I know you probably have more pressing
issues on your mind like what you’re having for dinner tonight or how you’re
going to manage to give your cat a bath this weekend, but this is important
stuff for sure! Before we go over how to write position descriptions, we need
to clarify the difference between a job description and a position description.
Though they’re often used interchangeably, they’re not the same.
A job
description is the nature of the work done. It includes the tasks and
responsibilities expected of an employee in a specific position. Example: director
responsibilities may include managing staff, producing quarterly reports,
interacting with clients.
A position description is derived from a job with a more detailed,
concrete set of specific tasks particular to the job. Examples: director of
-HR, -marketing, -finance, etc. Depending on the kind of director in a department,
there are tasks and skills specific to that department. A director of HR is
responsible for managing employee issues and will be administering tasks such
as labor relations/compliance, training, running payroll, benefits and
recruiting while a director of finance will be in charge of maximizing returns
on financial assets by establishing a company’s financial policies, procedures,
reporting systems and oversee general accounting.
You may now be thinking, Yeah, well, I can see how position
descriptions could benefit a company with more employees. Everyone here
understands what they need to do. You’re right. With a smaller company you
might have been able to get away with not writing a specific set of duties and
skills required for that position because everyone basically wears many hats
and jumps in wherever they’re needed.
But look down the road to when you need
to fill a recent vacancy or when your company’s success means you need to hire
more people. You don’t want to be caught scrambling to write something that you
thought about for only two (okay three) hours. If it’s a vacancy, the tendency
here is to write a description that you modeled around the prior employee, not
necessarily what you need from that position.
Check out these things to keep in mind
when you’re assembling the description:
Set compensation
This helps you gauge the market pricing
of this position based on tasks and qualifications required and helps level the
field against (sub)conscious biases like gender, race, and age.
Recruit for the right candidates
A clear position description and job
description summarizing the position gives the purpose of the position and how
the employee will fit in with the rest of the company. Ensuring that potential
applicants understand the major responsibilities and selection criteria will
help attract the right talent… unless of course you look forward to getting responses
from applicants whose idea of job hunting is sending out resumes
indiscriminately so it resembles the
throwing-spaghetti-at-the-wall-and-see-what-sticks method.
Develop the position as the company
grows/changes
The description helps in reevaluating
the position as the company’s needs change. Reviewing the description during
annual performance appraisal time allows to stay true to the position’s duties
while at the same time takes into account possible necessary changes when other
positions are created or changed. It also allows for managers to create
professional development plans with employee input to encourage career growth
and higher job satisfaction.
Performance appraisals
Specific tasks and goals accomplished with
measurable outcomes as outlined in the prior appraisal help “keep it real,” as
in real concrete. Employees will understand their tasks and tend to be focused
and more productive than employees who have a vague description of what their
jobs entail. It’s like playing by the same rules in Monopoly, and I think most
of us know what it feels like playing with someone who has a different set of
rules.
Maintain HR compliance per federal and
state laws
This is a biggie. Creating accurate
descriptions are essential! Without them, you can run into trouble with laws
like the ADA (Americans with Disabilities Act) and FSLA (Fair Labor Standards
Act) just to name a couple. Should there be any issues that arise because your
position description isn’t specific and thorough enough, you will wish you
spent more than two (okay three) hours cranking it out.
So how to write one? If it’s a new
position, write it up based on your company’s required tasks, similar positions
you research from outside sources and input from other managers you work with–definitely an HR manager if you
have one. Make sure you have other eyeballs to proofread it, too. Again, make
sure at least a pair of those eyeballs belong to someone in HR. When writing a
job/position description, you definitely want to give a professional
impression, not some trumped-up last-minute description that’s riddled with
errors.
Whatever you do, if you already have an
employee in that position, it’s important to ask for the employee’s input to
get info directly from that person and to get him/her onboard with hands-on
involvement in crafting it. Don’t ambush the employee with a description out of
the blue. You can approach it in a few ways:
- Talk
to the employee and write one up based on the info received
- Ask
him/her to write it and build on that
- Draft
one yourself and ask the employee to review and tweak it as necessary
Below are the items you should include
to make a great description.
