the manager's legal handbook 3rd (2005)

The Manager’s
Legal Handbook
By Attorneys Lisa Guerin and Amy DelPo
3rd edition
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The Manager’s
Legal Handbook
By Attorneys Lisa Guerin and Amy DelPo
3rd edition
Third Edition NOVEMBER 2005
Editors STEPHANIE BORNSTEIN
LISA GUERIN
Cover Design TONI IHARA
Book Design TERRI HEARSH
Proofreading JOE SADUSKY
Index ELLEN SHERRON
Printing CONSOLIDATED PRINTERS, INC.
Guerin, Lisa, 1964–
Manager’s legal handbook / by Lisa Guerin & Amy DelPo
p. cm.
Rev. ed. of: Everyday employment law. 2nd ed. 2004.
ISBN 1-4133-066-8 (alk. paper)
1. Labor laws and legislation United States Popular works. 2. Labor contract United
States Popular works. 3. Employee rights United States Popular works. 4.
Executives United States Handbooks, manuals, etc. I. DelPo, Amy 1967– II. Guerin,
Lisa, 1964- Everyday employment law. III. Title
KF3455.Z9G84 2005
344.7301 dc22
2005051821
Copyright © 2001, 2004, and 2005 by Nolo
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Acknowledgments
The authors would like to thank:
On the first edition, our wonderful editor, Shannon Miehe, whose sense of humor,
organizational skills, lightning-fast speed, and careful editing made working on this
book a pleasure.
On subsequent editions, our editor and friend, Stephanie Bornstein, who helped
transform the book into a must-have legal guide for managers.
Mary Randolph, Jake Warner, and Janet Portman, all of whom helped us figure out
how to organize this material—and how to avoid the dreaded “scope creep.”
Ella Hirst, for meticulously researching and compiling the state charts.
Stan Jacobsen, for his research help and ever-positive attitude.
John M. True, III, formerly of Leonard Carder, LLP, in Oakland, California, for writ
-
ing some of the privacy material and helping out with the information on unions.
Philip Monrad, also of Leonard Carder, for his generous help with the unions
chapter.

Table of Contents
Introduction
Navigating the Maze of Employment Law
How to Use This Book I/2

Additional Resources I/
3
1
Hiring
Advertisements 1/5
Interviews 1/
6
Making Promises 1/
8
Applicants With Disabilities 1/
9
Testing Applicants 1/1
1
Background Checks 1/1
4
Young Workers 1/1
6
Offer Letters 1/1
8
Written Employment Contracts 1/1
9
2
Compensation and Hours
The Fair Labor Standards Act 2/6
Deciding What to Pay People 2/
7
The Minimum Wage 2/1
2
Overtime 2/1
4

Travel Time 2/1
9
On-Call Time 2/2
1
Flexible Work Schedules 2/2
2
Pay Docking and Unpaid Suspensions 2/2
4
Garnishments 2/26
Equal Pay 2/2
8
Record Keeping Requirements 2/3
0
3
Discrimination
Antidiscrimination Laws 3/6
Race and National Origin 3/1
0
Age 3/1
3
Gender, Pregnancy, and Sexual Harassment 3/1
4
Sexual Orientation 3/1
7
Religion 3/1
8
Disability 3/1
9
Genetics 3/2
1

4
Personnel Basics
Personnel Policies and the Law 4/5
At-Will Employment 4/
6
Employee Handbooks 4/1
0
Preventing Sexual Harassment 4/1
3
Communicating With Employees Effectively 4/1
5
Performance Appraisal 4/2
0
Creating and Maintaining Personnel Files 4/2
4
Family-Friendly Workplace Policies 4/2
7
5
Time Off
Vacation and Sick Leave 5/4
Family and Medical Leave 5/
5
Pregnancy and Parental Leave 5/1
0
Jury Duty and Voting 5/1
3
Military Leave 5/1
3
Other Types of Leave 5/1
5

