The Manager's Legal Handbook / Edition 5

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Overview

Supervise employees and independent contractors safely and legally with this quick reference to employment law, combining legal information and practical ideas in Nolo's plain-English format. The Manager's Legal Handbook includes answers to your employment questions including: frequently asked questions; lessons from the real world; dozens of resources, online and off

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Editorial Reviews

American Reference Books Annual
"Takes everyday employment topics, such as hiring and firing, and breaks the issue down into understandable legal segments."
Reference & Research Book News
"A guide to the legal aspects of supervising employees and contractors..."
HR Magazine
A comprehensive resource that employers can refer to again and again . . .
American Reference Books Annual
Takes everyday employment topics, such as hiring and firing, and breaks the issue down into understandable legal segments.
Reference & Research Book News
A guide to the legal aspects of supervising employees and contractors . . .
HR Magazine
A comprehensive resource that employers can refer to again and again...
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Product Details

  • ISBN-13: 9781413310702
  • Publisher: NOLO
  • Publication date: 12/11/2009
  • Edition description: Fifth Edition
  • Edition number: 5
  • Pages: 504
  • Product dimensions: 7.00 (w) x 8.90 (h) x 1.20 (d)

Meet the Author

Lisa Guerin, an editor/author specializing in employment law, is author or co-author of several Nolo books, including The Manager's Legal Handbook, Dealing with Problem Employees, Nolo's Essential Guide to Federal Employment Laws, Workplace Investigations, Create Your Own Employee Handbook, and Nolo's Guide to California Law. Guerin has practiced employment law in government, public interest, and private practice where she represented clients at all levels of state and federal courts and in agency proceedings. She is a graduate of Boalt Hall School of Law at the University of California at Berkeley.

Amy DelPo is an author and consulting editor who specializes in employment and family law issues. She brings years of criminal and civil law experience to her work at Nolo, having litigated cases in all levels of state and federal courts, including the California Supreme Court and the United States Supreme Court. She has written numerous employment law titles, including The Performance Appraisal Handbook, Dealing with Problem Employees, and Create Your Own Employee Handbook. She is also the editor of Parent Savvy, a book that answers parents practical, financial, and legal questions. Ms. DelPo currently divides her time between writing on legal issues and chasing after her two busy children, Sophia and Charlie. Ms. DelPo received her law degree with honors from the University of North Carolina at Chapel Hill.
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Read an Excerpt

Introduction

Hiring 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.

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 findinga 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 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.)
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Table of Contents

Introduction: Navigating the Maze of Employment Law
How to Use This Book

Additional Resources

1. Hiring
Advertisements
Interviews
Making Promises
Applicants With Disabilities
Testing Applicants
Background Checks
Young Workers
Offer Letters
Written Employment Contracts

2. Compensation and Hours
The Fair Labor Standards Act
Deciding What to Pay People
The Minimum Wage
Overtime
Travel Time
On-Call Time
Flexible Work Schedules
Pay Docking and Unpaid Suspensions
Garnishments
Equal Pay
Record Keeping Requirements

3. Discrimination
Antidiscrimination Laws
Race and National Origin
Age
Gender, Pregnancy, and Sexual Harassment
Sexual Orientation
Religion
Disability
Genetics

4. Personnel Basics
Personnel Policies and the Law
At-Will Employment
Employee Handbooks
Preventing Sexual Harassment
Communicating With Employees Effectively
Performance Appraisal
Creating and Maintaining Personnel Files
Family-Friendly Workplace Policies

5. Time Off
Vacation and Sick Leave
Family and Medical Leave
Pregnancy and Parental Leave
Jury Duty and Voting
Military Leave
Other Types of Leave

6. Privacy
The Right to Privacy
Testing Current Employees
Electronic Monitoring
Off-Duty Conduct
Workplace Searches

7. Health and Safety
Health and Safety Laws
Workers' Compensation
Smoking
Drugs and Alcohol

8. Unions
The National Labor Relations Act
Representation Elections and Organizing Campaigns
Election Statements
Shop Talk
Union Shops and Union Dues
Collective Bargaining
Company Unionsand Employee Committees
Strikes

9. Independent Contractors
Classifying Workers
Benefits and Drawbacks of Using Independent Contractors
Important Documents When Hiring Independent Contractors
Written Agreements With Independent Contractors
Copyright Ownership

10. Trade Secrets
The Law of Trade Secrets
Protecting Trade Secrets
Nondisclosure Agreements
Noncompete Agreements
Nonsolicitation Agreements
Hiring From Competitors

11. Handling Workplace Problems
Disciplining Workers
Investigating Complaints
Retaliation
Workplace Violence
Liability for an Employee's Bad Acts

12. Firing and Layoffs
Illegal Reasons for Firing Employees
Firing Employees With Employment Contracts
Making the Decision to Fire
How to Fire
Before Conducting a Layoff
Making the Cut
Conducting a Layoff

13. Departing Workers
References
What to Tell Coworkers When an Employee Leaves
Health Insurance
Severance
Releases
Unemployment Benefits

Appendix: Resources
Internet Resources
Federal Agencies That Enforce Workplace Laws
Departments of Labor
Agencies That Enforce Laws Prohibiting Discrimination in Employment
State OSHA Laws and Offices

Index
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