Position title
Make sure it accurately reflects the
role and responsibilities that fit the normal industry titles to be comparable.
Avoid vague titles. “Mad Scientist” is catchy but confusing. Yes, I actually came
across one of those. Make sure it reflects the responsibility level. The title “Director
of First Impressions” instead of “Receptionist” is an extreme example of
puffery and can be confusing.
Position
summary
This describes the purpose of the
position and how the employee fits in with the rest of the company. A
receptionist position might be summarized by “As the first contact point for
visitors and calls coming in, the receptionist provides routing to the proper
parties and departments while ensuring their needs are addressed promptly.”
Description
Write up the specific tasks required
with action-oriented verbs in present tense and specific details while at the
same time keeping the descriptions simple. In other words, don’t write vague
descriptions like “Provide good customer service.” What? Being cheerful and
helpful is what I’d assume. What else? Learn to recognize clients’ voices? Not
chew gum?
Everyone has their own idea of what good
customer service is like, right? Writing it along the lines of “answer questions
from customers calling in and forward to appropriate departments as necessary” more
accurately defines a task.
Use bullet points with short statements
to make it easier to read and digest. It also helps when it comes to annual
performance evaluations because you’ve already got the tasks broken down into
bite-sized chunks and can be discussed in that format.
Required qualifications
List them with the minimum required
qualifications for a new hire such as education, knowledge/expertise and
experience with particular aspects of a position. Remember again, you’re not
writing this based on an employee already in the position.
Ultimately, the goal here is to provide
clarity for both employees and managers and keep everyone accountable based on
specific descriptions. It might seem like a black hole that sucks your time up
but think of it as an investment. Taking the time to develop good position
descriptions increases productivity and accountability, employee retention and
satisfaction plus it saves a lot more time and stress in the future so you have
more time to grow your business, cook a decent meal or even bathe your cat… good
luck with that, by the way.
How to Write A Job Description
Research ElementsI know you probably have more pressing issues on your mind like what you’re having for dinner tonight or how you’re going to manage to give your cat a bath this weekend, but this is important stuff for sure! Before we go over how to write position descriptions, we need to clarify the difference between a job description and a position description. Though they’re often used interchangeably, they’re not the same.
A job description is the nature of the work done. It includes the tasks and responsibilities expected of an employee in a specific position. Example: director responsibilities may include managing staff, producing quarterly reports, interacting with clients.
A position description is derived from a job with a more detailed, concrete set of specific tasks particular to the job. Examples: director of -HR, -marketing, -finance, etc. Depending on the kind of director in a department, there are tasks and skills specific to that department. A director of HR is responsible for managing employee issues and will be administering tasks such as labor relations/compliance, training, running payroll, benefits and recruiting while a director of finance will be in charge of maximizing returns on financial assets by establishing a company’s financial policies, procedures, reporting systems and oversee general accounting.
You may now be thinking, Yeah, well, I can see how position descriptions could benefit a company with more employees. Everyone here understands what they need to do. You’re right. With a smaller company you might have been able to get away with not writing a specific set of duties and skills required for that position because everyone basically wears many hats and jumps in wherever they’re needed.
But look down the road to when you need to fill a recent vacancy or when your company’s success means you need to hire more people. You don’t want to be caught scrambling to write something that you thought about for only two (okay three) hours. If it’s a vacancy, the tendency here is to write a description that you modeled around the prior employee, not necessarily what you need from that position.
Check out these things to keep in mind when you’re assembling the description:
Set compensation
This helps you gauge the market pricing of this position based on tasks and qualifications required and helps level the field against (sub)conscious biases like gender, race, and age.
Recruit for the right candidates
A clear position description and job description summarizing the position gives the purpose of the position and how the employee will fit in with the rest of the company. Ensuring that potential applicants understand the major responsibilities and selection criteria will help attract the right talent… unless of course you look forward to getting responses from applicants whose idea of job hunting is sending out resumes indiscriminately so it resembles the throwing-spaghetti-at-the-wall-and-see-what-sticks method.
