August, 2008

Can September Really Be Here...?

It really is that time again! It may be bittersweet, but there is something refreshing about September. Even though our lazy days of summer and vacations are ending, September often brings with it new energy for getting back into planned routines and endeavors.

September is also, in many businesess, when you start to plan for year end changes. Our newsletter this month will offer you some guidance for when your planning develops into the hiring and termination of employees.

Let's begin with a short article on terminations with non-competition agreements. California no longer allows this practice except under specific criteria as detailed in the article.

Go Ahead, Compete – Confirmed!

The California Supreme Court confirmed that non-competition agreements are unenforceable in California. Agreements that restrict an employee's ability to pursue similar employment after leaving a job are prohibited, even if narrowly written and leave a substantial portion of the available employment market open to the employee.

Unless a non-competition agreement clearly falls under one of the following exceptions, it will be unenforceable in California: Trade secrets protections, which can legally restrict an employee's ability to use confidential information or company-defined trade secrets.   Sale of a business, which can legally restrict a seller's ability to compete with the buyer in the geographic location where the seller had carried on his or her business.   Dissolution of a partnership, which can legally define a geographic area within which one of the partners cannot conduct a similar business.   The Court reiterated the law in California that non-competition agreements are against public policy because they restrict an individual's ability to earn a living.

Further, the Court found that requiring a former employee to get a release of an invalid agreement constitutes unlawful interference with the employee's rights. In addition, a waiver of "any and all" claims is not an illegal waiver of employee indemnification rights unless the waiver specifies that indemnification is being waived. Edwards v. Arthur Andersen LLP (August 7, 2008) 2008 Cal. LEXIS 9618.

What Should You Do? Do not restrict employees' ability to work after they leave your employment through non-competition clauses. If you have offices in other states, be sure to consult with legal counsel regarding how to handle non-competition policies for California employees as the law in this area differs by state.   Waivers should be narrowly tailored and specify what claims are being waived. © 2008 California Chamber of Commerce

Thank you for your replies to last month's "summer thinking" material on providing references. We discussed how to avoid liability when responding to a request to provide a reference for a former employee.

Your requests to address the opposite situation -- when the shoe is on the other foot -- when you request a reference for an applicant for a job in your company, were taken to heart. This month, our main article section includes two articles with some suggestions for getting references that will provide you with the information you want and need to make an informed decision. In addition, don't forget that investing in a background check is another tool to help make good hiring decisions.

As always, our main articles are found just a little bit further down on the page.

This Month's Quiz!
 
More input on what might cause a termination! Which of the following statements is true about sexual harassment?

Under the U.S. Supreme Court's standard, an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action (e.g., firing, failure to promote). Under the U.S. Supreme Court's standard, an employer is always liable for a supervisor's harassment.   In cases of harassment by one individual against another individual of the same gender, the harasser must be homosexual and must be motivated by sexual desire to be in violation of the law.

Answers found at the end of our main article.


Let's now go to our main articles with tips for obtaining the references you need ....

Please Provide Three References
How candidates provide references may be a good indication of certain skills.

Think of this: asking for references may be the first assignment you give to a potential employee. The references provided and the manner in which they are provided is important.

Here are some things to consider, as the candidate follows through on your request for references:

• Did they choose references that make sense?
  This is a demonstration of the candidate's common sense and judgment.
   
  
• Did they provide accurate information?
  This is a demonstration of their attention to detail and respect for time management.
   
  
• Are the references aware they will be called?
   
  
• Did the candidate ask for permission to use the reference?
  This is a demonstration of their professional courtesy and team working skills.
   
  
• Are they prompt?
  This is a demonstration of their reliability.

The manner in which candidates handle their references is critical. The candidate should do whatever they can to make it easy for you to hire them. They should not be wasting your time with incorrect data or a referee who is not motivated or aware of providing a reference.

Your request is important. The candidate's response should reflect that.

(c) JUST Checking Resources Inc.

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Obstacles, Road Blocks, Land Mines, and Dead Ends: How Not to Check References
 
So, let's say you're already convinced that reference checking is essential and you're chomping at the bit to get started. Well, there are a few more things to consider before diving in. Ironically, even as the vital importance of checking references for ... positions has intensified in recent years, legal constraints have made the process more difficult.

