Does my company really need an Employee Handbook?

If you have more than 15 employees, it is careless if you don't have one. Fifteen employees is the threshhold concerning liability regarding discrimination claims. Other benchmarks include 20 employees for age discrimination, 50 employees for Family Medical Leave, and 100 employees under the WARN act.

An employee manual can create many advantages in litigating employment discrimination claims because in the handbook you can clearly ask employees to contact the appropriate individual before a claim is permitted to be litigated. In other words, an employee handbook, if properly constructed can give you additional save guards. These safe guards have been clearly delineated in a Supreme Court Ruling called the Farragher defense, which states that employees normally must give employers an opportunity to cure the discrimination they are experiencing.

Additionally, an employee handbook is a simple way of communicating an employer’s expectations and requirements to employees. While it is best to combine the delivery of the handbook with an oral discussion of key policies, the handbook’s collection of written policies provides employees with a place to go when they have questions. Moreover, employee morale is positively influenced when there is prior notice of what is required and even-handed application of those requirements. It is the presence of written rules and consistent application of them that can help employers prevail on such claims deriving from FMLA, Unemployment Compensation, and Discrimination.

Although in Florida, an employee handbook is not a contract, Courts, and more specifically, Jurors, will generally require the employer to follow its own policies and procedures. As such, don't make policies and procedures you do not intend to follow. Explain to the employee that their job is an "at will job" and make sure you require employees to acknowledge in writing that they have received a copy of the handbook.

In any event, before finalizing your employee handbook, you should have it reviewed by an Employment Law Attorney.

What Constitutes an Adverse Employment Action?

So, your employer is discriminating against you? Well, to be legally actionable, your employer must take an action against you that is tangible. Granted, tangible means many things to different people. Even Judges across the United States have had many different opinions on what a tangible adverse employment action means. Some Judges have ruled that a tangible employment action included such things as termination or demotion (i.e., actions that affected the employee's benefits). Other Judges have defined it more liberally and concluded that an adverse employment action is any action that targets an employee and creates any disparate treatment. In a landmark June 2006 decision, the Supreme Court in White v. Burlington defined an adverse employment action as any action by the employer that would dissuade a reasonable employee from having asserted a right. This means that any action that is taken by an employer towards an employee may be construed as a legally adverse employment action if it is reasonable to construe it as such (i.e., change in schedule, change in assignments). The end result is that more of these cases will be going to a Jury. This case was definitely a win for employees.

Who is responsible for my FMLA rights if my employer uses a staffing company?

The short answer is that your primary employer is responsible for your FMLA rights and the secondary employer is simply not allowed to interfere with your rights.

The Courts use different criteria for ascertaining who is your primary or secondary employer. Normally, for purposes of the FMLA, the primary employer is the staffing agency. Astonishingly enough, however, for FLSA purposes, i.e. overtime, the primary employer is the company that the employee provides services for, and not the staffing agency. This is particularly surprising because the FMLA was modeled after the FLSA. However, there is the Code of Federal Regulation that trumps this general rule: 29 C.F.R. 805.106 states that only the primary employer is responsible for providing FMLA leave and that normally the primary employer is the staffing agency.

Hence, if you are owed overtime, go after the employer you provide services for. If your FMLA rights have been breached, go after the staffing agency.

What Constitutes Sexual Harassment?

There is no hard rule that Courts use to determine what constitutes Sexual Harassment; however, Courts use certain guidelines as well as use a totality of the circumstance test. Generally speaking, the conduct/harassment needs to be more than merely insulting or rude and boorish behavior. The anti-Sexual Harassment laws are not intended to be “general civility codes.” The required standard is to establish that the conduct/harassment was so severe or pervasive that it adversely affected the terms or conditions of the employee's employment. The adverse effect on the employee must be subjective, as well as objective. Not only must the employee suffer from the harassment, but it is also required that a reasonable person in the shoes of the employee would likely have suffered from such conduct. The latter is primarily a jury issue, if a minimum of bad conduct on the part of a co-worker or supervisor is established.

Certainly, repeated, unwanted touchings in the work place is sexual harassment. Repeated sexual jokes, if offensive, may also rise to the level of harassment.

With co-worker sexual harassment, the employer must be given an opportunity to stop the sexual harassment. This usually means that the employee is required to inform his or her manager or human resources of the offensive conduct in order for the employer to enjoy liability.

With sexual harassment by a supervisor, it gets a bit trickier. If the employer has a direct and appropriate policy and procedure to address sexual harassment by a supervisor, the employee should follow the process; otherwise, the employer may have an affirmative defense against the employee and abscond liability.

Of course, after an employee complains of sexual harassment, and the employer does nothing or, even worse, if the employer retaliates against the employee, then the employer incurs liability, including an additional claim of retaliation under Title VII.