5 Ways to Minimize Workplace Disputes (Before They Happen)

Culled from Employment Law commentary and guidance written by leading lawyers and law firms, here are five ways to minimize the impact of workplace disputes before they even happen:

1.Pay your employees for time worked:

“Under the Fair Labor Standards Act, employees are entitled to pay for any time that they are ‘suffered or permitted’ to work. In this case, the employee was given an assignment that he evidently concluded could not be completed during his regular work hours, and as a result worked additional time. Perhaps his conclusion was unreasonable, but under these circumstances it will be difficult at best to argue that the employee was not “suffered or permitted” to work the extra hours.” (from The Myth of “Unauthorized” Overtime by Franczek Radelet P.C.)

“… employees need to be paid for time spent reading or responding to work-related e-mail. If this occurs only sporadically and the time involved is truly de minimus – for example, if the employee occasionally types out ‘Thanks’ or ‘OK’ in response to a short message – it may not be an issue. However, if you do not have any mechanism for employees to track and report this time, you may have no way to prove that the time spent was in fact minimal.” (from Do We Have to Pay Employees for Checking E-Mail Outside of Work? by Franczek Radelet P.C.)

2.Don’t interfere with employee free speech:

“Employers beware: The National Labor Relations Board is scrutinizing company social-media policies — and their rulings apply to all companies, whether or not they are unionized. If Facebook postings or tweets involve working conditions or wages, employees are free to comment.” (from Interfering with Employee Speech by Fox Rothschild)

“The National Labor Relations Board (‘NLRB’) ruled last month that an employer’s termination of non-unionized employees who had appeared on a television newscast wearing their uniforms while making disparaging statements about the employer violated the National Labor Relations Act (‘NLRA’). The NLRB held that the employees’ behavior constituted protected concerted activity within the meaning of Section 7 of the NLRA because the statements were related to a work dispute and were not disloyal, reckless or maliciously untrue.” (from Fenwick Employment Brief – August 16, 2011 by Fenwick & West LLP)

“… employees have the right under the NLRA to engage in concerted activity for mutual aid and protection. This includes discussing working conditions, wages and benefits with coworkers. Employers are prohibited from interfering with this right by either promulgating overly-restrictive rules or disciplining employees who engage in such activities.” (from Obama NLRB: Boldly Going Where No Board Has Gone Before by Warner Norcross & Judd)

3.Clearly communicate what’s in your non-compete and trade secret injuctions (so employees know how not to break them):

“This means it is not sufficient for a court to merely enjoin a defendant from using or disclosing, for example, the ‘trade secrets described in the plaintiff’s complaint.’ Nor would it be sufficient to preclude a defendant from ‘using “confidential information” as that term is defined in defendant’s employment agreement.’ This does not mean that a court needs to specifically list each and every discrete piece of information that is the subject of the order. Rather, it simply means that a party required to comply with an injunction must be able to determine from the words of the injunction what he can and cannot do, or what he is required to do.” (from Exactly Which Trade Secrets Am I Enjoined From Using? by Fisher & Phillips LLP)

“Employers around the country are increasingly relying on the Computer Fraud and Abuse Act (CFAA) to assert a claim for damages where there is evidence that a former employee has misappropriated an employer’s electronic data for the benefit of the employee’s new employer. While the CFAA is a criminal statute, it also provides a civil cause of action for victims of employee data theft, as well as an avenue into federal court for employers who are usually not diverse from their employees and typically rely on state law claims.” (from Breaching Your Non-Compete May Be Breaking the Law by Warner Norcross & Judd)

4.Develop – and implement – comprehensive anti-discrimination and anti-harassment programs:

“Effective training for supervisors and managers actually helps reduce costs in the long run, because it helps supervisors prevent claims before they are filed. The United States Supreme Court and the EEOC have emphasized the importance of supervisor training in the context of discrimination and harassment claims. Indeed, training is recognized under the law as an essential part of an ‘affirmative defense’ to claims that supervisors engaged in harassment.” (from A Reminder Regarding the Importance of Supervisor Training by McNees Wallace & Nurick LLC)

“Put simply, retaliation law prohibits employers from ‘getting even’ with an employee who 1) engages in ‘protected conduct’ (e.g., files a lawsuit or administrative charge, testifies or participates in an investigation or hearing, promotes better working conditions), and/or 2) opposes an unlawful practice. This protection is not codified in any one statute, but is found in varying forms in laws that create workplace rights, such as employment discrimination laws, wage and hour laws, and leave and benefits laws — even the bankruptcy code and state wage garnishment laws include anti-retaliation provisions.”  (from How to protect your business from workplace retaliation claims by International Lawyers Network)

5. Investigate all allegations of employee misconduct thoroughly, properly, and in an timely manner:

“For employers, the quality of a workplace investigation into alleged employee misconduct sets the stage for future legal action. If an employer conducts a timely and proper investigation, significant legal action may be mitigated, or completely avoided. However, if an employer conducts an improper and untimely investigation the employer may be subject to significant liability in the future.” (from Investigate or Litigate: Avoiding Costly Litigation Through Proper Investigation by Michael Rossiter)

“Now that the Supreme Court has officially recognized ‘cat’s paw’ liability for employers whose decisions are tainted by an individual with an unlawful motive, it is more important than ever for employers to conduct workplace investigations that are above reproach. … And because it’s more fun to talk about mistakes than what people do well, I’m going to focus on five workplace investigation errors that I see regularly.” (from 5 egregious errors that endanger employment investigations by Constangy, Brooks & Smith, LLP)

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A bonus link for reading this far, from Constangy, Brooks & Smith, LLP:

To guarantee an employment lawsuit, just follow these five “worst practices”

“The Wall Street Journal recently reported that approximately 75 percent of departing employees would not recommend their former employers to others looking for a job, almost a 100 percent increase over the ‘disgruntlement index’ from 2008. … Meanwhile, the Equal Employment Opportunity Commission received more than 99 thousand charges in 2010, an increase of approximately 6,000 since the prior year. No telling what the numbers will be for 2011. My guess is ‘atrocious’.” Read more»

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