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Do I Really Need An Employee Handbook?

Posted on Thu, Jun 14, 2012 @ 09:41 AM

Susan R. Bellby Susan R. Bell

I frequently hear reasons why employers avoid handbooks, such as:

  • “Our company is too small, we don’t need a handbook.”
  • “My employees won’t read it anyway, so why bother.”
  • “A handbook will simply give my employees ideas about ways they can sue me.”
  • “I need to be flexible when managing my employees.”
  • “Handbooks are too expensive.”
  • “Why do I need a handbook, I’m an at-will employer?”

In fact, there are many advantages to having an employee handbook.  A well-written and up-to-date handbook allows an employer to confirm the at-will relationship with its employees.  A handbook sets the stage for consistent and uniform management practices, and advises all employees of the company’s policies and rules – without written policies, past practice becomes policy. A handbook saves employers from having to answer the same employee questions over and over, and helps to ensure a uniform response.  A handbook is a convenient way to provide your employees with information that you are obligated to provide by law. And an employee handbook is a convenient place to include one absolutely indispensible employer policy – an EEO and sexual harassment policy with a complaint procedure. Such a policy may be the employer’s only defense to a hostile environment claim.

But having a handbook is not without some risk.  For example, a poorly drafted handbook can be worse than no handbook at all.  Similarly problematic is a well-drafted but rarely or inconsistently enforced handbook. Moreover, using an inexpensive, canned handbook that has not been tailored to the needs of your company may cause you more trouble than it’s worth.

The key is obtaining a well-drafted handbook that is tailored to the specific needs of your company, training your management staff and supervisors prior to the introduction of your handbook to your entire workforce, and ensuring consistent enforcement of the policies contained therein.  You can avoid the most common mistakes by following these rules:

  1. Do not use a canned handbook or a handbook used by another company without consulting counsel.
  2. Do not include a non-competition policy or an arbitration policy (these need to be in separate, written agreements).
  3. Review other documents to avoid inconsistencies.
  4. Train your supervisors before rolling out your handbook.
  5. Ensure that you obtain a signed acknowledgment of receipt and understanding from each employee.
  6. Ensure that each new hire is provided with the most recent version of the handbook.   
  7. Periodically review your handbook to ensure compliance with current laws.
  8. Train your employees.
  9. Follow your own policies.
  10. Carefully document a legitimate business reason if you must stray from policy for any reason.

Some specific policies you may want to consider for inclusion in your handbook include:

  • A description of the employer-employee relationship (i.e., at-will employment)
  • The company’s policies, rules, and regulations
  • Employment classifications; equal employment opportunity policy
  • No harassment, discrimination or retaliation policy
  • Guidelines for prevention of and handling complaints of harassment, discrimination, and retaliation
  • Health and safety
  • Benefits (insurance, vacation, holidays)
  • Leave policies, including, Family and Medical Leave (for employers with 50 or more employees), military leave, extended leave, bereavement leave, jury duty leave, and administrative leave
  • Attendance
  • Rules of conduct
  • Customer and employee information privacy
  • Internet, e-mail, voicemail, instant messaging, and blogging policy
  • Cell phone usage
  • Violence in the workplace
  • Weapons policy
  • Confidential information and files
  • Drugs and alcohol in the workplace
  • Inspection of property
  • Bulletin boards
  • No distribution/no solicitation policy
  • Hazard communication policy and procedure
  • Working together union free
  • Complaint procedures

Tags: Employee Handbooks, Leave Policies, Rules of Conduct, Weapons Policy, Complaint Procedures

New Ohio Energy Law (SB315): Analysis

Posted on Wed, Jun 13, 2012 @ 10:10 AM

Ohio Environmental Councilby David J. Schmitt

Like it or not, the practice of hydraulic fracturing or “fracking” is here to stay and will have a profound effect on Ohio. Attached is the Ohio Environmental Council’s (“OEC”) analysis of the new rules and regulations governing the fracking and other aspects of the energy sector in Ohio that are contained in SB315, recently signed by Governor Kasich.