6
Privacy
The Right to Privacy 6/3
Testing Current Employees 6/
5
Electronic Monitoring 6/
8
Off-Duty Conduct 6/1
5
Workplace Searches 6/1
7
7
Health and Safety
Health and Safety Laws 7/3
Workers
’ Compensation 7/5
Smoking 7/
6
Drugs and Alcohol 7/
8
8
Unions
The National Labor Relations Act 8/4
Representation Elections and Organizing Campaigns 8/
6
Election Statements 8/
8
Shop Talk 8/
9
Union Shops and Union Dues 8/1

1
Collective Bargaining 8/1
3
Company Unions and Employee Committees 8/1
4
Strikes 8/1
7
9
Independent Contractors
Classifying Workers 9/4
Benefits and Drawbacks of Using Independent Contractors 9/
9
Important Documents When Hiring Independent Contractors 9/12
Written Agreements With Independent Contractors 9/1
4
Copyright Ownership 9/2
1
10
Trade Secrets
The Law of Trade Secrets 10/3
Protecting Trade Secrets 10/
6
Nondisclosure Agreements 10/1
1
Noncompete Agreements 10/1
2
Nonsolicitation Agreements 10/1
5
Hiring From Competitors 10/1
6

11
Handling Workplace Problems
Disciplining Workers 11/3
Investigating Complaints 11/
5
Retaliation 11/1
2
Workplace Violence 11/1
4
Liability for an Employee
’s Bad Acts 11/18
12
Firing and Layoffs
Illegal Reasons for Firing Employees 12/4
Firing Employees With Employment Contracts 12/
6
Making the Decision to Fire 12/
8
How to Fire 12/1
1
Before Conducting a Layoff 12/1
6
Making the Cut 12/1
8
Conducting a Layoff 12/1
9
13
Departing Workers
References 13/3
What to Tell Coworkers When an Employee Leaves 13/

6
Health Insurance 13/
6
Severance 13/
7
Releases 13/1
1
Unemployment Benefits 13/1
2
Appendix
Resources
Internet Resources A/2
Federal Agencies That Enforce Workplace Laws A/
3
Departments of Labor A/
4
Agencies That Enforce Laws Prohibiting Discrimination in Employment A/
9
State OSHA Laws and Offices A/1
4
Index

INTRODUCTION
Navigating the Maze of Employment Law
How to Use This Book I/2
Additional Resources
I/3
I/2
THE MANAGER’S LEGAL HANDBOOK
S

ome managers learn the hard way
that good intentions aren’t enough.
In these days of burgeoning employ-
ment laws, regulations, and lawsuits,
successfully and safely managing workers
(employees and independent contractors
alike) requires a whole lot more than just
following your instincts. Lawmakers and
courts have created a complicated web
of dos and don’ts that covers the entire
spectrum of workplace issues, from hiring
and firing to discrimination and harass
-
ment. If you are a supervisor, manager, or
human resources specialist, you’ve got to
learn how to navigate this legal maze—or
risk serious trouble for your company and
yourself.
Fortunately, learning what you need to
know to manage workers on a daily basis
doesn’t have to be time-consuming or
difficult—or even unpleasant. This book
distills these complicated issues down to
the basics, providing the most important
information you need to know when you
walk into your workplace every day.
How to Use This Book
This book gives you the information you
need to deal with many common work-
place concerns and issues. Each chapter

focuses on a specific employment law
topic—such as hiring, compensation and
hours, privacy in the workplace, and so
on—and breaks that subject down into the
issues managers are most likely to face.
Of course, every company is different
and every manager has different areas of
responsibility and expertise. Although this
book explains the legal rules that apply to
managers and companies alike, not every
manager will have the authority to make
ultimate decisions on matters of policy or
serious personnel matters, such as firing
and layoffs. We provide this information
to give you some legal background that
will help you understand your role in the
process, as your company defines it.
Each chapter includes:
• Frequently Asked Questions (FAQs).
We introduce you to the chapter
topic through quick answers to
questions that managers and
employers commonly face.
• Articles. We break down the chapter’s
topic into a series of separate articles,
so that you can get right to the
information you need. That way,
you can focus only on the rules that
apply to the situation at hand without
having to wade through an entire

