be lengthy; clear, concise provisions are best. All em- 

 ployees should have easy access to a copy of the hand- 

 book. To avoid dispute, avoid the contractual effect of 

 an employee handbook. It should include a disclaimer 

 which provides that the handbook is intended as a 

 guide to company policies and is not a contract. Even 

 with this disclaimer, employers shouldn't put anything 

 in an employee handbook that the company does not 

 intend to fulfill No handbook should be issued if top 

 management is lukewarm or equivocal about any of its 

 provisions. In order to assure that a handbook accom- 

 plishes its objectives — boosting morale and providing a 

 clear and consistent statement of the terms and condi- 

 tions of the employment relationship — management 

 must support its provisions in all respects. 



Misclassification of Employees 

 as Overtime Extempt 



Suggestion: Be certain that your employees are properly 

 classified as salaried or hourly wage-earners and 

 whether they are eligible for overtime. 



The Fair Labor Standards Act (FLSA), a federal wage 

 and hour law which applies to most employers, requires 

 covered employers to pay employees, unless they are 

 exempt under provisions discussed below, one-and- 

 one-half (I 1/2) times their regular wage for each hour 

 over 40 worked each work week. Employees who are 

 exempt from the overtime requirements of the FSLA 

 are outside sales representatives, independent contrac- 

 tors, and executive, administrative, and professional 

 employees. All others (with some narrow exceptions) 

 must be paid overtime. Employers should not be lib- 

 eral in the application of the exempt classification, be- 

 cause the Department of Labor is not and the cost of 

 accrued overtime and penalties can be severe. 



Based on experience in our practice, it appears that 

 many employers are incorrectly applying the exemp- 

 tions under the FLSA. That is, many nonexempt em- 

 ployees are paid on a salary basis and given no addi- 

 tional compensation for overtime, in some instances, 

 nonexempt employees are paid on an hourly basis with 

 no premium for overtime work. It is critical that all em- 

 ployees be properly classified as exempt and nonex- 

 empt so that provisions can be made to pay the nonex- 

 empt employees an overtime premium. 



The many exemptions to the FLSA's overtime re- 

 quirements include an exemption for certain agricultural 

 workers. However, this and other exemptions are nar- 

 rowly defined and construed. Companies should consult 

 with legal counsel to check all proposed exemptions. 



Failure to Promote Anti-discrimination Policies 



Suggestion. Adopt and implement a policy against illegal 

 discrimination in the workplace. 



State and federal laws prohibit employment discrimina- 

 tion on the basis of race, age, national origin, religion, 

 gender, marital status and disability. Employers who 



are covered by these statutes and are found respon- 

 sible for acts of illegal discrimination may be subject to 

 substantial damage awards. 



One of the most dangerous forms of liability for em- 

 ployers today is a charge of sexual harassment Unlaw- 

 ful sexual harassment under both state and federal law 

 includes not only sexual advances and requests for 

 sexual favors in exchange for job benefits, but also 

 other conduct (including verbal) of a sexual nature 

 which interferes with an employee's work performance 

 or creates an intimidating, hostile, or offensive environ- 

 ment. While sexually-oriented joking and flirting may be 

 acceptable to some employees, other employees may find 

 it intimidating and offensive. In this sense, sexual harass- 

 ment is very much a subjective offense; that is, certain 

 conduct may or may not be sexual harassment depending 

 upon how it is interpreted by each employee. Accordingly, 

 it is important to take all appropriate steps to reduce or 

 eliminate the likelihood that sexual harassment will occur. 



If you have not already done so, you should immedi- 

 ately adopt a policy against sexual harassment. How- 

 ever, it is important that the issuance of this policy not 

 be simply a mechanical gesture. Communicate to all 

 employees, particularly members of management, that 

 sexual harassment of any type will not be tolerated and 

 that the company will take most seriously any com- 

 plaints of sexual harassment in the workplace. 



Failure to Respond to Complaints 

 of Discrimination 



Suggestion. Maintain a workable complaint procedure and 

 promptly investigate all claims of discrimination. 



All complaints of illegal discrimination in the workplace 

 should be promptly investigated and appropriate action 

 taken. All sides of the matter should have an opportu- 

 nity to state their position, but in the end, management 

 must decide whether or not the discrimination occurred 

 and, if so, how it should be treated. Certain forms of 

 discrimination should lead to the discharge of the per- 

 petrator. Others may deserve less serious responses. 



It is important to allow employees a few avenues for 

 lodging complaints of discrimination. If your policy re- 

 quires the employee to file such a complaint first with 

 his or her supervisor, this may lead to problems if that 

 supervisor is the alleged perpetrator. Accordingly, your 

 policy should allow complaints to be lodged at two or 

 more different points in the management structure. 



Saying Too Little: Failure to Notify Employees 

 of Problems and/or Not Giving the Real 

 Reason for Adverse Employment Decisions 



Suggestion. Require that management inform employees 

 of performance problems and provide the real reason 

 for management actions. 



Supervisors and other members of management should 

 be required to communicate to employees and docu- 

 ment in the file any instances or patterns of unsatisfac- 



JUNE & |ULY 1997 



