Isn’t Consistency Great?

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There is probably no more hard and fast rule, or favorite word of human resource professionals, than “consistency.” And we love consistency, right? It allows you to say “no” to an employee who wants something outside of the norm. It gives you a guilt-free reason to evenly apply policies, even when the result may otherwise seem to be unfair, disproportionate or even unwarranted. It makes responding to U.S. Equal Employment Opportunity Commission (EEOC) charges easier when you can show a clear pattern of how employers apply or enforce policies. In short, consistency makes life easier. Or does it? Continue reading this entry

Employer Wellness Programs: Finally (or at Least Potentially) Some Clarity

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Late last week, the U.S. Equal Employment Opportunity Commission (EEOC) issued its long-anticipated proposed regulations regarding the application of the Americans with Disabilities Act (ADA) to employer-sponsored wellness programs for employees, and the news for employers is not all bad. In fact, while the guidance only comes in the form of proposed rules (meaning there is now a mandatory 60-day public comment period after which the agency will issue its final rules), its clarity on how employers can use financial incentives to encourage workers to participate in wellness programs without violating federal law is welcome news for employers. Continue reading this entry

Common Sense Prevails: Working From Home Sometimes Will Not Work

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Well, phew.

We like when legal developments we believe raise troubling questions with problematic implications later develop into something seemingly more rational based on the intersection of law and logic. One such pleasant development occurred last week, when a federal appellate court reversed an earlier decision suggesting employers could no longer require many workers to actually come to work. However, employers should also be careful not to mistakenly conclude that telecommuting is not a reasonable accommodation as a general matter. Continue reading this entry

Don’t Let the Door Hit You … Oh, and I Have a Few Questions Before You Go

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Regardless of how great you are as an employer, not all of your employees will stick around forever, especially your most valuable employees. If the employee is valuable to you, you can be sure he or she would be just as valuable, if not more so, to a competitor. When the day comes to say goodbye, make sure to have an exit strategy in place to guard against your confidential information and trade secrets walking out the door with your former employee.

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SEC Blows the Whistle on Confidentiality Agreements

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Thanks to a recent enforcement action brought by the U.S. Securities and Exchange Commission (SEC), it may be time to review and revise the confidentiality provisions in employment agreements, severance agreements, employee handbooks, and other similar material.

What Happened?

As part of its regular compliance program, an employer routinely conducted internal investigations in response to allegations of potential illegal or unethical conduct. The SEC discovered that the employer conducted interviews with employees as part of the internal investigations and, in connection with the interviews, asked employees to sign form confidentiality agreements that: (i) prohibited the employee from discussing the interview without prior authorization from the legal department; and (ii) made it clear that unauthorized disclosures may result in disciplinary action, including termination of employment. The SEC determined that these confidentiality agreements violated whistleblower protections under federal securities laws and required the company to revise the confidentiality agreements as part of its settlement with the SEC to make it clear that nothing in the agreements would interfere with the employees’ ability to exercise their rights under whistleblower provisions of any federal law or regulations (what we’ll call a “whistleblower carve out”). Continue reading this entry