Last month’s blog about the employer-employee Facebook saga scored one for employees, but the latest installment gives the edge to employers.  A recent case heard in a Georgia federal appeals court ruled that employees can be fired over their social-networking photos.

Tiffany Marshall, a Savannah probationary firefighter, lost her job over her Myspace photos.  These images featured Marshall and her coworkers in uniform, as well as several semi-clothed photos of Marshall, including one showing her bare backside.  An anonymous caller alerted Marshall’s supervisors to the photos.  Investigation found that Marshall had violated multiple Savannah Fire Department rules and regulations, particularly the section on displaying “unbecoming conduct” in her private life that discredited the department.  In response to the photos, the department gave Marshall a verbal reprimand and issued a general order reminding employees that department photos could not be used on personal websites without the fire chief’s express permission.

Marshall’s response to the reprimand led to her termination.  After she allegedly became defensive and combative, contending she’d been singled out as a female because male firefighters had not been disciplined for similar photos on their websites, she was fired for insubordination.  Marshall then sued for gender discrimination.  The court, which found no evidence of discrimination or violation of First Amendment free speech rights, dismissed her case.

What does this decision mean for employers?  A solid social media policy may be enforceable in court.  To be effective, the policy should clearly address work-related images and social postings, and disclose the employer’s right to review such media for compliance with employer regulations.  While drafting a policy, employers should remember that the National Labor Relations Act protects employees’ rights to discuss workplace activities.  Bottom line: employees’ social networking posts can’t be silenced, but can be guided by a carefully worded social media policy.

No, it’s not the latest Patricia Cornwell novel—it’s a recent court ruling on an FMLA-related lawsuit.  The ruling held that even employees on FMLA leave are required to give proper notice and to follow their employer’s call-in policies.

In 2008, Jordan To brought suit against his former employer, U.S. Bank, for violating his rights by terminating him during FMLA leave.  After months of military leave, To failed to return to his clerk job as scheduled on August 4, 2008.  He spoke to his U.S. Bank supervisors via conference call and explained he wasn’t feeling well and needed time to recuperate.  To’s supervisors asked for a doctor’s note to return to work, which To provided.  One week later, when To failed to report for work as expected, he spoke to his supervisor and sent another doctor’s note.  A week after that, To not only failed to report for work, but did not notify anyone at U.S. Bank for four days.  On the third day, U.S. Bank sent a termination letter to To, citing job abandonment.  Upon receiving the letter, To claimed a third doctor’s note had been faxed to excuse the current absence—a note U.S. Bank did not receive and a note To could not produce.  Given the status of the missing note, U.S. Bank upheld To’s termination.  To sued.

Is this a case of wrongful termination under FMLA law?

The answer lies in U.S. Bank’s employment policies at the time of To’s absence.  As explained in the “Reporting Absences” provision of its employee handbook, U.S. Bank’s call-in policy stated that absence requests must be reported as soon as the employee becomes aware of such a need—that is, the employee provides reasonable notice.  The policy also stated that all absences must be reported by speaking directly to the employee’s supervisor, not through voicemail or e-mail.  The handbook also contained a “Job Abandonment” provision, which stated that after two consecutive days, an unreported absence would be considered voluntary job abandonment.  Both provisions specifically included FMLA absences under their umbrellas.

Giving To the benefit of the doubt, assume U.S. Bank legitimately failed to receive his faxed doctor’s note.  In that case, the note should have satisfied the “reasonable notice” requirement of U.S. Bank’s absence-reporting policy.  But note or no note, To violated the “call-in” requirement when he failed to directly notify his supervisor.  The FMLA angle of his case had no bearing, because FMLA absence requests are legally expected to follow employer policy on standard absence requests.  Clearly, To did not comply with his employer’s call-in policy.  The court thought so, too—it ruled against To and upheld his termination.

So far, you’ve learned when to update your business’ employee handbook and how to avoid potential handbook horrors.  In our third and final entry into our employee handbook series, you’ll find out key points to include in any effective handbook.

When properly prepared, the employee handbook should be a critical communication tool between your business and its employees.  Your handbook should explain your business’ expectations from its employees and establish what your employees can expect from the business.  This information should be presented in a clear and easy-to-understand fashion.

Here are ten essential items that should be included in every employee handbook:

1. A form acknowledging the employee’s receipt of the handbook
2. A disclaimer reserving the employer’s right to change the handbook’s content in the future
3. The organization’s mission statement
4. Recruitment practices, including how open positions are posted and filled
5. Salary administration practices, including merit increases and performance reviews
6. Computer and Internet use policy
7. Employee code of conduct
8. Absence policy, including maternity leave, bereavement leave, and jury duty
9. Complaint and grievance procedures
10. Guidelines for employment termination

Now that you know when to update your business’ employee handbook, this second entry into our three-part employee handbook series will teach you how to avoid small verbiage that can lead to big business bothers.

