will operate under the same definition for all cases originating after the effective date.

This new law clarifies the conditions under which a worker should be classified as an employee or as an independent contractor. The independent contractor standard will be applied uniformly in the unemployment, wage and hour and worker’s compensation laws.

Under the new law, both the Maine Workers’ Compensation Board and the Maine Department of Labor will use the new standard to determine whether a person who performs services for payment is an employee or an independent contractor. Independent contractors must be free from the essential direction and control of the employing party and meet several other criteria.

Also included in this new law are clear penalties to deter the intentional misclassification of workers as independent contractors when they are employees per the standard. This practice not only creates a competitive disadvantage for those employers who correctly classify their workers but also increases unemployment tax premiums because fewer employers are paying appropriate taxes. Therefore, the new law includes penalties ranging up to $10,000 to deter this practice.

The criteria of the new law: Continue reading

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Medical Marijuana Law

MUST MASSACHUSETTS EMPLOYERS NOW MAKE EXCEPTIONS TO THEIR POLICIES ON ILLEGAL DRUG USE?

(This guest post was written by the labor attorneys at Mirick O’Connell)

Massachusetts recently became one of a number of states that have laws permitting the use of marijuana for medical purposes.  The Law for the Humanitarian Medical Use of Marijuana (the “Medical Marijuana Law”) that passed as a ballot initiative in Massachusetts on November 6, 2012, exempts individuals with qualifying medical conditions from penalties imposed under state law for the use of marijuana.

Are Employers Required to Accommodate Applicants and Employees Who Use Medical Marijuana?

Most employers have policies or practices which prohibit the possession, use and distribution of alcohol and illegal drugs in the workplace.  In light of the Medical Marijuana Law, must Massachusetts employers now permit their employees to possess and use medical marijuana at work?  Continue reading

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