Category Archives: Employment Practices

The Perfect Compromise: Bridging the Gap between At-Will Employment and Just Cause

Source: Nicole B. Porter, Nebraska Law Review, (Forthcoming)

From the abstract:
Many scholars have criticized the harshness of the employment at-will presumption, which allows an employer to terminate an employee for good reason, bad reason, or no reason at all. Other scholars defend at-will employment and criticize the just cause standard. This Article does not take sides in this debate; but instead, attempts to bridge the gap between the two by proposing a compromise statute, which I call the Employment Termination Equity Act (ETEA). Under ETEA, employers would remain free to terminate without having the difficult burden of proving just cause. However, certain enumerated reasons for termination would be unlawful. In determining which termination decisions should warrant protection, my goal was two-fold: (1) to make unlawful egregious termination decisions that have previously been unremedied despite the many exceptions to at-will employment and (2) to provide some overlap protection with current employment statutes by using a procedural process that will be more easily accessible by employees. Yet, in the spirit of true compromise, ETEA will provide fewer types of remedies than other employment statutes or common law claims, and will force plaintiffs to choose between suit under this proposed termination statute and other statutory remedies. As with any compromise, lines had to be drawn and line-drawing never satisfies everyone. My goal in this article is to convince the reader to view my line drawing optimistically – as a necessary means of bridging the gap between at-will employment and just cause.

Independent Contractors: A Thing of the Past, or Just a More Cautious Future?

Source: Ari Karen, Employee Benefit Plan Review, June 2008

… Now, a perfect storm of political change, increased union pressure, and aggressive government enforcement has developed. Premised on flawed assumptions that businesses force the contractor classification onto workers to pay lower wages, avoid benefits, and hire undocumented workers, a sustained “grass-roots” movement opposing business’ use of contractors is dictating federal and state policies. State legislatures in New York, Illinois, Texas, Oklahoma, New Jersey, Connecticut, Massachusetts, California, Michigan, Georgia, and other states have passed tougher standards for evaluating the independent contractor classification, and/or developed coordinated inter-governmental enforcement task forces. Numerous jurisdictions have initiated crackdowns against certain industries and passed or proposed legislation holding businesses and owners civilly and criminally responsible for misclassifying workers. Recent studies by the U.S. Government Accountability Office showing that millions of dollars in tax payments to state and local governments are being lost annually as a result of misclassification will only further fuel this trend.

Outbound Email and Data Loss Prevention in Today’s Enterprise, 2008

Source: Proofpoint, May 2008

From the press release:
In its fifth-annual study of outbound email and data loss prevention issues, Proofpoint, Inc. found that large enterprises continue to incur risk from–and take action against–information leaks over outbound email, as well as newer communications media such as blogs, message boards, media sharing sites and mobile devices.

41% of Large U.S. Corporations Employ Staff to Read Employee Email; 26% Terminated Employees for Email Policy Violations in the Past Year

11% Of U.S. Companies Disciplined Employees for Improper Use of Blogs/Message Boards; 13% for Social Network Violations; 14% for Improper Use of Media Sharing Sites

E-Mail Policies of the 50 States: A Content Analysis

Source: Shamima Ahmed, Public Personnel Management, Spring 2008

E-mail has become one of the most common means of office communication. It has also become a risky and potentially costly mode of communication. A well-written e-mail policy is a major safeguard for employers against the intentional and unintentional abuse of office e-mail privileges. A growing body of literature offers suggestions on the essential components of an e-mail policy. In this article, the author compares the 50 states’ e-mail policies with these components to assess their adequacy. Only two states’ e-mail policies have 10 of the 11 components. Furthermore, none of the states’ policies clarify the grievance process for e-mail policy violations.

Human Resources Flexibilities and Authorities in the Federal Government

Source: Office of Personnel Management, January 2008

From the summary:
This page includes the updated and expanded Handbook titled, Human Resources Flexibilities and Authorities in the Federal Government. The Handbook is a practical guide to the options available in current law to help you recruit and hire a diverse and high performing workforce, set a strategic direction through workforce planning and organizational realignment, and unleash the potential of your organization. OPM encourages you to use these existing flexibilities to strategically align your human resources management systems with your mission. You may be surprised to discover how flexible title 5 is in meeting your organizational needs.

Navigating Pennsylvania’s Dynamic Workforce: Succession Planning in a Complex Environment

Source: Kimberly A. Helton and Robert D. Jackson, Public Personnel Management, Vol. 36 no. 4, Winter, 2007
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Through its workforce and succession planning efforts, Pennsylvania is committed to proactively indentifying, preparing for and maintaining pools of well-trained and motivated state government employees to assume critical positions of leadership. But the concept of leadership extends beyond senior-level positions within agencies. The goal in Pennsylvania is to improve leadership capabilities in every work unit and to encourage all employees to use their skills to build stronger teams. Leadership at all levels means equipping employees with the tools, skills and expectations to communicate effectively and foster leadership at every organizational level. Leadership at all levels ensures that no lack of business continuity results from staff departures such as retirements, resignations, promotions or reassignments or other situations in which an individual is unable to or unwilling to continue his or her role within an organization.

Alternative Employment Practices: A Call to Arms

Source: Joel P. Rudin and Kathryn L. Gover, Labor Law Journal, Vol. 58 no. 1, Spring 2007

In this article, we first discuss the unstructured interview, which is the most common hiring technique. Cognitive ability tests provide a demonstrably better alternative causing less disparate impact. Then we turn to informal mentoring, the most common promotion technique. Assessment centers provide a demonstrably better alternative causing less disparate impact. There appears to be no basis in the law allowing employers with disparate impact, either in hiring through unstructured interviews or promotion through informal mentoring, to refuse to adopt these alternatives.