After twenty-five years' observation, I can give it as the condensed history of most, if not all, good lawyers, that they lived well and died poor. -- Daniel Webster
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Hiring, in many cases, begins with a job application. Many of the questions found on traditional applications for employment have become sources of discrimination suits. A non-discriminatory job application should not contain questions about the following:
* Race, age, sex, religion, and national origin. An employer may ask if an applicant is 18 years of age or older and has a legal right to work in this country either through citizenship or status as a resident alien.
* Marital status, maiden name, number, names, and ages of children or other dependents.
* Employment of the spouse and child-care arrangements unless such queries are made of both male and female applicants.
* A woman's pregnancy or related condition.
* Arrest records which did not result in convictions. It is permissible to inquire about convictions or pending felony charges.
* The existence, nature or severity of a disability. An employer ask about an applicant' ability to perform specific job functions.
* An applicant's height and weight, except in specific professions such as law enforcement, when valid guidelines have been established for various national organizations.
* Organizational affiliations except those pertaining to professional memberships related to the specific job.
* Military history unless the job requires such a background.
* Status as a high school graduate. It is permissible to request the applicant to supply the details of his or her educational history.
* Lowest salary acceptable for a specific position.
An interview can often be more litigiously threatening than the employment application, because uninformed interviewers often ask seemingly harmless questions which may, in fact, be discriminatory. An interviewer may casually ask a 32-year-old female applicant if she anticipates having a family. If she responds affirmatively and subsequently is not hired, she could file suit for discriminatory hiring practices. Experts say the general rule of thumb is: if a question does not have anything to do with the job, or is not vital to determining the applicant's ability to perform the responsibilities associated with the job, do not ask it.
Losing a valued employee is disconcerting. Discovering that the individual has defected to a competitor and has taken proprietary information with him or her is shocking and infuriating. Considerable damage can result when an employee takes invaluable company information such as proposed new product lines or strategic planning, and ultimately gives the competition an unfair advantage. Small and large businesses alike are faced with the problem of reducing the risk of losing more than an employee.
One commonly adopted solution is requiring a new hiree to sign a non- compete agreement. Such a document is an agreement between the employer and employee stating that, should the employee choose to leave the company, he or she will not go to work for a competitor for a specified period of time, frequently two years.
A non-compete document is particularly useful for employees who have access to critical information, either thrugh job responsibility or through social interactions with owners or high-level executives. While the signed agreement does not provide fool-proof protection against such disruption, it deters this type of action by forcing the employee to reconsider the temptations. A signed document is an excellent reminder of one's responsibility.
A standard non-compete agreement might read this way:
"Employee agrees as a condition of employment that, in the event of termination for any reason, he/she will not engage in a similar or competitive business for a period of two years, nor will he/she contact or solicit any customer with whom Employer conducted business during his/her employment. This restrictive covenant shall be for a term of two years from termination, and shall encompass an area within a 50-mile radius of Employer's place of business."
Additional clauses might specify the protections desired by an individual business.
"Employee agrees that Employer's customer lists, processes, manufacturing techniques, sales materials, and pricing information constitute the sole and exclusive property of Employer, and that same are "trade secrets" under the law. Employee promises that under no circumstances shall he/she disclose same, during or after the term hereof, and upon violation of this provision Employee agrees that Employer shall be entitled to an injunction, compensatory and punitive damages, and reimbursement for its counsel fee."
Source: What Every Executive Better Know About the Law
It is important to note that non-compete agreements may be illegal in Montana, Nevada, North Dakota, and Oklahoma. Such agreements may be invalid or limited in Colorado, Florida, Hawaii, Louisiana, Oregon, South Dakota, and Wisconsin. While there is no federal law regarding non-compete agreements, employers should consult state regulations before using such a contract.
Work for Hire
If executive Ralph hires engineer Susan to create a super gizmo, who owns the rights to the super gizmo? If Susan tinkers in the company laboratory and develops a super widget, who owns the rights to her invention? Suppose, however, that Susan develops the super widget at home using all her own materials. Does Ralph have any rights and ownership to the super widget?
Law journals are full of cases in which employees and employers waged legal battles about the rights to inventions developed by the employee. According to experts, common law provides that the employer may assume title for those inventions developed within the scope of the individual's employment, particularly if "inventing" was included in the job description. In the absence of a contract, ownership of an invention which is outside the scope of the inventor's employment belongs to the inventor, but the employer is given "shop right," or the license to use the invention without paying royalties. If te invention was developed without the employer's resources and is outside the realm of the employer's business, the employer has no rights whatsoever to the employee's invention.
To avoid such disputes and the resulting litigation, the "work for hire" clause was introduced into employment contracts. Such agreements supersede the common law and clear up the misunderstandings regarding the exact nature of the employee's work responsibilities.