Develop the position as the company grows/changes
The description helps in reevaluating the position as the company’s needs change. Reviewing the description during annual performance appraisal time allows to stay true to the position’s duties while at the same time takes into account possible necessary changes when other positions are created or changed. It also allows for managers to create professional development plans with employee input to encourage career growth and higher job satisfaction.
Performance appraisals
Specific tasks and goals accomplished with measurable outcomes as outlined in the prior appraisal help “keep it real,” as in real concrete. Employees will understand their tasks and tend to be focused and more productive than employees who have a vague description of what their jobs entail. It’s like playing by the same rules in Monopoly, and I think most of us know what it feels like playing with someone who has a different set of rules.
Maintain HR compliance per federal and state laws
This is a biggie. Creating accurate descriptions are essential! Without them, you can run into trouble with laws like the ADA (Americans with Disabilities Act) and FSLA (Fair Labor Standards Act) just to name a couple. Should there be any issues that arise because your position description isn’t specific and thorough enough, you will wish you spent more than two (okay three) hours cranking it out.
So how to write one? If it’s a new position, write it up based on your company’s required tasks, similar positions you research from outside sources and input from other managers you work with–definitely an HR manager if you have one. Make sure you have other eyeballs to proofread it, too. Again, make sure at least a pair of those eyeballs belong to someone in HR. When writing a job/position description, you definitely want to give a professional impression, not some trumped-up last-minute description that’s riddled with errors.
Whatever you do, if you already have an employee in that position, it’s important to ask for the employee’s input to get info directly from that person and to get him/her onboard with hands-on involvement in crafting it. Don’t ambush the employee with a description out of the blue. You can approach it in a few ways:
Below are the items you should include to make a great description.
Position title
Make sure it accurately reflects the role and responsibilities that fit the normal industry titles to be comparable. Avoid vague titles. “Mad Scientist” is catchy but confusing. Yes, I actually came across one of those. Make sure it reflects the responsibility level. The title “Director of First Impressions” instead of “Receptionist” is an extreme example of puffery and can be confusing.
Position summary
This describes the purpose of the position and how the employee fits in with the rest of the company. A receptionist position might be summarized by “As the first contact point for visitors and calls coming in, the receptionist provides routing to the proper parties and departments while ensuring their needs are addressed promptly.”
Description
Write up the specific tasks required with action-oriented verbs in present tense and specific details while at the same time keeping the descriptions simple. In other words, don’t write vague descriptions like “Provide good customer service.” What? Being cheerful and helpful is what I’d assume. What else? Learn to recognize clients’ voices? Not chew gum?
Everyone has their own idea of what good customer service is like, right? Writing it along the lines of “answer questions from customers calling in and forward to appropriate departments as necessary” more accurately defines a task.
Use bullet points with short statements to make it easier to read and digest. It also helps when it comes to annual performance evaluations because you’ve already got the tasks broken down into bite-sized chunks and can be discussed in that format.
Required qualifications
List them with the minimum required qualifications for a new hire such as education, knowledge/expertise and experience with particular aspects of a position. Remember again, you’re not writing this based on an employee already in the position.
Ultimately, the goal here is to provide clarity for both employees and managers and keep everyone accountable based on specific descriptions. It might seem like a black hole that sucks your time up but think of it as an investment. Taking the time to develop good position descriptions increases productivity and accountability, employee retention and satisfaction plus it saves a lot more time and stress in the future so you have more time to grow your business, cook a decent meal or even bathe your cat… good luck with that, by the way.
How to Deal with Difficult Employees
Research ElementsYou imagined the freedom of being your own boss is exhilarating, didn’t you? You started your own business with the thought that you wouldn’t have to deal with jerk co-workers and bosses. When I use the term “jerk” I am referring to toxic attitude/behavior or incompetence… or both!
True, you don’t have to deal with the jerk boss, but since you are the boss, guess what? You are in the unenviable position of dealing with a jerk employee. Or not. You can let things slide and avoid having to deal with the situation, but chances are that employee will drag everyone else down or even drive them out. Remember the days you were an employee and the lazy co-worker you had to pick up the slack for during a huge project? Or the manager that belittled you to the point of jumping ship? And no other manager was immediately stepping in to support you? Yes, you’re well aware of the dangers of letting things snowball down a steep hill, plus it takes up too much of your time and mental energy.
