Creating and maintaining a knowledge management database to address employment issues
It should be the responsibility of the well-informed, proactive counsel to keep the business client updated on any changes in the law.
Employers encounter a myriad of challenges in managing the expectations, rights, and roles of employees while maintaining productive and efficient operations. These issues coupled with unpredictability regarding the economy, the recent advent of flexible working arrangements, and the frequency upon which employment laws change, require legal advice to be expedient, and often, multijurisdictional.
In order to meet these challenges, it is essential for firms within the middle market providing guidance to clients on employment law issues to proactively establish, maintain, and consistently update a database devoted to knowledge management (KM). The KM database should identify guidance as well as forms—which are routinely updated and refined—in order to maximize efficiency, ensure that advice complies with current law and to provide cost-efficient support to clients.
An overview of an efficient and organized KM database is set forth in the subsequent sections. Tailoring KM; however, may be personalized by firm or clients:
Hiring Guidance and Documents. Within the guidance section, memoranda should include the legal parameters for candidate questions through the interview and pre-hire screening process, the requirements for employee background checks and use of adverse information therein in the hiring decision, state-specific guidelines on any required term of duration of employment versus an at-will relationship, benefits including paid-time off and sick pay, and the classification of employees for overtime purposes including any applicable exemptions.
The form-exemplar section should include the main hiring documents: background check authorizations, offer letters, employment agreements, and independent contractor agreements, as well as contracts governing protection of the company’s confidential information and restrictive covenants (if not set forth in the foregoing main hiring documents): nondisclosure agreements, proprietary rights and restrictive covenants agreements.
Operational Policies and Handbooks. For businesses large and small, the importance of maintaining and updating a uniform set of company policies—typically via a handbook—is essential to ensuring the implementation of agreed upon standards, an informed workforce, and limiting exposure to potential claims. Key provisions within a handbook or maintained in standalone policies should include a company’s position as an equal opportunity employer with anti-harassment, anti-discrimination and accommodation policies, internal reporting structure, progressive discipline, remote work policies, and leave provisions.
Though human resources support organizations like the Society for Human Resource Management (SHRM) as well as professional employer organizations (PEO) offer products which provide handbook templates, most businesses will require further granularity based on industry standards including standards on employee benefits, which justify a customized approach to handbook drafting and modifications. Moreover, it should be the responsibility of the well-informed, proactive counsel to keep the business client updated on any changes in the law. Those changes should be maintained within this section of the KM database.
Separation Documents. Regarding the separation of employees, the termination of independent contractor engagements, and potential severance considerations, great care must be taken to ensure that the legal and/or contractual requirements for each separation are being observed, the company is being protected post-employment, and the impact of the separation does not trigger further legal obligations on the company.
For single-employee separations, a scrupulous employer should be aware of the terms of any written agreements or contracts with its employees being considered for termination, as well as the need to enforce existing restrictive covenants or bind the departing employee to protections such as confidentiality. Germane to employee separations on a larger scale, this section should include legal authority on the impact on any business unit or company division to prevent disparate impact under EEO standards, as well as potential coverage under the Worker Adjustment and Retraining Notification Act (WARN Act).
In accordance with protecting the business from claims of wrongful termination, the exemplar section should include exit interview lists, termination letters, separation and severance agreements, and WARN Act and mini-WARN Act (where applicable) notices to both employees and the State or governing authority.
Pre-litigation and Investigations. Within the rubric of knowledge management and daily client management is the investigative process inherent in any claim raised pre-litigation or in connection with a filing with an administrative agency. This section should follow the precedent set forth in the company’s reporting policies and internal investigation policies in the company handbook and include authority on the potential elements of any employee-based claim. The exemplar file should include witness statements, including declarations, affidavits, and sworn statements, demand letters and cease and desist communications.
Litigation. While it is anticipated that the organized attorney maintains a separate litigation file for every lawsuit, administrative proceeding, or arbitration, the KM file for litigation should include common filings like exemplar responses to EEOC Charges, Department of Labor demands, and state agency investigations. Further, any pertinent case law or statute which may affect policy standards should be saved within the Operational Policies section, as set forth above.
While it is incumbent upon the experienced employment attorney to create the KM database, it is equally essential that processes are in place within middle market firms to capture the knowledge and experience of all attorneys by maintaining and updating the database.
Therefore, providing access to colleagues and encouraging the use of the KM database including contributing to its content, will contribute to more efficiently and effectively representing clients.
Andrew B. Zelman, a shareholder, is a member of the dispute resolution team based in Berger Singerman’s Fort Lauderdale office. He represents businesses and individuals in a variety of complex commercial disputes, including intellectual property, class action, and general liability cases in both state and federal courts.
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