However, it is still possible to work around some of the constraints that may limit the breadth of your conversations with applicants' references.

Use these guidelines to help you overcome common obstacles and decipher both spoken and unspoken cues:

• Talk to an Operations Manager
  Whenever possible, try to speak with a manager who directly supervised the candidate when you are checking references. Other managers and administrators (including the HR Department) will be more likely to stick to impartial confirmations of dates of employment when asked for a reference. You'll be able to learn more from the subtext of the conversation with a direct supervisor - listen for pregnant pauses, hesitation, or, most ominously, bitterness or hostility.
   
  
  
• Personal References? Don't Even Bother Except
  ... in very unique circumstances, you should make a practice of requiring that all references are past employers. If your potential hire has never before been employed, chat with someone who has worked with her in a volunteer or extracurricular capacity. Talking to friends or family members isn't even worth the time it takes to dial the phone; there's almost no chance that you will be able to get objective feedback from them.
   
  
• Essay Questions, Not Multiple Choice
  If you've made a connection with a reference who is willing to talk with you, make the most of your good fortune by asking open-ended questions that call for in-depth answers. Within reason, give the reference ample opportunity to answer as comprehensively as they are willing to. You'll not only get the benefit of more information, but you'll also have more time to interpret the subtext of their remarks.

Companies need to manage the risk of hiring now more than they have ever done before. Employers have a duty to hire with care and diligence. When hiring, the impact an individual will have on production, culture and corporate integrity is an integral factor. A reference based on actual results and demonstrated performance is an excellent practice in managing risk and determining future results.

(c) ©1998-2008 Hcareers - All Rights Reserved.

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Answers To This Month's Quiz:
#1 is Correct.
Under the U.S. Supreme Court's standard, an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action (e.g., firing, failure to promote).

Explanation: The U.S. Supreme Court has established a standard for determining supervisor liability in cases of sexual harassment ( National R.R. Passenger Corp. v. Morgan , 122 S.Ct. 2061 (2002)). Under the Court's standard, an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action (e.g., firing, failure to promote). If no tangible employment action results, the employer might be able to avoid liability or limit damages by establishing an affirmative defense, composed of two necessary elements: That it exercised reasonable care to prevent and correct promptly any harassing behavior. That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Although acts of sexual harassment must be grounded in discrimination that is based on sex, the sex of the offender and victim is not controlling. Sexual harassment of a member of the same sex also violates Title VII's prohibition against discrimination based on sex ( Oncale v. Sundowner Offshore Services, Inc. , 118 S.Ct. 998 (1998)). The harasser need not be homosexual and need not be motivated by sexual desire to be in violation of the law. (c) hr.blr

California employers are reminded that if you employ 50 or more, you are required to provide 2 hours of Sexual Harassment Prevention training every 2 years.

MJ Management Solutions is ready to present this training either in person or via webinar. Call us to schedule your training.

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ABOUT MJMS, INC.

President and Principal Consultant: Margaret Jacoby, PHR

Margaret Jacoby has more than 25 years of Human Resources and professional management experience in a variety of industries. She has designed human resources infrastructure and implemented systems to ensure compliance with state and federal employment laws. She has directed high quality human resources functions for small and emerging businesses, and served as an external consultant to a wide range of diverse organizations, including non-profits.
 
Her work has included: 

• Conducting H.R. Needs Assessments
• Drafting employee handbooks and policy manuals
• Conducting job analysis and developing position descriptions
• Conducting on-site compliance audits
• Counseling management on progressive discipline
  
• Drafting and review of employee disciplinary actions
• Providing mediation in employee/employee conflict
  
• Training employees/supervisors/managers in the implementation of human resources systems and policies such as Sexual Harassment
• Conducting workshops for business owners on H.R. compliance issues.

 
Ms. Jacoby has earned the nationally-recognized certification of Professional in Human Resources (PHR) from the HR Certification Institute, Society for Human Resource Management (SHRM).
 
Ms. Jacoby's professional affiliations include:

• Professionals in Human Resources Association (PIHRA)
• Society for Human Resource Management (SHRM)
• National Association of Women Business Owners (NAWBO), Los Angeles and Phoenix
• California Chamber of Commerce


• Arizona Small Business Association (ASBA)
• Long Beach Community Business Network (LBCBN)
• Institute for Management Consultants (IMC)