You also think if you discipline the employee, you’re probably going to be perceived as a jerk boss. Nice, huh? Even if you have an experienced manager or HR person handling employee issues, their main capacity is to serve as a witness and you will still need to head those dreaded meetings especially if it comes down to terminating an employee.
Before you start wondering what you did in a past life to deserve this karma, let’s change up the traditional thinking on disciplining employees.
The old-fashioned escalation of consequences: progressive discipline (punishment)
Progressive discipline is a euphemistic name for what I nicknamed Dante’s Inferno 2.0: The Four Levels of Employment Hell. It’s characterized by a series of three meetings using a negative, threatening tone while explaining the problem which carries increasingly severe consequences and eventually culminates into the fourth meeting terminating the employee. Here’s how it generally goes:
That’ll show ‘em. Umm, no. Deep down you know it’s like telling someone to calm down in the middle of a heated argument which tends to have the opposite effect. (Just try saying that to any teenager.)
The employee might actually shape up for a bit, and in a few cases it might work. But as you’ve likely observed before, chances are the undesirable behavior will creep back in. The behavior might change but the motivation to change isn’t coming from a true desire to take responsibility and improve. To be fair, if you were on the receiving end, would you have a cheerful outlook on your job if you were threatened with losing your job?
Then what? A second disciplinary session, maybe suspension for the third and final written warning, and then hasta la vista, baby? To add insult to injury, this (ex) employee writes up a lousy Glassdoor review three years later calling you a jerk boss.
If there was a different and more positive approach with a higher chance of sustained improvement and increased mutual respect, wouldn’t you jump at the chance?
Progressive approach: coaching
Coaching involves active participation by the employee. It doesn’t pit manager against the employee and the employee is treated with respect, not threats. It takes the approach of making a positive assumption that the employee will want to resolve the problem: Now, most employees would want to stop doing the things that drag everyone and everything else down. Often, the employee may not even be aware of the effects on others. It’s fairly simple, actually:
When coaching the employee, it might be hard to be encouraging when you’re grinding your teeth into powder out of frustration, but you have to remember this is a person with a life outside of the work setting… a real live person with friends, family, personal issues, etc. Focus on the problem, not the person.
Ask if the employee sees the situation the same way you do to help you both get on the same page. Don’t use subjective phrases like “attitude problem” because it sounds so personal, judgmental and vague. Definitely not helpful. Don’t believe me? Tell those teenagers I mentioned earlier that they have an attitude problem and watch the eye rolling commence.
If it does come down to terminating employment, make sure you have a witness like a manager or preferably an HR person. You might want to give the employee the option to resign. (Check with your legal counsel and government resources to make sure you are in compliance with employment laws specific to your workplace location.) Make it short, to the point and make sure you don’t give the impression that your decision is not final.
Keep in mind that you may get the eye rolling no matter how encouraging you are as some employees just won’t change regardless of approach. They might be a Negative Ned and be super sensitive to the slightest correction, then twist your words around to sound like you were a bully and still end up calling you a jerk boss on Glassdoor.
But that’s okay. Just make sure you preserve their dignity by keeping information confidential, even if your name is being dragged on social media. You knew being your own boss was going to be a challenge in ways you didn’t expect, but if it was easy, everyone would run their own business, right?
25 Good Interview Questions….and 8 to Avoid
Research ElementsWhen preparing to interview job candidates, it’s important for supervisors to plan out their lines of questioning. Decide which skills are most important for the particular position, then focus your questions on assessing those skills. Here are some sample questions to work from:
Employment History
Communications
Organization
Motivation
Managerial
7 questions to NEVER ask…
Independent contractors and the FCRA
FCRA & Federal RegulationsMust employers provide the protections required by the Fair Credit Reporting Act (FCRA) to prospective independent contractors?
Not according to a new decision from an Iowa court (see Smith v. Mutual of Omaha Insurance Company, No. 4:17-cv-00443 (S.D. Iowa Oct. 4, 2018)) which grappled with the question in the context of a lawsuit filed by an individual against an insurance company where he applied to contract as a salesperson but was rejected because of a falsely reported felony in his background check. The plaintiff accused the insurance company of violating the FCRA by failing to provide him with the statutorily required prior notice that the background check resulted in his not being hired.
