This stuff happens all the time. If not sexual harassment, its racism, or the next thing. A disgruntled employee will have no shame in seeking retribution against you. And, of course, the state labor board will knock on your door after having taken the disgruntled employee’s accusations as fact.

Now, if the disgruntled employee’s accusations are baseless, you should be able to resolve the issue. However, the smarter play is to document issues as they occur. Then, when the state labor board knocks on your door, or worse, the disgruntled ex-employee’s lawyer, you have solid ammunition to fight back. Assuming the above scenario played out, how helpful would the following letter be:

On May 13, 2010, Jane Smith reported to me that Tom Jones made the following comment to Ms. Smith: “Hey, good lookin’”. I spoke with Mr. Jones about the comment, advised him of its inappropriateness, and advised him that such actions are grounds for immediate termination. Mr. Jones responded that he understood.

________/s/_________ (Betty Clark, Human Resources Manager)
________/s/_________ (Jane Smith)
________/s/_________ (Tom Jones)

With one letter, you have likely inoculated yourself from the disgruntled ex-employee! Imagine if the disgruntled ex-employee had multiple letters like this on his file.

Whether it be inappropriate comments, performance issues, pay, termination, etc., creating a contemporaneous written record of the event can be a life saver if a dispute comes along later. Without a written record, you have to slog through a “he said, she said” war.

Of course, while a written record of an event can be incredibly helpful, a poorly written or damaging written record can backfire. For this reason, only key employees should be permitted to write letters to the file and these key employees should be trained to simply recite facts – not opinion or speculation.

Federal and many state laws require that the customer provide the remodeler with a separate, dated, and signed personal statement in the customer’s own handwriting describing the situation requiring immediate work and expressly acknowledging and waiving the right to cancel the sale within 3 business days.
NAPAC sees far too many customer contracts with boilerplate language stating that the work being performed is due to an emergency, so no right to cancel is being offered. This boilerplate language, even if independently signed by the customer, is usually not sufficient. If relying on the emergency exception, NAPAC members should use NAPAC’s Emergency Waiver form available on NAPAC.net.

To encourage a customer to agree to pre-authorized electronic fund transfers, you can offer the customer a slight discount for using it. However, while you can offer a discount for using pre-authorized electronic fund transfers, you cannot charge the customer more on the job if he refuses.

NAPAC members can read Facebook’s® Promotion Guidelines online at http://www.facebook.com/promotions_guidelines.php, but below are some guidelines that are most commonly abused.

Promotions on Facebook® must include the following:

• A complete release of Facebook® by each entrant or participant.
• Acknowledgment that the promotion is in not sponsored, endorsed, or administered by, or associated with, Facebook®.
• Disclosure that the participant is providing information to the promotion sponsor and not to Facebook®.

You cannot use Facebook® features as a promotion’s entry mechanism. For example, the act of liking a Page or checking in to a Place cannot automatically enter a participant.
You cannot condition entry upon the user taking any action using any Facebook® features other than liking a Page, checking in to a Place, or connecting to your app. For example, you must not condition entry upon the user liking a Wall post, or commenting or uploading a photo on a Wall.

You cannot use Facebook® features or functionality, such as the Like button, as a voting mechanism for a promotion.

What are the consequences of violating Facebook’s® policies? The most likely result is Facebook® deleting your contest page. Now you have to find a new way to conduct your contest after hundreds if not thousands have already entered. You’d better find a solution; otherwise, you will have a lot of unhappy entrants…who will certainly not appreciate any telemarketing calls you place to them later on.

In a 2-0 vote, the NLRB ruled that requiring a waiver of class action participation violated the rights of employees to engage in concerted, protected activity. The NLRB noted that “When, as here, employers require employees to execute a waiver as a condition of employment, there is an implicit threat that if they refuse to do so, they will be fired or not hired.”

However, the ruling left open (1) whether an employer can require employees, as a condition of employment, to waive their right to pursue class or collective action in court so long as the employees retain the right to pursue class claims in arbitration and (2) whether an employer can enter into a class action waiver agreement to resolve either a particular dispute or all potential employment disputes through non-class arbitration.

While this decision is concerning for employers, it is also concerning how the decision was made. Normally, comprised of a 5-member board, the NLRB decided this case by a 2-0 decision because two board seats are currently vacant and the other current board member recused himself from the case. Not only did a recent Supreme Court decision hold that the NLRB needs a quorum of three members to rule on a case, but the NLRB has consistently adopted the practice of not deciding a case without the votes of at least three members of the Board.

This is almost certainly not the last word on this issue, as the ruling has gone over like a lead balloon to many in the business and legal community. Moreover, when combined with the NLRB’s new labor poster requirement, it is becoming clearer by the day that the NLRB has committed to interjecting itself into the non-union workplace.

NAPAC members that have class arbitration waiver agreements may want to consider the risks involved with their current situation.

The EPA primarily relies on tips from consumers, competitors, or workers to find those who violate the law. According to Lott, on average, the EPA receives 400 tips a month. Since inception of the RRP Rule in April 2010, the EPA has performed about 1,000 compliance inspections of job sites.

NAPAC members must recognize that now that some time has passed since enactment of the RRP Rule – any EPA grace period is over. Further, as consumers, competitors, and workers have come to learn the nuances of the RRP Rule, they are better suited to report violations to the EPA. In 2012, a lot of remodelers are going to learn how unpleasant it is to go through an EPA RRP Rule audit. Do not make yourself one of them. Make sure you are either following the EPA’s RRP Rule or (if applicable) your state’s RRP Rule.

Under the RRP Rule, the term “lead-based paint” means paint or other surface coatings that contain lead in excess of 1.0 milligrams per centimeter squared or 0.5% by weight. Unfortunately, the EPA’s definition does not make it clear whether glaze and enamel are “other surface coatings” For remodelers willing to consider an aggressive stance, it could be argued that neither glaze nor enamel technically constitutes a surface coating, and thus does not trigger the requirements of the RRP Rule.

Indeed, in the EPA’s informal Internet lead paint Q&A, the EPA appeared to support such a position, writing that ceramic tile glaze is not subject to the RRP Rule. But this is not a binding legal statement and still leaves a remodeler open to possible legal action by the EPA and by the customer.

In the case, the non-compete clause read, in part, as follows:
The Employee will not engage directly or indirectly or concern himself/herself in any manner whatsoever in the carrying on or conducting the business of exterminating, pest control, termite control and/or fumigation services as an owner, agent, servant, representative, or employee, and/or as a member of a partnership and/or as an officer, director or stockholder of any corporation, or in any manner whatsoever, in any city, cities, county or counties in the state(s) in which the Employee works and/or in which the Employee was assigned […].

Despite the fact that it seemed clear that the former employee was unfairly competing, the court ruled that the entire provision was unenforceable because the former employer sought to prohibit the former employee from working for a competitor in any capacity; not just prohibiting the former employee from engaging in activities that actually or potentially compete with his former employer. In other words, prohibiting the exterminator from being an exterminator in a competing business is not the same as prohibiting the exterminator from being an owner in a competing business – the first is okay, the second is not.

What makes this ruling frustrating is that this very same court, 22 years earlier, reviewed the exact same non-complete clause and determined it was valid and enforceable!

Now, NAPAC does not recommend that members abandon their non-compete clauses simply because a panel of appeal judges in Virginia ruled against an employer in one case. Judges make bad rulings all the time. However, this story should serve as a reminder that non-compete clauses must be reviewed from time to time in light of recent court cases and that while a non-compete clause is a powerful weapon to stop harmful conduct, actually enforcing it in court is not without risk.

• • the individual is free from control and direction in connection with the performance of the service; and
• • the service is performed outside of the usual course of the business of the employer; and
• • the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

According to Attorney Kevin Tierney of industry law firm Berenson LLP, because of how prong 2 is worded, it is nearly impossible for Massachusetts remodelers to properly classify workers as independent contractors. “While our firm has successfully defended contractors against the Massachusetts Office of the Attorney General on reclassification audits, we consider that fight to be a serious uphill battle for a client,” stated Tierney. “The installers technically need to be engaged in an entirely different business than the remodeler!”

Because many believe that the Massachusetts legislature did not intend such a drastic result when it passed this law and because the law can result in a worker being deemed an employee under one Massachusetts law while an independent contractor under another, Massachusetts recently held a public meeting to allow business owners to express their views. NAPAC attended the meeting.

The general takeaway was that too many businesses are finding it impossible to make informed decisions as to a worker’s status. Attendees also spoke of losing jobs because out of state businesses simply chose to avoid operating in Massachusetts.

NAPAC’s hope is that this recent meeting will finally provide the impetus to have the Massachusetts legislature take action on House Bill No. 1412 and Senate Bill No. 957, which would return Massachusetts to the traditional definition of independent contractor for all purposes. NAPAC is continuing to lobby for the passage of House Bill No. 1412 and Senate Bill No. 957.