Judy Kneiszel a Transport Safety Editor

Judy Kneiszel

HUMAN RESOURCES

Judy is an Associate Editor on the Human Resources Publishing Team at J. J. Keller & Associates, Inc. She conducts research and creates content on a variety of HR-related topics and contributes to a number of Human Resource products including the Employee Relations Management Today newsletter and the Essentials of Employee Relations manual. Judy specializes in issues such as recruiting and hiring, onboarding and training, employee communication and discipline, managing problems, team building, inclusion, employee retention, and labor relations.

Have a compliance question for Judy? Send it through J. J. Keller's Expert Help feature included with all publications in the Compliance Library.

Expert Advice From Judy

FAQs answered by Judy Kneiszel

We have an associate who was arrested for stealing money from another company. He has not been convicted of the crime. The arrest has been posted in the paper as well as on social media. Is it legal to suspend the associate until there is an outcome to the case OR is it legal to terminate the associate for the theft arrest?

ANSWER:
Before you take the step of terminating the employee, there are factors to consider:

First, remember that an arrest is different than a conviction. An arrested employee has not been found guilty. All states except Montana are “at will” states, which means you can terminate an employee for any reason, as long as it’s not an illegal reason, such as discrimination against a particular protected class, e.g., race, gender, religion, age, etc. In some cases, however, acting on an arrest alone can be seen as discriminatory. It’s important to ensure you don’t treat this one employee differently than you would treat any other employee in the same situation.

Second, while arrest alone may not be a reason for termination, the Equal Employment Opportunity Commission (EEOC) does allow employers to base decisions on the conduct underlying the arrest if it makes the employee unfit for his or her position. In this case, if the employee was arrested for stealing money, you may not want him handling cash on the job or dealing with company finances in any way. Finally, an employee can be terminated based on absences. If this employee is in jail, he is not protected from termination or discipline for being absent from work. If you would normally terminate an employee who could not come to work for a certain length of time, you could also terminate in this instance.

We recently bought out another company. This company had written contracts with some of its employees. Within the contract agreement it stated that they will be employed for two years. Do they need to sign the new employee handbook that states that all employees are subject to at-will status?

ANSWER:
If these employees are under a contract, that supersedes anything in the employee handbook because the employee handbook is not considered a contract. By signing the handbook, employees are merely acknowledging that they received it; the signature does not make it a contract.

While the handbook is a good place to include an at-will disclaimer, you may also want to include language explaining that the handbook is not intended to create an actual or implied contract for continued employment.

Signing or not signing the handbook would likely have no impact on the validity of the written contracts that some of the employees have.

Am I within our company’s rights to have someone clock out and go home if they are caught not wearing their PPE? I’ve covered the safety rules regarding this extensively with all employees.

ANSWER:
We are not aware of any reason you couldn’t enforce a company policy requiring PPE to be worn by having this employee clock out and leave. This is especially valid when the rules have been presented to all employees extensively and this employee chose to disregard them, thus violating the policy. Just make sure you are treating all employees fairly (not giving someone else without proper equipment a pass while sending this one home).

May we keep required written plans electronically?

ANSWER:
Yes, OSHA allows a written plan to be kept in either paper or electronic format, if it meets all other requirements of the standard in question. Where the OSHA standard requires that the written plan be made available to employees, you must ensure that employees know how to access the document and that there are no barriers to employee access. If you keep plans electronically, consider how they will be made available to employees and to any OSHA inspector who knocks on your door. Printing a copy is usually acceptable for OSHA inspectors.

Is there a physical size requirement when posting mandatory state and federal labor laws in the workplace?

ANSWER:
Each posting is governed by a different law, and some of these laws do require that the posting is displayed at a certain size.

For example, the federal OSHA poster must be on paper measuring at least 8 1/2 x 14 inches, and the size of the type must be at least 10-point type. The heading must generally be in 36-point type.

State posters may also have size requirements. In general, all postings must be readable, and must be posted in a location where they are readily visible to employees.

Products written by Judy Kneiszel

Employee Relations Management Today Newsletter

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Essentials of Employee Relations Manual

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