The insurance company asked the court to dismiss the lawsuit, claiming that the FCRA only requires such notice when an applicant seeks to be hired as an employee, and not as an independent contractor. Since the plaintiff applied for an independent contractor position, he was not entitled to the protections of the statute, the insurance company argued.
The plaintiff countered that he was applying to be an employee of the insurance company and that it was too early to dismiss the case, as further discovery was needed. In the alternative, he argued that the FCRA should still govern his relationship even as an independent contractor.
In ruling on the FCRA issue, Judge John Jarvey began with the language of the law. The FCRA is a broad statute, Judge Jarvey said, and some of its most stringent protections apply when a background check is being obtained “for employment purposes.”
The definitions section of the FCRA, at 15 U.S.C. § 1681a(h), states that “[t]he term ‘employment purposes’ when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.” This text “makes clear that the pre-adverse action notice requirement only applies when a consumer report is used for employment purposes,” Judge Jarvey wrote. “The meaning of ‘employment purposes’ is specifically defined in the statute, and it is defined as being ‘used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.’” District courts in Ohio and Wisconsin have reached the same conclusion, Judge Jarvey noted, citing the decisions for support.
Notably, the Federal Trade Commission (FTC) in its 2011 staff report entitled “40 Years of Experience with the Fair Credit Reporting Act” provided a seemingly contrasting interpretation. The FTC stated that “the term ‘employment purposes’ is interpreted liberally to effectuate the broad remedial purpose of the FCRA and may apply to situations where an entity uses individuals who are not technically employees to perform duties. Thus, it includes a trucking company that obtains consumer reports on individual drivers who own and operate their own equipment; a title insurance company that obtains consumer reports on individuals with whom it frequently enters into contracts to sell its insurance, examine title, and close real property transactions; or a nonprofit organization staffed in whole or in part by volunteers.”
The FTC’s view can be reconciled with that of Judge Jarvey’s by taking the approach that the applicability of FCRA’s requirements depends on the facts and circumstances of the particular relationship, rather than the formal designation of someone as an independent contractor.
Given the still remaining disputed issue of whether or not the plaintiff would have been an employee or an independent contractor for the insurance company, the court ordered limited discovery on the issue and declined to dismiss the suit.
Are you hiring? Do you have a Recruiting Checklist?
Research ElementsJob descriptions. Make sure you have a job description for each position in your company. Job descriptions should reflect careful thought as to the roles the individual will fill, the required skill sets, and other attributes that are important to completing their tasks.
Glossary of Legal Terms
Research Elementsa | b | c | d | e | f | g | h | i | j | l | m | n | o | p | r | s | t | u | v | w
A
Acquittal
Active judge
Administrative Office of the United States Courts (AO)
Admissible
Adversary proceeding
Affidavit
Affirmed
Alternate juror
Alternative dispute resolution (ADR)
Amicus curiae
Answer
Appeal
Appellant
Appellate
Appellee
Arraignment
Article III judge
Assets
Assume
Automatic stay
Return to top
B
Bail
Bankruptcy
Bankruptcy administrator
Bankruptcy code
Bankruptcy court
Bankruptcy estate
Bankruptcy judge
Bankruptcy petition
Bankruptcy trustee
Bench trial
Brief
Burden of proof
Business bankruptcy
Return to top
C
Capital offense
Case file
Case law
Caseload
Cause of action
Chambers
Chapter 11
Chapter 12
Chapter 13
Chapter 13 trustee
Chapter 15
Chapter 7
Chapter 7 trustee
Chapter 9
Chief judge
Claim
Class action
Clerk of court
Collateral
Common law
Community service
Complaint
Concurrent sentence
Confirmation
Consecutive sentence
Consumer bankruptcy
Consumer debts
Contingent claim
Contract
Conviction
Counsel
Count
Court
Court reporter
Credit counseling
Creditor
Return to top
D
Damages
De facto
De jure
De novo
Debtor