A "work for hire" clause entitles the employer to take ownership of all ideas, inventions and discoveries made by the employee as a condition of employment. It is not uncommon to include a clause in the contract which states that employees agree to sell for the sum of $1.00 any inventions, ideas and/or improvements developed during the term of employment which relate to products, methods, designs, and equipment used by the company or any of its subsidiaries. The following is an example of a "work for hire" clause.
_______________, hereby certifies that (the "Work" ) was specially commissioned by and is to be considered a "work made for hire" under the Copyright Act of 1976, as amended, for _________ ( "Company" ), and that company is entitled to the copyright thereto.
Without limiting the foregoing, for good and valuable consideration, receipt of which is hereby acknowledged, the undersigned hereby assigns and transfers to the Company, its successors and assigns, absolutely and forever, all right, title and interest, throughout the world in and to the Work and each element thereof, including but not limited to the copyright therein, for the full term of such copyright, and any and all renewals or extensions thereof, in each country of the world, together with any and all present or future claims and causes of action against third parties arising from or related to the Work and the copyrights therein, and the right to use and retain the proceeds relating to such claims and causes of action.
Improperly handled employee terminations generate a significant number of lawsuits against corporations. Complete and accurate records of such actions protect the interests of both the employer and the former employee.
Firing generates stress for the employee being discharged, the individual who does the terminating and the employees who remain with the company. There are several concepts to consider before, during and after the discharge is completed which can significantly affect the attitudes and reactions of all involved as well as the vulnerability of the employer.
Before Firing an Employee
* Be sure the action is approved by top management and conforms to written company policy. Corporate legal advice may be sought regarding severance conditions for higher level employees.
* Except in a for-cause dismissal, an employee is entitled to a documented, concise explanation of the reasons for his or her dismissal. Plan the interview carefully to anticipate responses and diffuse reactions.
* Federal law requires a 60-day advance notification of employees affected by layoffs and plant or office closings. Prematurely early notification may significantly affect production and possibly invite undesirable reactions.
* Consider the possibility of an irrational response by a dismissed employee. Take the necessary precautions to change security codes, access codes to computers and entry to the corporate premises.
Handling a Termination
* Be honest and completely clear about the reasons for discharge. Avoid personal statements which might degrade or humiliate the individual, or vague statements which might suggest that the situation is reversible.
* It is sometimes helpful to have another individual, such as a professional from human resources, present as a witness and a support for the employee, particularly if emotional reactions are anticipated.
* Present a precise explanation of severance pay procedures, benefits continuation forms, pension or profit-sharing payouts and other available assistance, such as outplacement counseling. In larger corporations, the human resources department handles the filling out of the necessary forms and documents.
* Allow the individual to remove personal belongings at a low- visibility time, after hours or on a weekend. Prepare a checklist of company property that should be accountedfor, including keys, credit cards, ID cards, computer disks.
* Respond to all questions and discuss the cover story to be presented when future employers inquire about the individual. Be prepared with a version that is supportive of the employee but does not threaten the company's credibility.
After Firing an Employee
* Document the termination in writing immediately, detailing conversation, reactions and emotional tone of both parties. This is essential for response to any future challenge to the termination.
* Inform the staff or co-workers of the termination by word of mouth or by memo. In the case of for-cause termination, the incident should be mentioned only briefly, in a non-defamatory manner. If performance is the reason, experts suggest that simply stating that the employee and the organization have agreed to part company should suffice.
* In the case of staff reduction or layoffs, the remaining staff should be assured that downsizing was warranted and that no additional layoffs are anticipated at this time. (If additional reductions are expected, employees should be informed that such an action may be required, and that they will be informed on or before a specific date.)
* Invite employes who have additional questions and concerns to meet with specified representatives of the company privately.
* Inform clients or customers who deal with the discharged individual that the company will continue to serve their needs. When necessary, name a specific individual who will replace the terminated employee.
Right to Job Security
This right protects the employee from "termination at will" or the previously popular employer practice of discharging an individual for virtually any reason. Legislation, including Title VII of the Civil Rights Act of 1964 and more recent anti-discrimination laws, is being cited in courts around the country in disputes about employee rights.
Court rulings have determined that an employee cannot be fired for:
* Whistle blowing regarding employer policies or violations of laws;
* Complaints or testimony regarding violations of employee rights;
* Lawful union activities;
* Filing claims for workers' compensation;
* Filing charges of unfair labor practices;
* Reporting OSHA violations;
* Garnishment for indebtedness.
Justifiable terminations should be spelled out in an employee handbook or personnel manual. Some of these reasons include:
* Incompetence or failure to respond to training;
* Gross insbordination;
* Repeated unexcused absences or lateness;
* Sexual harassment;
* Verbal abuse;
* Physical violence;
* Falsification of records;
* Drunkenness on the job.
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