Employment law for law firms: do the shoemaker's children need new shoes?

• Author: Schwarzberg, Steven L.
• Position: Part 2

In the first part of this article published in the July/August issue, we covered basic labor and employment law issues that law firms may encounter in managing their employees. In this part, we discuss policies and training that will help law firms fulfill their legal responsibilities and effectively manage their employees.

Policies and Training: A Two-pronged Shield for Employers

Policies and training are two very important pieces of your employment law defense. Like Sinatra used to sing, "You can't have one without the other." Employees generally must receive training on your policies if you want them to be effective. In a perfect world, employers would have all policies in place, distributed, and up-to-date, and have their employee training done on a regular basis. The reason policies and training are so important stems from the two U.S. Supreme Court decisions of Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742 (1998).

Generally speaking, these cases provide that if an employer has its harassment policies in place and its employees trained, and it follows those policies when an employee complains about harassment, an employer may have an iron-clad defense to a harassment claim where the employee has suffered no tangible impact (like a firing or demotion). Suffice it to say that if a law firm does not have its policies in place and training conducted, it could be a sitting duck--unable to avail itself of these important defenses.

There are numerous policies that could be included in an employee handbook, but certain ones stand out as essential for law firms.

Fire at Will: Unless intended otherwise, ensure you have language in your handbook that preserves the at-will nature of the employment relationship, and that the relationship can be terminated at any time for any reason. The at-will employment doctrine would be applicable in Florida; it may differ with out-of-state employees.

Zero Tolerance for Discrimination: Have an antidiscrimination policy, including an effective and mandatory reporting procedure. Discrimination can be based upon an employee's membership in any protected class (e.g., gender, race, age, religion) and it could relate to any aspect of employment. The antidiscrimination policy should include a separate component describing and prohibiting harassment, which is a type of discrimination. The reporting procedure should clearly tell the employee whom to contact and how to file a complaint. The reporting procedure must be mandatory--ensure the language in the policy makes clear that employees must report any perceived discrimination, not "may" or "can" report such behavior. Additionally, policies instructing employees only to report incidents to their immediate supervisor are problematic--the supervisor could be their harasser. Include options for reporting harassment or discrimination to a human resources manager or a key executive.

Keep it Confidential: With lawyers charged with maintaining clients' confidences, it is especially important to have a confidentiality policy for your employees. A firm's nonlawyer staff may not appreciate the importance of such confidentiality, and might not consider the ramifications of talking about client matters--especially with "juicy" cases--outside the office. Your handbook should make clear that any discussion of confidential matters outside the office is strictly prohibited and can lead to termination. Be sure to include a document confidentiality policy, as well. If staff or paralegals take work home, it could pose a minefield of problems.

Internet Rules: Have an Internet and e-mail use policy and ensure it stresses there is no expectation of privacy with any e-mail or Internet use on company computers. Basically, the computer systems, e-mails, and...