While SB315 contains a number of excellent provisions, others create some cause

for concern, particularly those limiting public access to informationregarding the composition and use of various chemicals in the fracking process. These provisions will undoubtedly evolve quickly over time as the state and its citizens gain experience with fracking, so business owners and residents should keep abreast of the latest developments.

OEC Appraises New Ohio Energy Law

The Good, The Bad & The Ugly

THE GOOD Saves energy in state buildings, helps factory owners convert waste heat to clean energy, maintains utility company targets for efficiency & renewable energy, tightens controls on oil & gas drilling

THE BAD Oil & gas industry scuttles several positive proposals by Gov. Kasich, including funding for geological mapping and public's ability to police company claims of trade secrecy of drilling chemicals

THE UGLY Public loses right to appeal oil & gas permit terms & conditions, Power Siting Board oversight of smaller pipelines and fractionation facilities, and practical ability to challenge trade secret claims

Read the whole story here:  http://www.theoec.org/PressReleases/PR_SB315.htm

Tags: OEC, Environmental Law, Fracking in Ohio, SB315

11 Tips for Drafting Non-Disclosure Agreements

Posted on Mon, Jun 11, 2012 @ 11:13 AM

by Jack B. Harrison

Jack B. Harrison

Often businesses begin serious negotiations or discussions without a nondisclosure agreement in place, even while revealing confidential information in the context of the negotiations or discussions.  This can be a dangerous practice, since confidential and proprietary information and data may be the most valuable asset a business owns.  As with any contract, the nondisclosure agreement can provide vital protection, but should be drafted with care. Here are some tips to consider in drafting a nondisclosure agreement, as there really is no one size fits all agreement.

  1. Nature of the Obligation.  At the core of any nondisclosure agreement is language that prohibits one party from wrongfully using or disclosing certain information received from the other. The agreement should require the recipient of the information to exercise the same degree of care that it would use to protect its own confidential information, but, at a minimum, the recipient of the information should be required to exercise a reasonable degree of care.
  2. Mutual v. Unilateral. Because, in almost every case, each party will disclose some sensitive information, it almost always makes sense to include mutual confidentiality obligations.
  3. Protected Material. To protect "Confidential Information," the nondisclosure agreement should define exactly what information is included in that term.  The nondisclosure agreement should provide some examples of what information or data is included, such as “technical, financial and business information” and make clear that the information or data may be in oral, written, physical or electronic form.
  4. Marking Requirement. The nondisclosure agreement should include a mechanism for identifying protected information at or soon after the time of disclosure.  As a compromise, the agreement may state that confidential information must be marked as such or identified as confidential in a subsequent writing.
  5. Permitted Use. The nondisclosure agreement should state that confidential information may be used only for a particular purpose, such as exploring the possibility of a business relationship between the two parties, and no other purpose. Of course, the terms of that business relationship will be laid out in a separate agreement.
  6. Permitted Disclosure. Nondisclosure agreements typically contain an exception, permitting disclosure by the recipient to its attorneys, accountants, or employees who have a legitimate need to know or in response to a court order, or the like.  The agreement should be clear that the legitimate need to know requirement is explicit.  The agreement may also require that prior notice be given before any disclosure and that any third-party recipients must agree to confidentiality obligations at least as strict as those stated in the nondisclosure agreement.
  7. Duration of Obligation. The nondisclosure agreement should state a term for the entire agreement, because a contract with no stated term is often found to be terminable at will. Then, the confidentiality obligation may be described as lasting, “For the Term of this Agreement and __ years thereafter.”
  8. Remedy for Breach. The nondisclosure agreement should state that, in the event of a breach, monetary damages would not be sufficient and that the parties agree injunctive relief is proper.
  9. Mechanism for enforcement.  The nondisclosure agreement should set out a mechanism for its enforcement and for resolving any dispute over the damage caused by a breach of the agreement.  This may be through a lawsuit filed in a court of competent jurisdiction or some type of alternative arbitration forum.
  10. Jurisdiction and Choice of Law. Tied to the mechanism for enforcement, the nondisclosure agreement should specifically state what state’s law will be applied to the enforcement of the agreement and what court will have jurisdiction over an enforcement action.  These clauses become particularly important when a business is involved in negotiations with an out of state or international business. 
  11. Indemnification.  The nondisclosure agreement should state that, in the event a breach is proven to have occurred, the breaching party agrees to indemnify the non-breaching party for any attorneys’ fees or expenses that are necessary to enforce the terms of the agreement.