The employee handbook is your tool to distribute company policy in plain and simple English—so be careful to avoid commitments you don’t want to honor in the future.  To maximize understanding and minimize potential litigation, an effective employee handbook should be:

1. Easy to read – Remember the plain and simple English?  The handbook should be written in language easy for everyone to understand.  The handbook is not the place to show off your high-scoring Scrabble words.
2. Carefully worded – Don’t use wording that creates an employment contract.  Never promise to terminate employees for “good cause,” because good cause is subjective and will most likely be decided by a court!
3. Regularly updated – The handbook should contain a disclaimer stating that management reserves the right to periodically update the contents.
4. Consistent – To avoid potential misinterpretation, the handbook should be consistent within and between all sections.  Maintain a list of related policy items, where if one item changes, they all must be changed.
5. Realistic – Set only realistic promises and achievable goals.  Your employees are only human!
6. Appropriately detailed – Including too many fine details can come back to bite you.  For example, when it comes to performance reviews, it’s best to stay away from rigid statements like, “Performance reviews will be given annually.”  Such statements can lead to potential litigation troubles if not strictly followed.  Instead, indicate reviews will generally be conducted on an annual basis but may be given more or less frequently, as needed.
7. Fun – The last thing a new employee wants to do is trudge through 86 pages of dry reading.  Your handbook should be technically correct, but it can still be fun!  Try to incorporate a theme or fun graphics to make the entice employees to read.
8. Digital – Gone are the days of expensive, hardback handbooks better served as paperweights.  Distributing read-only electronic copies makes the handbook easier (and cheaper) to access and update, and means employees will never use their handbook as a doorstop.

If your employee handbook was last updated in the age of high hair and parachute pants, it lacks key legislative changes such as the Americans With Disabilities Act, the Family and Medical Leave Act, and the Polygraph Protection Act.  Relying on an out-of-date handbook is a surefire way to invite litigation!

Your HR team should continually review the handbook for necessary updates.  Employment law is constantly changing, so your HR team should check new laws against your employee handbook’s policies.  Your HR team should also confirm handbook policies match actual practices.  The last thing anyone wants is to be cornered by an employee armed with a handbook offering six weeks’ vacation, when current company policy only offers four.

Having an up-to-date handbook provides many benefits beyond avoiding uncomfortable confrontations.  Not only does the handbook provide guidance to employees and supervisors, but it also establishes consistent policies important to risk management.  Consistent policies also ensure a more harmonious work environment, since everyone knows what to expect.

If it’s time to update your employee handbook, consider the following steps:

1. Regularly review the handbook to ensure the most current policies.
2. Have an attorney review the handbook at each phase.
3. Implement a plan to address policy updates and how to communicate them to everyone in the business.
4. Train management staff to consistently follow handbook policy.
5. Record all updates and changes in a log.

Check back soon for Parts Two and Three of our Employee Handbook series!

A growing number of companies are choosing to incorporate human resources outsourcing into their business model. However, to be successful it takes professionals who are capable of implementing successful HR outsourcing strategies:

Top 5 HR Outsourcing Strategies:

1.    Recruiting Qualified Employees – With the evolution of technology, finding experienced employees who have the skills required to make a business successful in today’s marketplace is an integral part of the hiring process. Human resources outsourcing provides professional recruitment services that will focus on connecting the most qualified employees with the right employers. By utilizing the services of an HRO, PEO or ASO, companies gain access to a diverse workforce with a wide variety of expertise and skill sets. Bad hiring practices are a common mistake companies are finding very costly, resulting in substantial losses to their production and deeply impacting their bottom line.

2. Superior Training Techniques – Adequately training a workforce is time consuming and can drain a company’s resources without the critical input of human resources experts to establish well organized and successful training techniques. When neglecting to sufficiently train employees job performance and employee retention suffer and will ultimately reflect a company’s profits as well as their credibility. Training and development requires a company to be proactive. Relying on professional HR management for guidance and structure has proven to be vital for any business model.

3.  Employee Relations – Maintaining employees is complex and involves clear-cut policies that need to continually be communicated. Employee benefits, an employee handbook and employee/labor relations are all important business practices that are designed to cultivate a working relationship between business owners and employees. Avoiding potential problems and litigation is a critical aspect of HR that is significantly facilitated by a professional employer organization.

4. Observance of Government Regulations – Companies who do not comply with the mounting amount of changing local, state and federal regulations are subject to huge fines and must pay thousands of dollars per employee to comply.  While compliance is costly the penalties for not complying is more expensive. Keeping organizations up-to-date with these regulations takes the support of HR consulting services that specialize in government compliance.

5.   Employee Incentives – The key element to effective employee relations is to reinforce an employee’s value on a continual basis. Companies must motivate their employees to retain them. A management system designed to improve retention and employee/labor relations will reward the employee for their hard work and boosting job performance and output.