book looking for your answer.
• 50-State Charts. We provide you with
a summary of information on your
state’s legal requirements where
necessary, in addition to the federal
law covered in the chapter.
• Lessons From the Real World. Learn
from the failures and victories of
companies that have been taken to
court by their employees.
• Legal Dos and Don’ts. We provide a
handful of strategies to follow—and
INTRODUCTION: NAVIGATING THE MAZE OF EMPLOYMENT LAW
I/3
traps to avoid—as you implement the
information in each chapter.
• Test Your Knowledge. Find out how
well you understand each topic by
taking our quiz at the end of each
chapter.
You can read through the entire book
at once, pick and choose among chapters
of special interest to your company, or use
the book as a desk reference by consulting
particular articles as issues come up.
No matter how you use the book, the
basic information we provide will help
answer your most common employment
questions.
Additional Resources

Although most managers will rarely need
more information than what we provide
here, you might occasionally have a prob
-
lem that requires you to seek additional
help. We alert you to those potential trou
-
ble spots and point you toward resources
that can give you the extra information
you need.
The appendix (at the end of the book)
contains a list of resources you can consult
for more information. These resources
include:
• Contact information for the federal
agencies that enforce federal work-
place laws, including the Equal
Employment Opportunity Commission
(EEOC), the Occupational Health and
Safety Administration (OSHA), the
Department of Labor (DOL), and the
Federal Trade Commission (FTC).
• Contact information for the state
agencies that enforce state workplace
laws, including a list of state
departments of labor and state fair
employment offices.
• A list of Internet resources, including
government agencies and private
organizations whose websites

provide helpful information about the
topics we cover here.
• A list of Nolo’s employment and
human resources titles, including
books that will help you investigate
workplace problems, evaluate
employee performance, create legally
sound independent contractor
agreements, draft an employee
handbook, and much more.
■

Advertisements 1/5
Interviews
1/6
Making Promises 1/8
Applicants With Disabilities 1/9
Testing Applicants
1/11
Avoiding Disability Discrimination
1/11
Skills Tests 1/12
Aptitude, Psychological, and Personality
Tests 1/12
Lie Detector and Honesty Tests
1/12
Medical Tests
1/13
Drug Tests
1/13

Background Checks 1/14
Young Workers
1/16
Hazardous Jobs
1/17
Agricultural Jobs 1/17
Nonagricultural Jobs
1/18
Offer Letters
1/18
Written Employment Contracts
1/19
Advantages
1/19
Disadvantages
1/20
1
Hiring
1/2
THE MANAGER’S LEGAL HANDBOOK
H
iring can be a tough task for
managers. It’s challenging
enough to find the right hire
for the job—someone with the skills,
attitude, personality, and other important
qualities to be a success at your company.
When you add legal concerns to the mix,
hiring can seem like a truly daunting
responsibility.

But you cannot ignore your legal
obligations when hiring new employees.
Federal and state employment laws reach
beyond just current employees; many also
protect those who apply for jobs by, for
example, prohibiting discriminatory job
postings, putting limits on the information
you can gather in a background check,
or outlawing certain kinds of applicant
screening tests. What’s more, the things
you say and do during the hiring process
could come back to haunt you and your
company later, particularly if an employee
claims that you offered a job contract or
promised job security.
The good news is that following
sensible and careful hiring practices will
keep your company out of immediate
legal trouble, help you find the most
qualified employees, and—by screening
out problem employees from the get-go—
help prevent management headaches and
possible lawsuits down the road.
This chapter explains the legal ins and
outs of hiring, including practical advice
on how to find, interview, and seal the
deal with your lucky new hire.
Frequently Asked Questions About Hiring
■ Do I have to advertise open positions?
No. Although federal, state, and local governments typically have to post