Debtor’s plan
Declaratory judgment
Default judgment
Defendant
Defendant
Deposition
Discharge
Dischargeable debt
Disclosure statement
Discovery
Dismissal with prejudice
Dismissal without prejudice
Disposable income
Docket
Due process
Return to top
E
En banc
Equitable
Equity
Evidence
Ex parte
Exclusionary rule
Exculpatory evidence
Executory contracts
Exempt assets
Exemptions, exempt property
Return to top
F
Face sheet filing
Family farmer
Federal public defender
Federal public defender organization
Federal question jurisdiction
Felony
File
Fraudulent transfer
Fresh start
Return to top
G
Grand jury
Return to top
H
Habeas corpus
Hearsay
Home confinement
Return to top
I
Impeachment
In camera
In forma pauperis
Inculpatory evidence
Indictment
Information
Injunction
Insider (of corporate debtor)
Insider (of individual debtor)
Interrogatories
Issue
Return to top
J
Joint administration
Joint petition
Judge
Judgeship
Judgment
Judicial Conference of the United States
Jurisdiction
Jurisprudence
Jury
Jury instructions
Return to top
L
Lawsuit
Lien
Liquidated claim
Liquidation
Litigation
Return to top
M
Magistrate judge
Means test
Mental health treatment
Misdemeanor
Mistrial
Moot
Motion
Motion in Limine
Motion to lift the automatic stay
Return to top
N
No-asset case
Nolo contendere
Nondischargeable debt
Nonexempt assets
Return to top
O
Objection to dischargeability
Objection to exemptions
Opinion
Oral argument
Return to top
P
Panel
Parole
The Sentencing Reform Act of 1984 abolished parole in favor of a determinate sentencing system in which the sentence is set by sentencing guidelines. Now, without the option of parole, the term of imprisonment the court imposes is the actual time the person spends in prison.
Party in interest
Per curiam
Peremptory challenge
Petit jury (or trial jury)
Petition
Petition preparer
Petty offense
Plaintiff
Plan
Plea
Pleadings
Postpetition transfer
Prebankruptcy planning
Precedent
Preferential debt payment
Presentence report
Pretrial conference
Pretrial services
Priority
Priority claim
Pro per
Pro se
Pro tem
Probation
Probation officer
Procedure
Proof of claim
Property of the estate
Prosecute
Return to top
R
Reaffirmation agreement
Record
Redemption
Remand
Reverse
Return to top
S
Sanction
Schedules
Secured creditor
Secured debt
Senior judge
Sentence
Sentencing guidelines
Sequester
Service of process
Settlement
Small business case
Standard of proof
Statement of financial affairs
Statement of intention
Statute
Statute of limitations
Sua sponte
Subordination
Subpoena
Subpoena duces tecum
Return to top
T
Temporary restraining order
Testimony
Toll
Tort
Transcript
Transfer
Trustee
Typing service
Return to top
U
U.S. attorney
U.S. trustee
Undersecured claim
Undue hardship
Unlawful detainer action
Unliquidated claim
Unscheduled debt
Unsecured claim
Uphold
Return to top
V
Venue
Verdict
Voir dire
Voluntary transfer
Return to top
W
Wage garnishment
Warrant
Witness
Writ
Writ of certiorari
Return to top
A Policy Regarding Holiday Decorations…
Research ElementsAs the Second Circuit Court of Appeals has aptly stated, “no holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays.” Before decking the halls, employers should consider the location of holiday decorations. Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another. For example, if a nativity scene is displayed in the reception area or lunch room, the employer may be perceived as favoring the Christian religion. Some employees may this find offensive. Therefore, employers who wish to decorate the workplace should use non-religious, winter-themed decorations such as snowflakes, snowmen, candy canes, holly, and gingerbread houses.
Since non-religious decorations are permissible, there is always a debate over whether a Christmas tree is a religious symbol. While a decorated tree may have religious connotations for some people, the U.S. Supreme Court has determined that a Christmas tree is generally a secular nonreligious symbol. This view was also adopted by the EEOC. Thus, employers may include Christmas trees among their decorations even if an employee objects. Nevertheless, for purposes of promoting positive employee relations, employers should be sensitive to the diversity of their workplace. Thus, even if you have a tree, ornaments with religious connotations, such as crosses, angels, or nativity references should not be allowed.