Before entering into any discussions or negotiations where confidential or proprietary information will be disclosed, a prudent business should meet with counsel, review the nature of the information that may be disclosed, and ensure that an appropriate nondisclosure agreement is in place before any information is exchanged.


Tags: Non-Disclosure Agreements, Business Negotiations

What's In A Name?: Protecting Your Most Valuable Asset

Posted on Fri, Jun 08, 2012 @ 02:33 PM

Sara Straight Wolfby Sara Straight Wolf

The familiar phrase from Shakespeare’s Romeo and Juliet tells us “A rose by any other name would smell as sweet.”  But what if the “Rose” is your business name, in which you have invested time, money and effort to establish a good business reputation and to become known in your field, and you found that it was suddenly being used by another business unrelated to yours?  Would you change the name of your business, since your business still “would smell as sweet?”  I don’t think so! 

The name of a business is a valuable asset of the business, and most business owners want to protect their names and keep others from using them.  No one feels good about permitting another business to ride along on her advertising dollars.  And what if there is a likelihood that the two businesses could be confused?  There could be problems with customers, suppliers, even banks. What a mess!

This scenario happens more often than you would imagine.  A look at the business listings in the greater Cincinnati phone book shows that 7 businesses use the name “Evergreen” and 19 businesses use the name “Express.”  Of those 19 using the name “Express,” 3 are in businesses relating to automobiles and 2 are in the field of personnel staffing.  And as for business names starting with the word “Family,” there are more than 50.

How can you protect your business name, or service or product name, from use by others? First, you should choose the name with care, trying to avoid common names and descriptive names that others might be using, such as “Cincinnati Packaging.”  Second, you should register your use of the name with state or federal agencies, because registration both establishes your use and gives you certain rights to sue infringers.

A business accrues rights in any name, either a trade name (the business name), trademark (a product name), or service mark (the name of a service), through using that name in commerce, and the law protects the first one to use the name with a particular set of goods or services in a particular geographical area of commerce.  If a business uses a name in interstate commerce (and who doesn’t these days?), then the business is entitled to register the name with the United States Trademark Office.  If the business only uses the name within one state, there are also state registration procedures for trade names, trademarks and service marks in Ohio, Kentucky and Indiana.

The strongest business names, trademarks or service marks are distinctive, fanciful and arbitrary.  Think “CINTAS” and “Pepsi Cola.”  In analyzing potential names, you should avoid geographic names and descriptive names.  The name “California Pizza Kitchen” was denied registration as a trademark because it was geographically descriptive and descriptive of certain foods.  You should search the U.S. Trademark database at www.USPTO.gov, or have a search performed for you, and also search the internet, the phone book, and trade directories to see whether the several names you have in mind are previously in use. 

After deciding on a name, you should apply for registration with the United States Trademark Office (or file a state registration) in the class of goods and services in which you are using the name. Trademarks and service marks are classified according to their use, and prior use by some other business in one area of commerce will not disqualify your application for a different set of products or services unless there is a likelihood of confusion in the minds of ordinary consumers.  As you know, the mark “Delta” is used both for faucets and for an airline.

