Tag Archives: policies

December 15, 2014

Are Your Employee Handbooks and Policies Up-to-Date?

By Mark Wiletsky

As 2014 comes to a close, employers should consider reviewing and, if necessary, updating handbooks, policies, and employment agreements.  Organizations sometimes devote significant resources to developing policies or handbooks, but if they are not regularly updated or revised, the policies and handbooks may not be particularly useful.  In fact, an outdated policy may end up causing confusion among employees and managers, or create issues for the organization if a dispute arises.  To avoid these issues, consider (among other things):

  • Changing your handbook to eliminate old or outdated policies, and ensure the current policies accurately reflect current practices;
  • Reminding employees about key policies, such as anti-discrimination/harassment and nondisclosure policies; and
  • Revising or updating nondisclosure, noncompetition, and/or nonsolicitation agreements.  In Colorado, continued employment is generally sufficient consideration for such agreements, but in other states or jurisdictions, that might not be the case, so tying an update to a year-end bonus, raise, or promotion may be a good way to ensure adequate consideration exists for new or revised agreements.

Rolling out new or updated policies in the first quarter of 2015 may be a good way to introduce new and existing employees to the changes or updates.  In addition, if you do not already do so, consider highlighting key policies, such as anti-discrimination and anti-harassment, or conducting an annual training on critical policies.  Doing so may limit potential claims, or at least put you in a better position to defend against a claim down the road.

April 24, 2012

Good Documentation Dooms FMLA Claim

by Mark Wiletsky

A recent case issued by the Tenth Circuit (which covers Colorado) provides a good reminder about the importance of good documentation, and following your employment policies.  In Peterson v. Exide Technologies, the Tenth Circuit affirmed summary judgment in favor of Exide Technologies, dismissing Peterson's Family and Medical Leave Act (FMLA) and wrongful discharge claims as a matter of law.  Peterson was involved in a forklift accident, in which he was injured.  After the accident, he was placed on FMLA leave for 10 days.  After investigating the accident, the employer determined that Peterson had violated its safety policies.  Therefore, Exide terminated Peterson four days after the accident, while Peterson was on FMLA leave.

Peterson then sued, claiming his discharge violated his rights under the FMLA, and gave rise to a common law claim for wrongful discharge in violation of public policy.  The district court and the Tenth Circuit disagreed.  Peterson had a history of documented safety violations, and he had no evidence that the stated reason for his discharge–yet another safety violation–was a mere cover-up (or pretext) for an unlawful motive.  Importantly, the court rejected Peterson's argument that Exide had failed to follow its own progressive discipline policy.  The court noted that Exide's progressive discipline policy was discretionary rather than mandatory, and it did not prevent Exide from considering past disciplinary actions, even if they were dated.

Peterson also claimed the incident giving rise to his termination was minor, and that he was not at fault for the accident.  Again, however, the court rejected his arguments, reasoning that Exide could legitimately rely on the final accident given Peterson's record of unsafe work performance.  Thus, even though Peterson was terminated while on FMLA leave, his claims were dismissed.  There are several important lessons from this case, including:

1.     Document performance and behavior issues as they occur.

2.     Review your employment policies to ensure they do not create mandatory language with respect to progressive discipline, or any other language that might limit your right to terminate an employee.

3.     It is possible to discharge employees while on FMLA leave, but be cautious when doing so.  Such a decision has a heightened possibility of leading to litigation.  Even if, as in this case, you can successfully defend the case, consider whether there is another approach that might allow you to avoid litigation altogether.