Another albeit much more risky approach to holiday decorations is to include religious and nonreligious decorations representing a diverse set of cultural beliefs. In determining whether a public entity’s holiday and seasonal display that attempts to include all types of religions and beliefs conforms with the Establishment Clause, federal courts consider three factors: (1) whether the display is noncoercive; (2) whether the display does not give a direct benefit to religion in such degree to establish or tend to establish religion; and (3) whether the display conveys a message to the reasonable observer that the combined display was an effort to acknowledge cultural diversity. (See American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler)
Employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukah themed decorations present a more difficult question. Prohibiting employees from displaying religious holiday-themed decorations in their own workspaces may give rise to claims of violation of free speech and religious expression. Also, because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in an employee’s personal workspace unless it creates an undue hardship on business operations, or if it is visible to the public in a way that implies the entity’s endorsement of a religion.
Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.
OFAC: Know it and love it
International RegulationsWith businesses increasingly including sanctions compliance language based on regulations from the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) in contracts and agreements, employers should take a minute to familiarize themselves with the issue and the potential for costly liability.
OFAC administers and enforces sanctions against countries or individuals (like terrorists or narcotics traffickers) with actions ranging from trade restrictions to the blocking of assets. For U.S. companies, the agency’s enforcement applies to banks, insurers, and others in the financial industry that may be engaged in covered dealings. OFAC takes action against U.S. entities that engage in transactions prohibited by Congress such as trade with an embargoed country or a transaction with a specially designated national (SDN).
Violation of the regulations, which apply to all U.S. citizens, can result in substantial fines and penalties. Criminal penalties can reach up to $20 million and imprisonment up to 30 years; civil fees can range from up to $65,000 to $1,075,000 per violation, depending on the activity at issue.
In an effort to avoid running afoul of such terrifying numbers, companies will include OFAC sanctions compliance language within corporate acquisition agreements, insurance policies, and credit agreements. Businesses are increasingly adding such language in light of stepped up enforcement efforts by OFAC that have resulted in sizable settlement agreements with U.S. entities.
For example, some contracts may include language requiring a party to state that it is not the target of any OFAC sanctions status, that no OFAC investigations are in process, or that it does not engage in transactions with countries like Iran or North Korea. Other deals may feature a provision affirming that a company is not owned by an individual on the list of SDNs, that the company is not based or located in an embargoed country, or assuring that the monies used to make an investment or purchase were not provided by a sanctioned country or individual.
However, it is important to note that the use of compliance language does not insulate a company from OFAC liability. While such a provision may create a contract-based remedy to recover monetary damages based on a fine or settlement with the agency, the clause cannot eliminate liability. Like any other governmental regulator, OFAC is not bound by private contract and can take action even with such terms in place.
To learn more about OFAC, click here. Link: http://www.treasury.gov/resource-center/faqs/Sanctions/Pages/answer.aspx
When Employment Meets Antitrust
Research ElementsCan employers be criminally liable for antitrust violations? According to the Department of Justice (DOJ), the answer is yes.
Violations of antitrust law in the employment context have made headlines in recent years, as the government has cracked down on “no-poach” and “salary-fixing” agreements between companies. Taking the issue increasingly seriously, the DOJ issued guidance promising to bring criminal charges against employers for such illegal conduct.
First, some background. From an antitrust perspective, greater competition among employers not only helps employees – who can negotiate for higher wages or better benefits between companies – but also benefits consumers more generally. Therefore, Section One of the Sherman Act prohibits employers from expressly or implicitly agreeing not to compete with one another, even for seemingly innocuous and beneficial reasons (like saving money).
Demonstrating the government’s interest in employment antitrust violations, the DOJ filed suit in 2010 against Adobe Systems, Apple, eBay, Google, Intel, Intuit, Lucasfilm and Pixar, accusing the companies of promising not to recruit each other’s employees. While the cases resulted in consent judgments for the companies involved, the deals didn’t come cheap. Intuit, Lucas Films and Pixar paid a total of $20 million to settle, while Adobe, Apple, Google and Intel agreed to a $324 million settlement.