So now that you have chosen a name wisely and registered it for use with state or federal agencies, what happens if someone starts using the same or a confusingly similar name?  You should investigate their use, and send them a strongly worded letter demanding that they cease all use of your name.  This letter will state your claim to the right to use this name, will state how long you have used it and whether you have registered it with state or federal agencies.  Then it will demand that the other person stop using the infringing name. 

If the infringer does not stop, you must assert your rights in federal or state court by bringing a trademark infringement action.  If you are successful, and prove likelihood of confusion, or that they are “palming off” their goods or services as yours, then the court will order the infringer to stop using the name, and also to pay you damages.  The measure of damages is either the profits earned by the infringer, or the losses your business suffered, during the time that the other business used the infringing mark.

Invest in your business name, protect your business name, and guard against infringers.  Afterall, your business name is your most valuable business asset!

Tags: Intellectual Property, Business Name, Trademark

The EEOC's 5 Recommendations on Avoiding Liability When Utilizing Criminal Background Checks

Posted on Wed, Jun 06, 2012 @ 09:01 AM

Susan R. Bellby Susan R. Bell

If you are an employer, you, like most other employers, probably ask job applicants whether they have had any criminal convictions.  Most employers view a history of criminal conduct just as relevant as, say, a person’s education or job history.  So, is there any legal problem asking about criminal convictions? 

Maybe, according to the Equal Employment Opportunity Commission (EEOC).  On April 25, 2012, the EEOC issued new enforcement guidance regarding the use of arrest or conviction records in employment decisions.  The EEOC’s new guidelines are rooted in the position that such use of criminal records has a disparate impact on certain minorities.  In other words, the EEOC finds that a seemingly neutral criminal background check policy, when applied to all job applicants and/or employees, will disproportionately screen out individuals based upon race or national origin, thus having a disproportionate effect on some minorities.  In the EEOC’s view, this disparate impact may violate Title VII.

The EEOC notes that arrest and incarceration rates are particularly high for African American and Hispanic men, and cites statistical studies predicting that 1 in 17 white men will likely serve time in prison during their lifetime, while the numbers are 1 in 6 for Hispanic men, and 1 in 3 for African American men.  Although not expressly discussed, the EEOC’s Guidance is based almost exclusively on statistical evidence regarding minority males.  Other studies – not discussed by the EEOC -- indicate that while arrest and incarceration rates for minority females are higher than for white females, the rates are not nearly as high or disparate as those reported for minority men.  Perhaps the EEOC’s silence on minority females indicates a belief that a minority female may find making a disparate impact claim more difficult.

In order to avoid liability under Title VII, the EEOC recommends that employers conducting criminal background checks take the following steps:

1.     Treat all applicants with comparable criminal records equally

Any policy requiring the exclusion of individuals based upon past criminal conduct must be applied equally without consideration of race or ethnic origin.  Be consistent.

2.     Avoid blanket no-hire policies

Policies that eliminate all applicants with any criminal conviction are overbroad and may result in a charge alleging a violation of Title VII.  Employers should weigh the following: (a) the nature and gravity of the offense; (b) the amount of time that has passed since the offense or completion of the sentence; and (c) the nature of the job held or sought. 

In addition, the EEOC encourages employers to conduct an individualized assessment to include (a) informing the individual that he may be excluded based upon his criminal history; (b) providing an opportunity for the individual to demonstrate that exclusion should not apply under his particular circumstances; and (c) considering whether the individual’s additional information demonstrates that an exception to the policy is appropriate.

3.     Ensure that the specific offense used to bar consideration for employment is job
         related and consistent with business necessity.

Narrowly tailor the policy to identify criminal conduct with a clear nexus to the job position at issue, and document the justification for the policy and procedures.

4.    Avoid the use of arrest records when making employment decisions.

Because an individual is presumed innocent until proven guilty, an arrest record alone does not prove that criminal conduct has occurred.  Accordingly, an exclusion based on an arrest record alone “is not job related and consistent with business necessity.” Nevertheless, the EEOC recognizes that an arrest record “may, in some circumstances, trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action,” and again encourages an individualized assessment.

