Law Sections

Some Guidelines for Navigating a Brave New World

In Defense of Employers

By Jennifer A. Rymarski

Every day, the news bombards us with articles about trends in business, including, but not limited to, the death of the organizational hierarchy, how to foster transparency, the fundamental differences between managing and leading, and in particular, Millennials: how to attract them, how to keep them, and why they are not being compensated enough. Some go so far as to harshly conclude why Baby Boomers and Gen-Xers hate them.

Jennifer A. Rymarski

Jennifer A. Rymarski

My summation is that, with every generational workforce, there are positives and negatives. Yet, the cultural shift that is upon us may feel like a tidal wave to many employers. Undeniably, people are living longer and working longer. A single organization can employ people ranging in age from their 20s to their 70s.

Companies need to innovate from both a mechanical and technical perspective as well as with their culture, and younger generations can help businesses usher in changes. However, businesses still need to be managed appropriately and must continue to operate reliably and dependably to deliver the products and services that generate the revenue needed to keep people employed with comparable benefit packages.

Millennials may be up and coming, but Baby Boomers and Gen-Xers still maintain the majority roles of management, hiring and firing. Employers need to be prepared for the new norms, such as:

• Analyzing if and how to staff your business with flex-time employees and how this may impact existing employees;

• Training and supervising;

• Managing incidents, grievances, discipline, and performance reviews;

• Deciding what benefits to offer and how to implement these benefits;

• Determining how to classify workers;

• Developing and maintaining leadership and team development across all cultures and generations;

• Updating and managing technology;

• Considering business outlooks and implementing change;

• Ensuring the business and its employment practices are in compliance with the law; and

• Mitigating risks and defending against contractual disputes, discrimination, and terminations.

Get It in Writing

Navigating all this can be challenging for all employers, regardless of size or industry. An employee handbook is a must for delineating a company’s expectations, policies, and practices. These handbooks outline the company’s mission statement and can address everything from dress codes and scents in the office to cell-phone and computer policies, vacation- and personal-time accrual, bereavement and other leave, and discipline policies.

While having a handbook is a great way to introduce an employee to the organization, management needs to also be aware of the policies therein and act consistently in accordance with it. This handbook should also be reviewed periodically to ensure it is current with changes in the law.

Another useful tip for employers is to have clearly defined job descriptions, both for advertising purposes and so the prospective employee has a clear definition of the duties and responsibilities of the job, including but not limited to hours, physical or travel demands, whom this individual will report to, and any benefits that may be available.

Establishing a firm training schedule and/or having a training manual can assist all employees (those newer and those more established). With all the new technology available and the demands of the consumer and business clientele, companies cannot continue to rely on the proverbial ‘way it was always done,’ and maintaining open communication about processes and projects on a daily, weekly, monthly, or quarterly basis will not only help the manager define expectations, but will give employees a sense of contribution to something larger than just their day-to-day job.

Benefit packages are typical, yet, given the diversity in the workplace, a one-size-fits-all model may no longer be relevant. Student debt, healthcare, fitness, daycare, and financial well-being are all considerations. The challenge for employers is not only the straight costs of these benefits and related perks, but how to measure the impact of the benefits on the lives of employees and the overall impact to company morale. Seeking the help of a financial advisor and evaluating multiple vendors for benefit packages are recommended. Soliciting feedback about how your employees feel about the organization’s culture can also be a useful and eye-opening exercise.

With respect to grievances and discipline, an established written process for dealing with grievances and investigations is recommended. Likewise, discipline policies — progressive or otherwise — should be well-defined and documented. Performance evaluations are best done on a continual and day-to-day basis, as opposed to stockpiling issues for a year-end review. Documentation and acknowledgement of issues contemporaneous with events is more useful from a legal perspective.

Career Defining

As to more technical legal issues, an organization needs to closely examine how it is classifying its workers — as an employee (who will receive a W-2) or an independent contractor (who will receive a 1099). There has been considerable scrutiny of independent contractors, and the law establishes a standard that presumes employee status and gives the employer an opportunity to rebut the presumption by examining whether the individual is free from the control and direction with the performance of the services, the service is performed outside the usual course of the business, and the individual is customarily engaged in an independently established trade or business of the same nature as that involved with the service performed.

Because of advances in technology, the trend appears to be for more flexible workers and freelancers. However, companies can and do unwittingly expose themselves by misclassifying workers and/or not properly paying wages in violation of the law. Staffing with flexible schedules or freelancers may also pose work-coverage issues, not to mention compensation issues and general frustrations for full-time employees.

Thus, the question of whether flex time can work for your organization and how it can be implemented need to be closely examined. Other legal issues include whether the employee is ‘at will’ or contracted. If an employment contract is necessary, employers need to be mindful of laws that impact contract provisions, such as non-competition, non-solicitation, contract renewal, and contract termination.

If a contract is drafted by the employer, it is construed against the drafter; therefore, having these contracts reviewed and prepared by legal counsel, as opposed to trying to utilize one that was used five years ago with the names changed, is risky. This is particularly important if the employee is exposed to confidential and proprietary information that the employer seeks to protect. Massachusetts recognizes an employer’s interest in protecting its legitimate business interests; however, any agreement containing restrictive covenants needs to be reasonable in scope, time, and geographic area.

In Compliance

When examining a company’s compliance with state and federal laws, employers need to be mindful of everything from the content of their employment application to accommodating workspaces, as well as ensuring there is no discrimination or harassment based on age, gender, sexual orientation, race, or disability. If a business is offering goods and services, it must also comply with laws ensuring access for the hearing- and sight-impaired.

One consideration for employers (including nonprofit entities who have volunteer boards) is for the company to purchase insurance that would cover employment-related matters. With employment-related litigation and jury verdicts on the rise, a policy of insurance may be a worthwhile investment.

The foregoing are just a few of the considerations from a legal perspective that can impact a business. While there are lawyers, organizations, and professional-services firms to help businesses structure and define these crucial aspects of an organization, satisfying the various generational divides that exist in organizations may pose a more amorphous challenge for company leadership. Addressing the legal and quasi-legal management issues on a thoughtful and prospective basis as opposed to a reactionary basis provides the best chance for success and better preparedness to defend against any legally related employment challenges.

Jennifer A. Rymarski is a civil-litigation attorney at Morrison Morrison, LLP who helps businesses navigate through employment-related matters; (413) 737-1131.