Why Should We Have an Employee Handbook?
Although I’ve written quite a few posts about employee handbooks, I just realized that I never have explicitly stated why an employer should have one – thus, the topic of this post.
An employee handbook is a collection of policies, procedures and other important information that is provided to every employee. Reasons for having an employee handbook include:
- To let every employee know what is expected of him or her on the job
- To help ensure that employees are treated equally and appropriately
- To reduce employee morale problems and complaints related to unstated policies or procedures
- To reduce the risk that employees will allege unfair practices or unlawful discrimination
- To enhance the perceived authority and appropriateness of employer decisions that are based on the handbook
Does your Employee Handbook address social media?
Prudent employers have known, for many years, the importance of Employee Handbooks in setting forth a company’s policies and operational procedures. However, the recent increase in the popularity of social media – Facebook, Twitter, blogs and the like – has taken many employers, and their Handbooks, by surprise.
Policies governing mobile phones, computers, Internet access and e-mail no longer suffice. With social media, every employee – for better or for worse, intentionally or unintentionally – can become a spokesperson for the company.
Handbook Defeats Employee Claim of Attorney-Client Confidentiality
In “Inspection of Employee Text Messages ? Be Careful“, I described provisions concerning company-provided technology that every employer should include in its employee handbook. A recent California Court of Appeal case, Holmes v. Petrovich Development Co., shows that such provisions are strong enough to defeat a claim of attorney-client confidentiality!
Gina Holmes brought suit against her former employer, alleging sexual harassment, wrongful termination and other causes of action. The employer presented as evidence e-mails between Holmes and her attorney – e-mails sent from her employer’s computer – that supported the employer’s case.
Probationary Period for Employees Not Needed and May Cause Problems
The CEO of a client with a half-dozen employees recently asked, “We are about to start hiring again. I would like to add language regarding a 90 day probationary period. Is this a good idea?” My answer was “No.” Here’s why.
I had prepared a form of employment offer letter and an employee handbook for the client. Both of these documents state that employment is at-will. This means that either party may terminate the employment relationship at any time for any (non-discriminatory) reason or for no reason. As a result, at-will employment, by itself, allows a company to terminate the employment of an individual whose performance is inadequate during the first 90 days. A probationary period is not necessary.
Another Reason Why Employees Should Not Disclose Their Passwords
Their are obvious security-related reasons why businesses do not want employees to give their computer passwords the third parties. With the recent decision in Multiven v. Cisco Systems, the U.S. District Court for the Northern District of California has given us a legal reason, as well.
Peter Alfred-Adekeye (“Adekeye”), a former Cisco engineer, left Cisco to form plaintiff Multiven. After his departure, Adekeye used a Cisco employee’s password, with the employee’s permission, to download certain proprietary Cisco software.
Inspection of Employee Text Messages – Be Careful
“Texting” is booming in popularity, especially among younger workers. Are your personnel sending text messages on company-provided devices? If so, you should know about the Ninth Circuit’s decision in Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (2008).
Update: On June 17, 2010, the U.S. Supreme Court, in City of Ontario v. Quon, overturned the Ninth Circuit decision, ruling that the search of employee text messages did not violate the Fourth Amendment prohibition against unreasonable search and seizure because (a) it was motivated by a legitimate work-related purpose and (b) it was not excessive in scope. However, the Court expressly sidestepped the issue of whether employees have a reasonable expectation of privacy in their text messages, so the precautions listed at the end of this post still are relevant.
What Are My Entity’s Compliance Obligations?
Frequently, the first service I provide to a client is to form a new legal entity (corporation or limited liability company). And frequently, once that entity is formed, the client’s first question is “What are my entity’s compliance obligations?”
This post provides a high-level answer to that question.
(If you form a corporation in California, you can find additional information in the Postincorporation Matters document on the Downloads page – image above.) (more…)
Employment Law for Foreigners
This post is about employment law. It is directed particularly to people from other countries who are not familiar with U.S. employment practices.
It is based on my answer to a Quora question. Please see What are the most important aspects of American labor law that a foreigner trying to make a terrestrial logistics company in (any state of) the U.S. should take into consideration?
I am providing this answer based on my experience helping dozens of international clients conduct businesses in the U.S.
Holland in the Valley: Incorporation for International Companies
Several weeks ago, the Netherlands Consulate’s Holland in the Valley staff interviewed me about incorporation for international companies.? Excerpts from our conversation recently were posted at the Holland in the Valley website.
Among the topics we discussed were:
What Must We Do if We’re Going to Be Acquired?
A successful exit by acquisition is one of the great thrills of entrepreneurship. That exit does not come easily, however. This post discusses, by category, the most important documents and information that you will need to provide during the acquirer’s due diligence process.
- Articles of incorporation and bylaws, as amended
- Minutes of board and shareholder meetings and actions
- Share transfer ledger, including name and address of each shareholder
- Agreements pertaining to shares and shareholders’ rights (buy-sell, voting rights, etc.)
- List of holders of option or warrants and all applicable agreements
What Should We Put in an Employment Offer Letter?
From time to time, clients ask me to review their current form of employment offer letter.
As a result, I am writing this post. It is a summary of what I believe every offer letter should convey to the prospective employee from the business and legal perspectives.
Offer Letter Business Terms
From the business perspective, the letter should lay out the most important characteristics of the position: (more…)
The Top Ten Legal Mistakes of Startup and Early-stage Companies
I am pleased to make the article “The Top Ten Legal Mistakes of Startup and Early-stage Companies” available as a Free Download on the Downloads page.
Here are the ten mistakes that are discussed:
- Failing to comply with corporate formalities
- Pretending that employees are independent contractors
- Neglecting to provide and update an employee handbook
- Failing to establish or adhere to discipline or termination procedures
- Failing to ensure that the company owns its intellectual property
- Believing that “open source” means “no restrictions”
- Thinking that all NDAs have the same terms
- Using another company’s standard-form agreement
- Giving “family jewels” to an overseas supplier
Related post: Top Ten Intellectual Property Mistakes of Startup Entrepreneurs
Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.
Arbitrating Employment Disputes: Pro and Con
I prepared a Proprietary Information and Invention Agreement (“PIIA”) to be signed by the employees of a small but established technology company in the Bay Area. The PIIA ensures that the company owns whatever employees create on the job, and it obligates employees not to disclose the company’s proprietary information to third parties.
The client pointed out, however, a conflict between the PIIA and the existing Employee Handbook: The PIIA states that any dispute will be resolved in state or federal court in San Francisco, but the Handbook states that all employment disputes will be subject to arbitration. The client asked me how this conflict should be resolved.