openings, private companies don’t. Nonetheless, there are some very good
reasons to advertise:
• You can choose from a larger pool of applicants, which increases your odds
of finding a great person for the job.
• You avoid unintentional discrimination. (For example, if you rely solely on
word of mouth when looking for applicants and you only know people of
your race or ethnicity, then your hiring process may be discriminatory—
even though that is not your intention.)
• You can avoid the appearance of nepotism or favoritism. If you hire
your friends, family members, or neighbors to come work for you, the
employees who currently report to you may think you’ll play favorites. By
posting open positions and choosing your hires from a broad range of
HIRING
1/3
Frequently Asked Questions About Hiring (continued)
applicants, you can show your reports that you hire—and manage—on
merit alone. (For advice on effective and legal job advertisements, see
“Advertisements,” below.)
■ Are there questions I cannot ask during a job interview?
Yes. For example, you may not ask whether an applicant has a disability, what
country an applicant comes from, and, in some states, whether an applicant
has ever been arrested. (To learn what questions you can and cannot ask an
applicant during an interview, see “Interviews,” below.)
■ Are there things I shouldn’t say when I’m trying to convince a really
strong applicant to take a job?
Absolutely. Although you’ll be tempted to sell your company during a job
interview, don’t overdo it. If you exaggerate—or out-and-out lie—about the
position, the company’s prospects, or other important facts, and the applicant
takes the job based on your statements, that employee can sue the company if
your statements turn out to be false or overly optimistic. (For more information

on statements to avoid when hiring, see “Making Promises,” below.)
■ Can I ask whether an applicant has a disability?
No. The Americans With Disabilities Act (ADA) prohibits you from asking
whether an applicant has a disability. Instead, you should focus your interview
questions on the applicant’s abilities—for example, you may ask whether and
how an applicant would perform each essential job function. If you know that
an applicant has a disability (because it is obvious or the applicant has told you
about it), you may ask whether the applicant will need an accommodation to
perform the job. (For more on avoiding disability discrimination when hiring,
see “Applicants With Disabilities,” below.)
■ Can I ask every applicant to take a lie detector test?
No. The Employee Polygraph Protection Act (EPPA) prohibits lie detector tests
from being required by all but a few types of employers—those that provide
certain types of security services or manufacture pharmaceuticals, for example.
(For more information on what tests you can—and can’t—ask applicants to take,
see “Testing Applicants,” below.)
1/4
THE MANAGER’S LEGAL HANDBOOK
Frequently Asked Questions About Hiring (continued)
■ Can I run background checks on applicants?
It depends on the information you plan to collect. You can check information
that is relevant to the job for which you are considering hiring the worker.
However, state and federal laws restrict you from gathering or using certain
types of records. If you are considering running a background check, your best
strategy is to ask applicants to consent to the check in advance, in writing. (See
“Background Checks,” below, for more information.)
■ Can I hire teenagers to do clerical work?
Generally, yes. Teenagers who are at least 16 years old may work unlimited
hours in any profession that the government has not deemed hazardous. You
can also hire younger teens, although the law restricts how many hours they

may work. (For more information on hiring teenagers, see “Young Workers,”
below.)
■ If I want to offer someone a job, do I have to do it in writing?
There is no law that governs how you offer someone a job. You can do it over
the phone, with a formal letter, or using smoke signals, if you’d like. However,
you should probably send written offer letters just to make sure potential hires
understand exactly what you are offering. Offer letters aren’t without their
pitfalls, however, so be careful what you write. (To learn how to write a legally
safe offer letter, see “Offer Letters,” below.)
■ When I hire someone, should I use a written contract?
It depends on the circumstances. The law does not require you to use a written
employment contract and, for the most part, you probably won’t want to.
However, there may be times when writing a contract is a good idea—for
example, if you want the employee to make a long-term commitment to the
company. (To learn about when you should and should not use an employment
contract, see “Written Employment Contracts,” below.)
HIRING
1/5
Advertisements
Although most “help wanted” ads contain
only a handful of words, using the wrong
sort of words can land your company in
legal trouble. Any job requirement that
discriminates against applicants based
on a characteristic protected by law (for
example, race or gender) violates federal
law and the laws of many states. (To learn
which characteristics are protected by
federal and state law, see Chapter 3.)
Some off-limits topics are obvious—

most managers know that an ad can’t
state “only white males need apply.” But
companies can get into trouble by posting
an ad that discriminates on a more subtle
level—and they may not even realize it
until it’s too late.
For example, let’s say you want to hire
a technician for your company’s infor-
mation systems department. Almost all
of the technician’s day would be spent
at a computer. On occasion, however,
technicians at your company have to install
new equipment, which might require them
to carry computers, monitors, printers,
and so on. Should you write an ad saying
that you are looking for someone who
can lift at least 50 pounds? Well, that
kind of requirement would screen out
applicants with certain disabilities, as well
as disproportionate numbers of women.
Because the lifting is only occasional and
could be accomplished by other means—
using machinery, for example—including
such a requirement in your ad could be
discriminatory.
Similarly, watch for words or descrip-
tions that imply you have a discrimina-
tory preference. For example, let’s say
you are looking for someone to do odd
jobs around your office, from answering

phones to filing to typing. Your ad can
say that you are looking for an “office
worker,” but if you say you are looking
for a “girl Friday,” it implies that you are
only looking for women—and therefore
that you would discriminate against male
applicants. The same precaution applies to
terms like “handyman” or “waiter.”
So what can you say? If you follow
two basic rules, you should steer clear of
trouble:
• Focus on the essential functions of the
job. In other words, only ask for the
skills or characteristics that the job
absolutely requires. For example,
if you are looking for someone to
proofread magazine articles, you
probably don’t need someone
with a college science degree—
unless, of course, your magazine
is a professional scientific journal
where someone might need such a
specialized education. If there is an
up-to-date job description for the
position, you can use it to focus the
ad appropriately.
• Pay attention to the literal meaning of
the words you use.
This is particularly
important with the suffix “-man”—as

in “salesman,” “repairman,” and so
on (try “salesperson” and “general
repair person” instead), or gendered
positions such as “waiter” (use
1/6
THE MANAGER’S LEGAL HANDBOOK
“server” or “waitperson” instead). It is
also important to be cautious when
using words that refer to age. For
example, if you want someone who
is energetic with a lot of fresh ideas,
you might want to say in your ad
“looking for worker with a youthful
attitude.” But if you do, you are
expressing an age preference—which
is discriminatory and illegal.
Interviews
The spontaneous and unpredictable
nature of the job interview makes it rife
with traps, even for managers with the
best of intentions. Well-meaning, innocent
comments could be construed by an
applicant as prejudicial or could be used
later by an unhappy applicant as the basis
of a discrimination lawsuit.
For example, let’s say an applicant grew
up near your home town and attended
the same high school as you and your
siblings. You might naturally want to ask
when the applicant graduated, as a way

to find out whether you know people in
common. The problem is, the answer will
necessarily reveal the applicant’s age—and
if the applicant is at least 40 years old, this
could be part of a discrimination claim if
you later offer the job to someone else.
On the other hand, you don’t want
to get so hung up on every word you
say that you defeat the purpose of the
interview: to learn about the applicant’s
skills and experience so you can choose
the best-qualified candidate for the
position.
Here are some tips that will help you
stay out of legal trouble while also getting
the information you need to make the
right choice:
• Don’t ask about any characteristic that
the law prohibits you from considering
in making your decision.
(To learn
about these protected characteristics,
see Chapter 3.) For example, you
can’t base your hiring decisions on
an applicant’s religious beliefs or
national origin, so you shouldn’t be
asking about those things in your
interviews. In “Pre-Employment
Inquiries,” at the end of this chapter,
we give you some ideas on how to

get information while staying within
the bounds of the law.
• Respect the applicant’s privacy. Although
federal law does not require you to
do so, many state laws and rules of
etiquette do. For example, asking
applicants in California about their
sexual fantasies (yes—that actually
happened in a real life case) violates
their state-protected right to privacy.
(For more information on privacy in
the workplace, see Chapter 6.)
• If an applicant raises a delicate subject,
it’s usually best to skirt the issue.

Unless the topic is directly related
to the position—for example, the
applicant reveals that he or she
has a disability and will need an
accommodation to perform the
job—politely steer the conversation