5.     Validate the criminal conduct exclusion for each relevant position. 

The EEOC instructs employers to validate any criminal conduct exclusion for a particular position.  Notably, however, the EEOC recognizes that currently, “[a]lthough there may be social science studies that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications, and thereby provide a framework for validating some employment exclusions, such studies are rare. . . .” Where the use of formal validation is not possible or readily available, employers are encouraged to use selection/exclusion procedures that are as job related as possible and that will eliminate disparate impact.


Of particular note is the EEOC’s position that because Title VII preempts state and local laws, the fact that an employer adopts a particular policy in order to comply with a state or local law is no defense, should the EEOC find the policy is neither job related nor consistent with business necessity.  However, the adoption of a policy based upon a federal law or regulation is a defense to Title VII liability, as long as the employer has not exceeded the mandates of that law or regulation.

So, can an employer avoid potential liability by simply not conducting criminal background checks?  While forgoing such investigations would avoid scrutiny of this aspect of the employer’s hiring practices under Title VII, the employer would increase its risk of hiring persons who may commit crimes against the employer, other employees, or customers, and thereby expose the employer to claims from the crime victims.  The better course: perform a criminal background check that is reasonable, job related, and consistent.

Tags: Criminal Background Checks, EEOC, Title VII

Townships May Not Legally Collect 'Impact Fees' On New Development

Posted on Mon, Jun 04, 2012 @ 09:31 AM

Jack B. Harrisonby Jack B. Harrison

In a 7-0 decision the Supreme Court of Ohio held yesterday that “impact fees” assessed by a Warren County township on new residential and commercial development projects within its borders to pay for roads, parks, police and fire protection constitute taxes that the township is not legally authorized to collect under Ohio law.  Drees Co. v. Hamilton Twp., Slip Opinion No. 2012-Ohio-2370.

The Hamilton Township Board of Trustees adopted a schedule of fees or assessments to be charged to applicants for zoning certificates for new construction or redevelopment of property within the unincorporated areas of the township. The trustees’ resolution established four categories of fees: a road-impact fee, a fire-protection-impact fee, a police-protection-impact fee, and a park-impact fee to offset increased services and improvements the township would need to provide because of the development.

The Supreme Court concluded that despite the fact that the Township referred to these funds as fees or assessments, based on the Court’s prior decisions, these were, in fact, taxes that the Township did not have the legal authority to levy.  Justice Pfeifer wrote in his opinion: “The fact that the township’s resolution calls the assessments ‘fees’ is certainly not sufficient to establish that the assessments are not taxes. In order to determine whether certain assessments are taxes, we must analyze ‘the substance of the assessments and not merely their form.’

In analyzing the substance of the assessments, the Court determined that the “assessments” in this case were not regulatory in nature, but rather were primarily a means of revenue generation for the Township.  Further, the Court found that these funds were now targeted to benefit the particular area on which the assessments were levied, but were, instead, used to fund programs generally throughout the Township.  Additionally, the Court concluded that those upon whom these assessments were imposed received no specific benefit as a result of the assessment, but rather simply received the same services that others throughout the Township who do not pay the assessment received.

Based on these factors, the Court concluded that these assessments bore all the hallmarks of a tax and, were thus, beyond the authority of the Township to impose.  This decision is important both to developers who have historically opposed the imposition of such assessments or fees on their new developments and to local governments who have made use of these assessments or fees to fund services as their community services became increasingly burdened by new development. 

For those of you who are developers, you may wish to carefully review assessments that have been imposed on communities you have developed in light of this decision.  For those of you who are administrators or elected officials in local communities who have or will wish to impose assessments on new or existing developments, you should do so carefully and be guided by this decision in developing and enacting such assessments.  It is likely that there will now be other challenges to similar assessment regimes across Ohio.

Tags: Impact Fees, Townships, New Development