Red Hot Thoughts

Archive for the ‘Management’ Category

Employee Files

October 27th, 2014


One of the first things we do when beginning an HR Audit for one of our clients is request to see a sampling of their employees’ files.  Over the years, we’ve seen all sorts of things stuffed between the covers:  Pictures of an employee’s family taken at the company picnic, handwritten notes complaining about the obnoxious co-worker in the next cubicle, drug test results, and EOBs from a pregnant staff member’s last pre-natal visit.  Performance Reviews, undated and unsigned, are commonly crammed in between the I-9 form and requests for time off (again, either not dated or for leave that was denied ten years ago).  There are stringent guidelines for what goes into an employee file—and what should stay out!  Are your employee files in compliance?

Whether a business has one employee or 250 employees, business owners need to be concerned with the creation and maintenance of employee personnel files.  What types of information goes into an employee file? What doesn’t?

The first thing to remember is that you should only keep documents in an employee’s file that the employee is fully aware of; they have the right to access their file.  If it doesn’t apply to this rule, it probably has no business being there!

Items that can be considered as needed for employment-related decisions include an up to date record of the employee’s personal information.  It is important to keep these records current.  We advise our clients to remind their employees on a consistent basis to keep them informed if there are any changes in their address, phone number, or other personal information.  In addition to the employee’s current personal information, other documents which should normally be in the file include the employment application, current job description, performance evaluations, employment status change forms, compensation information, job related test results, benefit plan elections (but no health records), attendance and leave records and disciplinary actions.

However, not all documents related to employees should go into the main personnel files.  What needs to be filed elsewhere?  Because of federal and state guidelines concerning the confidentiality of health information, remember that all medical and other health related documents must be kept in a separate file.  I-9 immigration forms and EEOC information must also be kept separately in their own files away from the employee personnel records.  Also, garnishment information should be kept with your payroll records, not in employee files.  Please see our checklist on page three for further details of what items not to include in an employee’s record.

Employee files should be kept in a secure area where only those supervisors and managers who have a real ‘need to know’ are provided access.  Confidentiality should never be taken lightly, and it is vital to keep employee information in a safe place.

Many states have laws that dictate what access the employee can have to their files and for how long after their employ they can request copies of its contents.  Federal law provides employees the legal right to review records concerning employees’ exposure to toxic substances and any related medical records.


Typical items included in an Employee Personnel File:

Employee Personal Data Information including address, phone number, emergency information, date of birth, and social security number

Employment Application and resume

Academic Transcripts (if applicable)

Job-related test results

Benefit Plan elections

Time records

Attendance/leave records

Compensation information

Authorization for payroll deductions/withholding

Signed Job description(s)

Individual employment contract(s)

Acknowledgement and waiver forms

Education and training class records

License information if applicable to job

Signed Performance Evaluations

Awards and honors

Disciplinary actions or complaints


Items to keep separately, each in their own file:

Medical records

Drug and/or alcohol testing

FMLA notices

Accommodation requests

Workers’ compensation forms, reports, correspondence, and documents

Investigation notes files

I-9 forms

EEOC records

OSHA health and safety records

Exit interview information

Garnishment and child support payment information


October 14th, 2014


The Work Opportunity Tax Credit (WOTC) was first introduced by the Small Business Job Protection Act of 1996. Its intent was to provide employers with an incentive to reach out and hire employees from economically disadvantaged populations.  As the program demonstrated its success in increasing employer’s participation, there has been a succession of federal acts to keep this tax credit in existence.  In December of 2006, Congress passed the Tax Relief and Heath Care Act of 2006. The provision retroactively extended the WOTC through 2006. In 2007, the provision combined the Welfare-to-Work (WTW) tax credit with the WOTC and extended both through Dec. 31, 2007.

For an employer to benefit from the WOTC, it must determine whether its new hires come from one of the following groups:

• Qualified welfare recipients.

• Qualified food stamp recipients.

• Qualified Supplemental Security Income recipients.

• Qualified veterans.

• Qualified ex-felons.

• Vocational rehabilitation referrals.

• Qualified summer youth workers.

• High-risk youths.

• Eligible work incentive employees.

To help you determine whether a new hire is an individual from one of the targeted groups, the “Pre-Screening Notice and Certification Form for the Work Opportunity and Welfare-to-Work Credits,” the IRS Form 8850, must be completed on or before the date a job offer is made. Although the WOTC is a federal program, it is administered by each state, and some of the administrative processes may vary depending on the state.

If it is found that the new hire is from a targeted group, the employer may then need to send the form to the state WOTC coordinator within 28 days after the employee begins work. For employees who have been conditionally certified, the “Conditional Certification” form, ETA Form 9062, may need to be completed. For employees who have not been conditionally certified, the “Individual Characteristics Form,” ETA Form 9061, may need to be considered instead. Please check with the state WOTC coordinator for additional information and guidance.  The HR eBook will have a listing of all state coordinators to help you locate the state specific information you’ll need!

When the company files its taxes, it should complete the IRS Form 5884, (use the appropriate year when filing) to take the tax credits for the employees who qualify. The value of the tax credit is 40 percent of the first $6,000 of wages paid the first year to a certified employee who works at least 400 hours. For employees who work less than 400 hours but more than 120 hours, the tax credit is 25 percent of the first $6,000. For youth hired for summer work, the percentage is applied to the first $3000.

While filing federal forms might seem intimidating and time consuming, the effort can be well worth it.  It can add up to a real win—for your business and for your community!

Salary Compensation for non-exempt Employees

October 1st, 2014


While in a meeting last week, our client brought up a question regarding salary compensation for one of his non-exempt positions.  He had originally hired an employee to work for him on a temporary, trial basis so he could determine whether or not the individual was capable of performing the job.  While the individual was classified as a temporary employee, our client paid her $11.00 per hour.  He eventually decided that the individual was capable of performing the functions of the position and offered her a permanent position, which pays a monthly salary of $2,000.  However, our client stated that by definition, the position is a non-exempt (paid hourly) position.

Several weeks ago, on a Wednesday afternoon, the employee left work early in the afternoon.  It was the first of the month, and there was a lot of work she had not yet completed for the monthly reports that were due on the second.  She also did not show up to work the following Thursday and, although she claims to have called in to report her absence, our client was unable to find any record proving that she did.

While the employee was out of the office on Thursday, our client had to access her email inbox as he needed some valuable information for a project he was working on.  While viewing her email inbox, he found some valuable information he wasn’t even looking for.  He learned that the employee had been applying for other jobs, using company equipment and time to do so.

When she came to work on Friday, our client terminated her employment.  The employee was paid for the 6 hours she worked on the 1st in addition to her time worked between the 15th and 31st of the previous month.  Upon arriving home, the employee called our client stating that she should be paid for the entire first pay period of the current month since she was a salaried employee and not just the 6 hours she actually worked on the 1st.

Our client was not sure how to respond and asked for our clarification on what payment the employee truly was entitled to as a non-exempt, salaried employee.

Under federal law, when it comes to paying a non-exempt employee, employers must ensure that the employee is paid for all time worked, including time and one-half for all hours worked over 40 in a workweek, regardless of whether the employee is paid a salary or an hourly wage rate.

In this case, if our client had not been paying the employee overtime on all hours worked over 40 in a workweek, he may have inadvertently made her an exempt employee.  This is why we always caution our clients to pay non-exempt employees on an hourly basis instead of on a salary basis.

The law does not require employers to pay any non-exempt employee for time that he/she did not work. However, if the employee is exempt, she should be paid for a full 8 hours on the 1st instead of just the 6).  While our client had not been specifically tracking the employee’s hours worked per week, he was certain she has never been entitled to overtime as she worked approximately 6 hours per day, 5 days per week.

Our client confirmed that the terminated employee was indeed paid for all hours she worked, specifically the 6 hours that she worked on the 1st.  So, unless the employee had any accrued but unused paid time off for which she should have been paid for or if she is in fact exempt, we told our client that he does not owe the terminated employee any additional funds.

We also suggested before a replacement is hired, the position be moved to hourly pay and not salaried so there would be no confusion about the non-exempt status of the job.


Terminations & Employee Loyalties

September 24th, 2014


It is never easy to terminate an employee.  No matter how egregious their actions might be, firing someone is by far one of the hardest jobs of management.  You hired them with the best intentions.  You saw something in them that made you want to take the chance and offer them the job.  You wanted them to succeed.  They have not.  You must now admit defeat – not only to yourself and that employee, but to the rest of your employees as well.

It isn’t too hard to announce that Susie, who never was popular with the employees and was the center of many complaints, has left the company.  It is much harder when the employee in question, let’s call him Joe, was extremely popular with his coworkers.  What can you say to justify your decision?  Shouldn’t you be able to let them know the facts behind your decision to terminate Joe?  Why do you have to come out as the bad guy when it was Joe who was hurting the company?

Because you are the boss.

At red, we often must counsel our clients to take a deep breath (and often more than just one) when we discuss a potential termination with them.  The “Joe” employee is always the hardest.  Often, poorly performing employees don’t show their colors in front of their peers.  It might be that Joe is able to hide his substandard performance from everyone in the department because his job is hard to monitor by anyone at his level.  It could be Joe is involved in something that is in violation of federal or state laws.  Often, the “Joe” is someone who is very good at buttering up to his peers, shifting most of his work to them; he might think he is being a great delegator but in reality he is a terrible employee.

When the decision is made to say good-bye to Joe, the employer is also faced with how to tell the rest of the employees that Joe is no longer part of the company.  If Joe has been an extremely poor employee – whether he broke law, didn’t live up to expectations, or was a poor influence on others – it is a real challenge on what you can say and what you need to keep confidential.

It is always the best advice to ‘take the high road’ and not say a word.  You are the boss, your employees trust you to make decisions based on what is best for the company…at least they should.

And that is one of the hardest parts of being the boss.  Popular Joe – fired.  Boss – not so popular any more.  No matter if the reasons were very serious or if Joe was a negative force in the workplace, employees will always question why a popular guy like Joe is let go.  In the best possible worlds, employees know that the manager makes these type of decisions based on hard facts and long nights of deep thought.  Sadly, such a perfect world doesn’t exist.

The watercooler will be buzzing – until you, the boss, walk in.  Morale might take a real dip for a while.  After all, if you let Joe go ‘who knows who will be next?’  Sometimes, loyalty to the terminated employee trumps loyalty to the employer and others might choose to follow Joe out the door.  It is a very human response to want to call an employee meeting, lay out your case and let them know exactly what Joe did (or didn’t do) that forced your hand.  DON’T DO IT!

Instead, remember that one of management’s first priorities is to protect the reputation of the company and all who work within its walls.  This means that you should have a policy in place that clearly states what happens at termination and that the privacy of the individual is to be respected at all times.  Therefore, reasons for termination will be strictly confidential unless there are legal reasons where other communications might be necessary.  It also means that when Joe’s leaving is announced, management is very careful to say that “while Joe is no longer part of our company, we all wish him well in his future endeavors.”  Finally, it is extremely important that management commit to much more face time with Joe’s work group for the following few weeks to reassure them that the company supports them and is focused on their success.

If the work team wants to meet Joe after work to commiserate, you should not say anything (even though you will probably be hurt by their perceived ‘disloyalty’).  Remember, most friendships forged in the workplace have a way of dying out once that person is no longer part of the work team.  One or two venting parties shouldn’t be enough to worsen morale if you have taken the steps to keep it confidential and professional at work and have made extra effort in being physically present for your employees.

If you have a history of being a respectful and caring manager, Joe’s leaving should only be a brief bump in the road.  No termination is easy, but often they are necessary.  It’s hard and it’s emotional.

However, we are always amazed at how quickly employees can adjust to a “world without Joe” if the employer follows these steps and keeps his team focused on creating an even better workplace in the future.

Terminating Older Workers

September 15th, 2014


As a small business owner, you may have employees who have been working for you since you first opened your doors – employees who have been loyal and worked long and hard to help your company get where it is today.  While there are many employers who recognize the various advantages of retaining older workers in their organizations and the many older workers who are very effective, there are times when these employees are no longer meeting the requirements of their job.  Yet there is always the concern that in doing so, you may be opening your company up to an age discrimination claim.

Under the federal Age Discrimination in Employment Act of 1967 (ADEA), employers with 20 or more employees, (including state & local governments, labor organizations, and employment agencies) cannot discriminate against workers and job applicants who are at least forty years of age or older when it comes to employment decisions in such areas as hiring, compensation/benefits, promotion and discharge. Certain states have also passed their own age discrimination laws which may impose a different cutoff age and/or cover more workers.  That said, whenever an employee is not meeting the performance expectations of their job, he/she can be let go, and regardless of whether or not they belong to a protected class of workers, as long as you have the necessary documentation in place.

Should you find yourself needing to let an older worker go, it may be helpful for you to review the following activities which should be enforced in any fair and equitable workplace:

  • Accurate and up-to-date job descriptions should be created and maintained for all positions within your company. Ideally the job descriptions should be reviewed and signed annually by all employees.
  • Your employee handbook should contain a policy against discrimination which should not only define the different types of forbidden discrimination but also inform employees who they should report their discrimination complaints to and how those complaints will be handled. Ideally, the employee handbook should be reviewed and signed annually by all employees.
  • Annual performance reviews should be conducted on all employees.  We recommend supervisors track employee performance throughout the year in a Critical Incident Log so when the time comes to complete the reviews; they have a resource to refer to so as to ensure the review is comprehensive and objective.  Employees and supervisors alike should sign any performance documentation that is shared and the documentation should be filed in the employee’s personnel file
  • Any supervisor who believes that a worker’s productivity has been declining should keep very detailed records about the issues.  If any coaching or verbal warnings occur, the supervisor should document the incident (s) and share them with the employee.  The supervisor should obtain the employee’s signature as proof that the information has been shared with the employee.
  • Make sure any feedback that is given is job-related and does not mention age or any other protected characteristic as a potential reason for the poor performance.
  • If your organization has a detailed disciplinary process in place, ensure that you follow it before proceeding with a termination.  If an employee was to bring an age discrimination claim against your company, you will want to prove that the individual, regardless of his/her age or any other protected characteristic, was treated the same as all other employees.
  • If an individual belongs to a protected class and you are unsure if you have adequate documentation on file, we would encourage you to run the case by a lawyer who specializes in employment law before proceeding with a  termination.


Post Bonus Boss Blues

September 10th, 2014


Is thanking your boss now considered ‘brown nosing’?  A client recently lamented that of the 80 employees who received a Holiday Bonus this year, only two told him thank you.  That’s right, only two.  And no one bothered with an actual written thank you note.  He was upset, feeling that his employees were either unaware of the voluntary sacrifice he made to provide them with a monetary bonus during tough times or they were all ingrates who felt they were entitled to a yearly bonus as part of their compensation.

He wasn’t alone.  Many business owners and managers reported that this has happened to them as well – but this year it seemed even more pronounced.  What is going on; and, is there anything that can be (or should be) done before next December to avoid the bad post-bonus boss blues?

Google ‘thanking boss for Christmas Bonus’ and you’ll be amazed at how some bloggers regard thank you notes (and even a verbal ‘thank you’) as being disingenuous or, as one blogger put it:  Brown-Nosing.  It seems that some are under the impression that showing gratitude to someone who signs the checks is really just a way to further ingratiate oneself with the boss.  Nothing can be further from the truth.  However, if the company’s culture is one of little positive feedback one can see how these feelings can surface.  On the other hand, if management is often heard giving verbal positive feedback, chances are the employees will follow the example set by leadership and respond in kind!

There is also the belief that thanking someone who gave you a token of THEIR thanks is not necessary.  A Thank You for a Thank You could result in a continual volley of thanks.  In our humble opinion, why is that so bad?  Unless it gets to the point of one-ups-man-ship, acknowledging someone’s belief that you have done something that warrants recognition can only reassure the giver that they were correct in their assumption of your good work.

Another reason that few employees thank management for their end of year bonus is that it is viewed as just part of their pay.  There is nothing they feel they do (or don’t do) that has a direct correlation on what the bonus amount will be.  It is either the same every year – the infamous Christmas Turkey – or it is seen vary on the whim of the owner.  If the owner wants to share the good fortunes of the company in one year, no matter what happens the following year the employees will likely expect the same reward.  It is not that they are selfish, nor that they are ungrateful.  They have just never been told HOW these bonuses are arrived at…and what impacts the amount from year to year.  If it is truly a bonus based on an individual’s performance, then it should be directly tied to the numbers that reflect that person’s contribution.  If it is a bonus based on an owner’s desire to share profits

with the employees, it should be communicated as such.  If it is to say thank you for all of your work this year, then it is management’s job to let the employee know just how that hard work affected the company.  To just put a check in an envelope with a note saying ‘Happy Holidays’ will lead an employee to believe that it is an envelope that will be found under the Tree every year…no matter what.


This leads to another issue that can cause holiday bonuses to backfire.  Some managers look at bonus time as an opportunity to play Santa Claus:  who was naughty this year and who was nice?  Because this manager uses no objective measurements, she can pick and choose who gets how much based on ‘likeability’.  What this manager needs to understand is that her employees don’t keep bonus amounts secret.  When Harry gets a $250 bonus, and John (who has the same position one cubicle over) gets a $400 bonus, why is she surprised when Harry’s work quality takes a dive in January?  Don’t look for Harry to write a thank you note; expect Harry to be underperforming for the next quarter – at least.


Holiday bonuses can be a wonderful way to celebrate good fortune with employees, or simply to thank them for their dedication in tough economic times.  It is human nature to be disappointed when a gift is not acknowledged.  However, as we pointed out to our disappointed client, not getting a thank you is not a reason to quit holiday bonuses.  It is time, however, to assess WHY these bonuses are given and HOW to better communicate these reasons to the receiver.  Maybe next year he won’t have to suffer the Post Bonus Boss Blues!

Gen X as Managers

August 20th, 2014


For decades, members of Generation X have had to battle the label of ‘slacker’.  They were portrayed in teen movies of the 80’s and early 90’s as unfocused, lazy and grungy.  Ads depicted them as more concerned about the next party than about getting a job. As those born between the mid-sixties and mid-seventies, they followed on the heels of the largest generation in US history, the Boomers.  While the Boomers were graduating from college, working their way up the corporate ladder, and garnering the complete attention of media and advertisers, the much smaller Gen X was developing its own unique culture.  And, in no way can this culture be defined as ‘slacker.’  The typical Gen X employee is now in their late thirties and many are now successful managers and entrepreneurs.  What motivates this generation—and how can we keep the best and the brightest from moving on.

Gen X, once termed the ‘slacker generation’, is evolving into anything but in the workplace.  Granted, they don’t view work quite the way the Boomer generation does.  In fact, these differences can cause much tension and lost productivity if both generations don’t understand what makes the other tick.  Born between 1965 and 1977, more and more managers are part of the Gen X demographic.  To make the most of their talents and keep them motivated, older managers and leaders need to focus on what they need to succeed.

It is important to remember that this generation has grown up with technology.  Computers have always been an integral part of their lives.  Rapid change is not seen as a threat to this group; they have readily adapted to each new technology as it came along.  Because of this, however, they rely more on technology than older workers to help solve issues in the workplace.  Instead of asking, “Who can help us solve this problem” the Gen Xer will often ask “What software is out there to get us out of this situation?”

That’s not to say that the Gen X manager isn’t people oriented.  This generation was the first to introduce the lexicon “Soccer Mom” into the mainstream political discourse.  Their parents were the first purchasers of the Suburban, used to transport their children from the soccer field to the hockey rink on a daily basis.  The Gen X manager is a team oriented leader who understands that everyone has a role on the team.  They also like to win.  The company that keeps the Gen X manager motivated and focused will provide that manager with clear objectives and goals along with an objective way to keep score (i.e. key performance indicators, benchmarks, etc.).

They need to be passionate about the mission and understand how they and their subordinates fit in the long range goals of the organization.  One thing most Gen X managers aren’t passionate about is seniority based promotions and pay structures.  More traditional occupations, such as Public Accounting and Law, must take a fresh look at how to keep their best and brightest from moving on.  This generation, much like the Millennials we wrote about in last month’s newsletter; don’t have the patience to work themselves up the ranks.  They need to be rewarded for performance, not longevity.  Because they are so used to dealing with rapid change it often seems like their own lives are on fast-forward.  “Paying their dues” is something they see as totally irrelevant in today’s workplace.

Since the first Gen Xer was born in 1965, society has gone through changes beyond just technology.  Women bosses aren’t a novelty like they were when the Boomer generation entered the workplace.  Businesses are much more diverse and the Gen X managers are much more at home dealing with different work styles and cultures than the generations that proceeded them.  They are at the forefront of the work/life balance movement.  It is not that they aren’t committed to their work; it is just that they are even more committed to their total life experience.

There are many strengths and skills that a Gen X manager can bring to the workplace.  What must your company do to develop them as productive leaders for your future?




Reduced Workforce and Productivity

August 18th, 2014


Many of our clients have trimmed their payroll about as far as they can.  If they are to still meet the expectations of the customers, too few employees means longer turn-around, slower response time and poor customer service.  Smart companies know that it is in times of economic downturns when the focus should be on providing service well ABOVE expectations.

We hear stories every day about terrible customer service and long wait lines.  We also know that when the economy turns around, customers will remember who served them well…and will refuse to deal any longer with those who did not.

How can businesses keep their employees enthused about their jobs, be more productive and focused on providing excellent service in this environment?  It’s all about developing teamwork.  What can be done to build a strong team who can weather any storm or challenges?

The proverb “Two heads are better than one” has been around a long time.  In today’s economic realities, the proverb is as fresh and relevant as it was when it was first written.  With the reduction in workforce in many companies, employees are asked to multi-task, take on more assignments, and learn new ways of doing things.  When management fosters a culture of teamwork, employees can be actively engaged in improving their work environment leading to more efficiencies, and higher productivity and morale.

So, how do you begin to build a more effective, strong team and work atmosphere?  Here are some guidelines:

Set clear expectations for your team.  Employees should understand their own job’s expectations as well as the expectation to help each other out as needed.  If possible, cross train employees so they can feel confident in lending a hand in different areas as needed.

Clearly communicate your company’s mission and vision for the future.  Everyone will work better together if they have a common goal in sight and understand that they need each other in order for that goal to be achieved.  Employees read the paper, they listen to the news.  They know that the recession continues to adversely impact not only the country as a whole but their own community and neighborhoods as well.  Most know of someone who has recently been laid off; it is only reasonable for them to feel insecure at this time.  The best way to eradicate fear is openly talk about your current business challenges and what you (and your team) need to do to succeed.

Foster commitment in your employees.  By hiring correctly, orientating right, providing on-going training as needed, and, establishing a supportive, friendly environment, you will instill a sense of loyalty and commitment in your employees.  Generally, the more commitment someone has to a cause, in this case your business, the better they will work with others to get needed work completed.

Be selective.  Even in a time of layoffs and hours reduction, there are still going to be positions that need to be filled within the organization.  When you hire the most qualified applicants who are the best fit for your company, your existing team will feel more comfortable and accepting of the new employee and successfully welcome the new member to the team.  When possible, allow members of the team help you in the hiring and training processes.

Empower your employees.  Ask for their input and get them involved in making their work more efficient and productive.  This enables them to feel ownership in their jobs and the company’s mission and business plan.  Empowerment fosters more commitment and camaraderie towards the business goals.

Develop Productive Intergroup Communication.  Be watchful of the group’s interpersonal skills, especially in trying times such as these.  Be proactive in assisting employees resolve any conflicts with each other.  In the June 2009 newsletter we will have an article that focuses on conflict in the workplace and some simple steps to resolve these often uncomfortable ( and always disrupting) situations.

Have a Rewards and Recognition Program.  It doesn’t have to be fancy…or expensive.  It just needs to be fun!  Keep employees involved by thanking them and praising them for their efforts.  Nothing creates a healthy team better than recognizing a winning effort.

Vehicle Policy

August 6th, 2014


Most companies conduct at least a little business ‘on the road’.  Whether it is having specific jobs dedicated to driving delivery trucks or just having the filing clerk drop off the mail after her lunch hour, many companies have employees who complete assigned tasks by driving a vehicle during work hours.  Do all of these companies have Vehicle Policies in place to protect the business as well as the employee?  Sadly, many do not.

Here are some recommended policies for you to consider including in your Employee Handbook.  Not all policies will work in all situations; however, by carefully examining how and when company vehicles and/or employees are used both during the work day and after hours, you can craft a policy that will work best for you.

No matter if the job’s primary functions include driving a company vehicle or if it is just a once a week errand, have a policy in place that clearly defines your expectations of the driver. 

-  Address safe driving habits.  If the driver gets a moving violation, who is responsible to make sure it is paid (and paid on time)?  What about parking tickets—and what if this ticket was issued when the employee was on an ‘emergency’ delivery at the request of his supervisor?

- What if there is an accident?  Make sure the policy outlines the steps the employee needs to follow when reporting an accident, both to the proper outside authorities and to the designated internal person.  Are there forms that need to be completed?  If so, be sure to have these forms readily available to the employee.

-Cell phoning while driving is illegal in most states.  The vehicle policy must include a section on cell phones…and texting!  We are always amazed at clients who report that their employee didn’t know that texting while driving falls under the same policy as cell phoning!

- Who is allowed to ‘go along for the ride’?  Can employees drop their children off at school on their way to the job site in a company owned truck?  Can they pick up hitch-hikers?

- Can the vehicle be used during non-work hours for personal purposes?  Who pays for the insurance and the gas?  How is mileage calculated and how is this reported?

-It should be obvious that the driver should  not drink or take illegal drugs while driving.  However, even the most obvious needs to be addressed in a vehicle policy.  Companies should also include a section on legal drugs that could affect a driver’s ability.

What about the vehicle, itself?  If it is a company vehicle, the policy should include:

- Expectations of how the vehicle needs to be maintained—who is responsible for common maintenance (oil change, gas, etc.)?  Who is accountable for making sure it is clean (both inside and out)?

- A certificate of insurance should be on file for everyone who drives a company vehicle AND for anyone who does company business while driving their own personal vehicle.  Many insurers are now demanding this be done.



Legal Marijuana and the Workplace

July 29th, 2014


As you likely are already aware, Washington and Colorado have passed initiatives to permit the use of marijuana for “recreational” purposes.  If you are like many of our clients, even those who don’t live in either of these states, you are probably wondering how these laws will affect your company.

These new laws are of particular concern to employers who have employees in safety-sensitive positions such as those positions typically found in healthcare and manufacturing – and rightfully so.  In fact, due to the number of concerns they have received, the Department of Transportation recently released a notice stating that the state initiatives will have no bearing on their drug testing program and that the regulation does not authorize the use of Schedule 1 drugs, including marijuana, for any reason.    Therefore, if you have an employee who has to abide by the Department of Transportation’s Drug and Alcohol Testing Regulation (49 CFR Part 40) in order to retain their Commercial Driver’s License (CDL), and he/she tests positive for marijuana, that test will not be ruled negative because the employee admits to using marijuana for recreational purposes as allowed under WA or CO state law.  The same also holds true for employees who test positive for marijuana and admit to using marijuana as recommended by his/her physician for medical purposes, even though some states have passed “medical marijuana” initiatives.

While WA and CO have passed these initiatives, marijuana still remains a drug listed in Schedule 1 of the federal Controlled Substances Act.  Employers who hold contracts with the government should follow appropriate regulations pertaining to employee drug and alcohol use/testing.

Although the federal government, in conjunction with the WA and CO state governments, have yet to determine exactly how to administer these laws, there are several steps you can take as a business owner to ensure you are prepared to properly deal with employee drug and alcohol use.


¨ Ensure that your company has a policy that prohibits employees from being on your property and/or performing the duties or his/her job when there are detectable amounts of illegal drugs (as per federal, state, or local law) or alcohol in their system.


¨ Ensure that the policy specifically covers drugs that are illegal under federal, state, or local law and addresses drugs that are prescribed by a physician.


¨ When writing/revising your policy, use the phrase “detectable amounts of illegal drugs” instead of the phrase “under the influence of illegal drugs.”  The focus should not be on when the employee used the drug because what an employee does on their own time is not of your concern.  Instead, the focus should be on whether or not the drug is currently in their system because if it is, it could potentially have a negative impact on their work performance.


¨ Notify your employees that while recreational marijuana use under WA and CO state law is allowed, marijuana can show up on a drug test days, and possibly weeks, after taken in and if detected, it may be grounds for disciplinary action which should be clearly stated in your policy.


While personal and professional lives are often intertwined, it is necessary to compartmentalize the two whenever possible and focus simply on job performance.  If an employee is showing up to work drunk or stoned, there will obviously be an impact to job performance.  If an employee has a drink or smokes a joint over the weekend, it shouldn’t be a concern of yours unless of course the residual effects of those actions impact their work performance on Monday.   If an employee is selected for random drug and alcohol testing or is required to submit to a post-accident drug and alcohol test, and tests positive for marijuana but swears she smoked only a joint two weeks ago, the possible discipline that might result is a risk she runs.


Undoubtedly there will be much more information to come. We will keep abreast any new developments and share them with you when appropriate.  If you have any questions regarding your current policy or need help writing a policy, please do not hesitate to give us a call.