Texas Association of Business

Answer:

The Franken Amendment is a provision included in the Department of Defense Appropriations Act for 2010. Specifically, that federal statutory provision, which was sponsored by Senator Al Franken of Minnesota, requires any defense contractor that receives a contract awarded under the Defense Appropriations Act on or after February 17, 2010, to refrain from entering into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under (i) Title VII of the Civil Rights Act of 1964 or (ii) any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment or negligent hiring, supervision or retention. Further, the provision prohibits an employer with a covered contract from taking any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates the employee or independent contractor to resolve any of the identified types of claims through arbitration.

Although many employers might assume the Franken Amendment is not a concern for them because they do not have a contract of over $1 million with the Department of Defense, this new law also provides that, beginning 180 days after December 19, 2009, defense contractors will be required to certify that their subcontractors with subcontracts of over $1 million on a defense project will also comply with these restrictions on arbitration agreements with employees and independent contractors.

Notably, while originally this legislation was characterized as just prohibiting employers from requiring employees making sexual assault allegations from arbitrating claims, the law appears to have much broader scope than that and extends to any (i) discrimination claim under Title VII and (ii) tort claims related not only to alleged sexual assault, but also to sexual harassment.

All employers should be concerned by the Franken Amendment because it demonstrates the widespread support in Congress for restrictions on workplace arbitration. There are bills currently pending in Congress that would broadly prohibit mandatory arbitration in the employment setting.

For the time being, those employers with significant defense-related contracts or subcontracts should evaluate whether they are covered by the Franken Amendment restrictions and, if so, modify any arbitration programs that may have to comply with these restrictions.

Answer:

The media coverage on H1N1 influenza has indeed been widespread, and many employers are confused about whether to dust off emergency response plans or to maintain business as usual. Despite this confusion, however, governmental agencies have weighed in on an employer’s obligations and best practices as they relate to influenza in the workplace.

For example, the Occupational Safety and Health Administration (OSHA) has restated recently with regard to H1N1 that an employer has a general duty to provide a workplace free of recognized hazards. With this obligation, an employer has a duty to take steps to protect his workforce from the spread of H1N1. For example, OSHA recommends that employers require employees to use appropriate hygiene and engage in social distancing. OSHA also strongly recommends that employers incentivize employees to stay home from work if they exhibit influenza-like symptoms. Examples of employee incentives include a culture of encouraging ill employees to stay home, relaxed leave and leave documentation policies, and compensation for time off.

Moreover, despite the potential for disability discrimination allegations, the Equal Employment Opportunity Commission (EEOC), in guidance released in early October (http://www.eeoc.gov/facts/pandemic_flu.html), encouraged employers to send employees home who report influenza-like symptoms. This encouragement is consistent with the Centers for Disease Control and Prevention’s recommendation that employers should send ill employees home. The EEOC reminds employers that sending an employee home because he or she reports influenza-like symptoms does not violate the Americans with Disabilities Act (even if the employee’s condition meets the definition of a disability) because the employee likely poses a direct threat to the safety of other employees in the workplace.

Answer:

Policies and procedures are generally up to the employer to define and enforce. The employment at will doctrine in Texas gives employers the right to set policies and change them at will depending upon the needs of the business. The only exceptions are so well-established that most employers do not even consider them to be policy areas, i.e., certain practices involving pay, discrimination, safety, and benefits that are regulated under specific statutes. Policies can be oral or written or both, but ideally, all important policies should be in writing. The best policies in the world will do no good at all if the employees are unaware of them. In Texas, policies are generally not regarded as binding employment contracts.

Along with required standards, communicate your company’s goals and culture in your policies. Assemble all previous policies and procedures, whether written or unwritten, and determine what will be continued or changed in the new policies. Get input from employees and managers. Have key company personnel review the draft, incorporate any needed changes, and have the final version reviewed by an employment law attorney. Have each employee sign a form acknowledging receipt. After giving all employees copies, train supervisory personnel in how to use the handbook.

Although employers have the right to change policies at will, always try to give advance notice. Try to anticipate potential problems and think of alternatives when amending policies. If a policy change alters an employee’s work relationship so adversely that a reasonable employee would quit under the circumstances, your company could risk losing an unemployment claim. Ill-advised or badly-timed policy changes could also present your company with drops in employee morale and productivity.

Above all, try to follow your own policies, especially with respect to disciplinary matters. Even-handed enforcement of fair policies helps show that a discharged employee either knew or should have known that a particular problem could lead to discharge, helps indicate that the employee was not singled out for discriminatory treatment, and can also help dispel the notion that an employee was somehow wrongfully discharged.

Answer:

Answer: