Legal Services

Get answers to a variety of legal questions in general business law, immigration law, intellectual property law and labor and employment law.  View articles and news pertaining to small business law or even get a free fact-based answer to your legal quandary directly from Bodman Law Firm.

Bodman Law Firm Legal Services


Legal ServicesEver have a legal question pop up?
Not everyone has the training or knowledge to grapple with complex legal issues. Bodman Law Firm will provide you with a free, fact-based answer to your legal question. 



Employee-owned personal electronic devices: Think ahead or lose control

Article courtesy of SBAM Approved Partner ASE

By Michael J. Burns

How often have you looked around the table at a business meeting to see one or more employees gazing intently downward, fingers furiously punching away on their personal hand-held devices? Hopefully, they are keeping up with their work this way; but, assuming they are, can you be sure that is a good idea? More businesses today permit employees to use their personally-owned equipment to access work, but how often do they realize the legal and security implications of that activity?

According to a BLR report of a recent survey by YouGov and Research Now, 67% of surveyed companies have no policy covering their employees’ use of their personal devices for work purposes.

What happens to company data and information, and even trade secrets, that find their way onto an employee’s electronic device and then leave with the employee to another job? Or to sensitive information that is hacked by an outsider from the employee’s smartphone? Or to information normally purged from the company’s system in a lawsuit that turns up instead on an employee’s personal device?

Employers are now confronted with several dilemmas around the value derived from the convenience of employees using their own devices—paid for by themselves—to work more efficiently. Typically the employer does not pay for the purchase of these devices, and many do not pay the usage fees even though they may have arranged for the device to “sync” up with the company system. Under those circumstances, who owns or controls the information and data on the devices when push comes to shove?

Suffice it to say, if an employer does not have a policy and certain controls in place, it is not the company that owns or controls what data and information gets placed in that device.

Companies have adopted three types of policies to address these concerns about employee-owned electronic device policies:

Shared Management. Company policy states that an employee accessing business resources from a personal device gives the company the right to manage, lock, and wipe that device. The policy is normally put into a written agreement.

Corporate Ownership. The company owns and buys the device. If employees don’t like the company-issued device, they can buy their own personal device that has no corporate access.

Legal Transfer. The company buys the device from the employee. Normally, the company will purchase the device for some nominal amount (e.g., $5) and give the employee the right to use it for personal purposes. The employee has the right to buy the device back for the same price when he or she leaves the company.

If a company wants to have access to all communications the only way to guarantee control over the device and information by the company is to buy the device. Otherwise, employers need to determine what their tolerance is to the security risk. What is the sensitivity of the information being handled? What security concerns exist in the company’s business/industry?

Short of owning the device outright,  employers should fashion policies that address the following:

  • Initiate a “wipe” policy. This is done by requiring employees download software that allows the company to access the device (remotely even) and remove the company data.
  • Require written agreements that confirm employee’s understanding of the risks and responsibilities.
  • Make the use of the company system by personal electronic devices exclusive only to designated persons or positions.
  • Require employees to submit their devices to periodic inspection and make device inspection part of the exit interview. (This should be agreed to in writing and in advance.)

EEOC releases updated enforcement guidance on the consideration of arrest and conviction records in employment decisions

Article courtesy of SBAM Approved Partner Clark Hill PLC

By: Carly Osadetz
The Equal Employment Opportunity Commission (EEOC) has issued an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII to consolidate and update prior EEOC opinions. The Guidance explains that employers who consider the criminal history of applicants and employees may face Title VII liability under one of two theories: 1) a disparate treatment claim, which asserts that the employer treated individuals with a criminal record differently based on their race or national origin; and 2)  a disparate impact claim, which asserts that the application of a neutral criminal history policy disproportionately disqualified a protected group and the policy is not job-related and connected with business necessity.
The main focus of the Guidance is on disparate impact discrimination. The Guidance states that an employer's neutral policy may disproportionately impact some protected individuals, and may violate Title VII if the policy is not "job related and consistent with business necessity." This requires the employer to show that its policy effectively links specific criminal conduct and its dangers to the risks inherent in the job. The EEOC supplied two examples of situations that will meet this "job related and consistent with business necessity" threshold:
  • Where the employer validates the criminal conduct exclusion for the position in question under the Uniform Guidelines and Selection Procedures; or
  • Where the employer considers the nature of the crime, the time elapsed since the conviction and the nature of the job applied for, and then provides an opportunity for individual assessment for those identified by the screen to determine whether the policy as applied to those individuals is job related and consistent with business necessity.
Individualized assessments are not always required but the Guidance repeatedly emphasizes that that blanket, across-the-board screening processes are more likely to violate the law.
It is the EEOC's position that an exclusion based only on an arrest, as opposed to a conviction, record is never job related or consistent with business necessity. However, the Guidance explains that an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position.
The Guidance also explains that even if state or local law requires employers to prohibit or restrict the employment of individuals with criminal records, an employer's policy must still be "job related and consistent with business necessity." The fact that an employer's policy was adopted to comply with a state or local law or regulations will not always shield that employer from liability under Title VII.
The Guidance suggests a variety of "best practices" for employers, including the following:
  • Eliminate policies or practices that automatically exclude people from employment based on any criminal record.
  • Train managers, hiring officials and decision-makers about Title VII and its prohibition on employment discrimination, and on how to implement the policy and procedures consistent with Title VII.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. The policy should identify essential job requirements and the actual circumstances under which the jobs are performed, along with specific criminal offenses that may demonstrate unfitness for performing the jobs.  
  • When asking questions about criminal records, limit inquiries to records for which ex

Understand employer duties regarding retirement plan expenses

Article courtesy of SBAM Approved Partner AdvanceHR

A recent U.S. District Court ruling offers a timely reminder of the importance of maintaining proper procedures when administering qualified retirement plans. The consequences of acting inconsistently with stated policy, perhaps even with good intentions, can be costly indeed.

Much attention has been focused in recent years on investment management and recordkeeping fees paid by retirement plan participants -- that is, employees and retirees.  Specifically the focus has been on the level and the clarity, or lack of clarity, of those fees.

After some delays, these concerns led to new regulations from Department of Labor (DOL) that require plan service providers to furnish certain information by July 2012. This information, said  the DOL, will "enable pension plan fiduciaries to determine both the reasonableness of compensation paid to the service providers and any conflicts of interest that may impact a service provider's performance under a service contract or arrangement."

Some vendors have already been meeting the new requirements.  A related set of DOL regulations, which govern plan information provided by vendors to plan participants, will kick in by the end of August for most plans.

What Not to Do

How can employers get into trouble with respect to retirement plan costs -- with or without the benefit of the new fee disclosure regulations? The recently decided case of Tussey vs. ABB Inc.  (U.S. District Court for Western District of Missouri), offers a good illustration of what not to do.

Trustees of a retirement plan of ABB Inc., a manufacturing firm,  were found to have breached their fiduciary duty to protect the interests of plan participants. Among other things, the trustees failed to monitor the fees it was paying to its primary 401(k) vendor (Fidelity Management Trust Co.) The case was brought as a class-action suit on behalf of plan participants.

At the heart of the case is the plan trustees' failure to adhere to their own investment policy statement (IPS), which is the essential blueprint dictating how investment and related decisions are to be carried out.  The term "IPS"  cropped up more than 50 times in Judge Nanette K. Laughrey's 81-page ruling, indicating the critical importance of the document.

Eye on Fee Structure

In one fateful decision, the trustees accepted a change to the formula used to determine recordkeeping fees. Specifically, the plan switched  from simply paying a flat per-participant charge, to a system in which fees came out of asset management fees, and rose as plan assets grew. The result of the arrangement was recordkeeping charges rose by about 200 percent over time as plan assets rose, yet actual recordkeeping services provided did not grow with plan assets. In other words, the recordkeeper appears to have enjoyed a windfall at plan participants' expense.

Also, plan trustees never bothered, initially, to benchmark their plan costs -- further evidence of a lack of the prudent behavior required of plan trustees. They later hired a consultant to analyze their cost structure. The analysis indicated ABB's plan was paying abnormally high fees -- yet trustees failed to do anything about it.

Disregarding the Investment Policy Statement

Another failure to pay heed to the plan's IPS occurred when trustees dropped one investment manager and switched to a new one. The change was made without satisfying the IPS' detailed processes for evaluating the performance of the fund being dropped, and also without giving full consideration to more than one alternative fund manager.

Trustees also committed a fiduciary breach, the court con

Smart hiring decisions begin with asking the right questions

Article courtesy of SBAM Approved Partner AdvanceHR

Bad hiring decisions can be costly, especially for small employers who lack the staff "cushion" to absorb the impact of non-performers and turnover. Some of the costs are calculable hard dollar expenses while others are hard-to-measure. The intangible costs may include damaged customer relations, missed business opportunities and low morale among co-workers who bear the brunt of another employee's shortcomings. Avoiding these costs can be accomplished by investing time upfront in better hiring techniques.

Why do employers make bad hiring decisions? Recognizing a few of the common culprits sets the stage for embracing what may be a better hiring process. Here are some of the main reasons, according to authors Lori Davila and Louise Kursmark.

  • Not really knowing what you are looking for: A failure to carefully think through the specific skills, behavioral patterns and motivators that are key to the job you are trying to fill.
  • Inadequate interview preparation and poor choice of questions: Giving short shrift to gearing up for an interview almost always will result in limited insights on the job candidate, and thus an uninformed hiring decision.
  • Hasty hiring decisions: The temptation may be strong for a manager to make a snap decision when time is tight, especially for managers who rarely have to hire. But the results can be costly.
  • Looking for a clone: People tend to hire people -- frequently unconsciously -- who they have something in common with, or who remind them of themselves. It's called the "halo effect," and it creates problems if you need someone with other characteristics, or simply are blinded to the candidate's shortcomings.
  • Lacking a formal interview process: Effective interviewing amounts to a technical skill; informal, subjective approaches often fail.
Additional hiring issues are described in detail by Davila and Kursmark in their practical primer titled How to Choose the Right Person for the Right Job Every Time (published by McGraw Hill). They include using only one interviewer, hiring over-qualified candidates who will be insufficiently challenged, and failing to check references thoroughly.

Behavior-Based Interviewing

Davila and Kursmark place great emphasis on the use of behavior-based interviewing. This means posing questions that are not hypothetical, but instead elicit concrete examples of how a job candidate has handled situations in the past. That approach may reveal whether a candidate has a track record that's appropriate to the job you are trying to fill.

This is not new, but still not universally applied. Behavior-based interviewing evolved years ago out of a recognition of the limitations of traditional theoretical interview questions, such as "What would you do if a customer or supervisor asked you to do something unethical?" Behavior-based interviewing, instead, requires asking the candidate to provide an example of how he or she responded to a situation or scenario described by the interviewer.

"Pre-selected questions, carefully correlated with the essential functions of the job, (emphasis added) allow candidates to describe specific examples of their past behavior," the authors explain. The broad job qualification parameters should cover not just technical skills and knowledge, but also "behaviors and performance skills" as well as motivation.

Today, coming up with probing behavior-based interview questions has become a burgeoning industry; "Google" the phrase and a myriad of vendors fill your computer screen. Davila and Kursmark devote a chapter of their book to such inquiries and provide 401 such questions, organized according to 50 competencies the interviewer may seek to pr

Capitalize on the Power in Exit Interviews

Article courtesy of SBAM Approved Partner AdvanceHR

As with some other standard human resource activities, exit interviews sometimes are carried out almost on a perfunctory basis, resulting in missed opportunities -- or worse.  There is a better way. This article provides an overview of how employers can gain helpful insights about their businesses, as well as ways to turn what might otherwise be a negative situation into a positive one. 

Why conduct exit interviews?

Ideally, the answer is better than just, "we've always done them." Even with a basic goal in mind, employers may not take full advantage of frank conversations with employees on their way out. According to Robert A. Giacalone, Ph.D., a professor at Temple University's Fox School of Business, the benefits of exit interviews fall into three categories.

Diagnosis and strategy:  This involves using insights gained from interviews to identify workplace problems and develop ideas on how to fix them. Typical issues include general problems like high turnover or a need for better training in some areas, as well as more specific problems like theft or security breaches in particular departments or worksites.

Public relations: Employees who leave with favorable attitudes, believing they have conveyed important information that matters, can become strong advocates for your company within the community, even after they're gone.

Positive separations: This goal is purely to benefit departing employees, particularly those leaving under unhappy circumstances, by allowing them to vent and come to terms with the situation.

Employers often fall short of achieving these benefits either because they fail to do anything with the data they collect from exit interviews, or more fundamentally, don't have clear goals in mind for having them in the first place.

Are They Being Honest?

Recently Dr. Giacalone conveyed another challenge, in a paper published by LPR Publications. That is, departing employees are not always entirely forthcoming about their reasons for leaving. For example, it may be easier to say they have found a job with better pay than to tell the uncomfortable truth that they experienced sexual harassment or an abusive supervisor or other issue. Yet those are precisely the kinds of situations employers urgently need to know about, and address.

What's to be done?  Giacalone's recommendations begin with developing and using "methodical, scientific approaches" that yield reliable data. Too often, employers use informal, intuitive methods that may have limited statistical validity.  The marketplace offers a variety of vendors with tools for this purpose. A simple Google search for "exit interview" will turn up many choices. Naturally, the size of your company will influence decisions about how much to invest in outside resources and the requisite level of sophistication.

Once a reliable questionnaire and interview procedure have been established, employers should create a system to ensure that the data will be collected and used consistently throughout the organization -- an essential step for statistical reliability. While information learned from an individual departing employee may be helpful, pulling interview results together and analyzing them effectively will provide a much clearer "big picture" view of what's happening.

Continuous Quality Improvement

Giacalone also urges employers to keep at it -- both in conducting the interviews, and in improving the process along the way. That involves establishing goals and criteria for judging whether the effort is worth the cost in time and dollars. Regularly evaluating the effectiveness of the effort and impro