In 2016, the DOJ and the Federal Trade Commission (FTC) – the two federal agencies that share responsibility to enforce the antitrust laws – released guidance to help employers avoid potential violations of federal law. The overriding message from the agencies: an agreement among competing employers to limit or fix the terms of employment for potential hires may violate the antitrust laws if the agreement constrains individual firm decision making with regard to wages, salaries or benefits, the terms of employment or even job opportunities.
The DOJ also vowed to proceed criminally against naked wage-fixing or no-poach agreements going forward.
“These types of agreements eliminate competition in the same irredeemable way as agreements to fix product prices or allocate consumers, which have traditionally been criminally investigated and prosecuted as hardcore cartel conduct,” the DOJ explained. If an investigation uncovers wage-fixing or no-poaching agreements, the agency “may, in the exercise of prosecutorial discretion, bring criminal, felony charges against the culpable participants in the agreement, including both individuals and companies.”
To avoid facing jail time for an employment crime, businesses need to educate human resources professionals and employees responsible for hiring about the dangers of no-poach and salary-fixing agreements and establish a compliance program to avoid any errors.
Top on the “not to do” list: entering into agreements regarding the terms of employment with companies that compete to hire employees. This prohibition applies to all agreements, whether written or unwritten, spoken or unspoken. Even informal agreements – for example, where individuals at two competing companies agree that employees at a given position should not be paid above a certain amount or a particular range, or the individuals promise each other not to hire or solicit each other’s workers – are illegal.
It is important to remember that the prohibition on salary-fixing extends beyond simply what a worker is paid and includes other benefits as well, from transit subsidies to meals. If one HR professional wants to stop offering increasingly expensive gym memberships to employees and reaches out to other companies to ask that they stop offering gym memberships as well, that would likely violate antitrust law if the companies reached an agreement.
So-called “gentleman’s agreements” with other companies are equally illegal, even if they are unwritten and informal; nor does the use of a third party intermediary insulate an employer from liability under antitrust law, such as a situation where a group of nonprofits hire a consultant who communicates a “pay scale” to all the organizations to establish a wage cap.
Employers should also take care to avoid sharing sensitive information with competitors, which could serve as evidence of an implicit illegal agreement
Even the mere suggestion of an illegal agreement may constitute an antitrust violation, despite the fact that an agreement is not reached. The FTC filed an enforcement action against an online retailer that emailed a proposal to a competitor that both companies offer their products at the same price. The competitor passed on the invitation and notified the FTC. Even though no agreement was reached, the “invitation to collude” was sufficient for the company to face legal action.
With salary-fixing and no-poach agreements on the government’s radar – and the threat of criminal charges and penalties looming – employers should make an effort to develop antitrust training and compliance programs before a problem arises.
This blog entry was originally posted on Scherzer.com
New Tricks, Old Scams: How to Protect Yourself
Research ElementsScam artists are finding new ways to scare people into sending them money. In Oct 2019, the FTC released a report that stated “Consumers 60 and older report losing money to scams less often than younger adults, but when they do lose money, they report higher individual losses.” This is counter to the notion that older adults are more likely to fall victim to what are often highly effective email, phone, and online scams.
As we see the rise of Internet-connected devices (often referred to as Internet of Things (IoT)) these numbers are only going to increase. This makes security training even more imperative.
Ways to protect yourself
Scammers are reinventing the classic fear-based email scam by merging traditional threats with a victim’s previously breached data that can be often found on the Dark Web.
Others use social media outlets such as Facebook to steal private information.
This seemingly harmless quiz is nothing more than a masked attempt at trying to steal someone’s personal information. Other quizzes might ask for “the street you grew up on,” “favorite sports team,” “favorite city to visit,” “your first car,” or “your first pet.” Don’t these look like security questions for a password recovery?
What should you do?
Be smart. You are probably familiar with the old saying “if it’s too good to be true…” Email scams and website spoofing are among the most common forms of online scams. In fact, they ranked above scholarship/grant scams, as well as fake charity scams in 2017.
Tips to avoid becoming another online statistic as a victim of fraud: