1. When hiring a new employee (especially in management or sales), consider including language in the offer letter affirming that the employee has disclosed any restrictive covenants in effect from prior employers, and acknowledging that he/she will not bring any confidential documents, data, or information from previous employers to the company. Such language may protect the company from being sued if a new employee fails to disclose a restrictive covenant, or otherwise engages in a breach of duties owed to a prior employer.
2. If you are considering hiring a group of employees from a competitor, negotiate with each one separately wherever possible. In many states, employees (especially managers) owe a duty of loyalty to their employer. Acting as a go between or actively soliciting for a competitor while still employed with the prior company could raise legal issues. If you are looking to hire a team or group, it is best to hire the point person first, then once aboard that person can set out to recruit the remaining employees to come to your company (assuming that employee has no contractual restrictions on solicitation).
3. Develop a protocol for ensuring that high level departing employees do not download or otherwise misappropriate proprietary information. When notified of a resignation: (1) Conduct a review of work email for transmittal of information to personal email accounts; (2) Identify any suspicious use of removable USB devices; and (3) Conduct an exit interview that consists of asking the employee to affirm that all property has been returned, including all electronic devices and passwords.
4. Handbook policies on confidentiality and the return of company property are appropriate, but a breach of a policy is not actionable, and does not entitle the company to injunctive relief (i.e. an order requiring compliance). Consider requiring a confidentiality agreement for any employees who have access to important company data or property that could be harmful if disclosed to a competitor, and you may want back if not returned.
5. For key personnel, you may need more than a confidentiality agreement to protect the company’s interests. In those cases, consider the use of a non-compete and/or non-solicitation agreement (which can be coupled with the confidentiality portion into one document). A non-compete provision restricts the employee from working for a competitor for a certain period of time in a defined geographic area. Such covenants must be reasonable, and narrowly tailored to protect the client’s interests. A non-solicitation provision does not restrict the employee from working for a competitor, but restricts certain activities for that competitor, usually soliciting company customers or employees for a period of time. Like a non-compete provision, a non-solicitation covenant must be reasonable. For example, the restriction should only apply to customers with whom the employee actually had contact or access to confidential information, as opposed to a restriction from contacting all of the company’s customers.

Non-compete litigation is state specific and the laws can vary widely from state to state. For example, Texas allows reasonable restraints on competition, while California (and recently Massachusetts) outlaw such agreements. It is advisable to have any agreements reviewed for enforceability in the states where such agreements are likely to be enforced.

So, what are some best practices?

1. Quality over quantity. Evaluations don’t need to be 10 pages long. Short and to the point is better, especially if that format allows the author to provide some specific examples to support the assessment.
2. Avoid evaluation inflation. What does “exceeds expectations” mean if it is third from the top and right above “average?” To a jury it means the employee is doing a good job, but in your organization it might mean that the employee is one step from being fired.
3. Be specific. Multiple choice rankings work well in large organizations because managers do not like to write narratives, and the rankings allow the accumulation of data that can be useful in establishing trends and metrics. That said, every evaluation should have some narrative! Give examples of what the employee did well, or not so well, and some feedback on how to improve.
4. Evaluate the Evaluator. HR has an important role in ensuring that evaluations are done correctly. That means more than just the mere fact they are completed on time. If a supervisor is giving everyone in his or her department high or low marks, that should raise questions. Similarly, if there is an employee whom everyone knows is having trouble, the evaluation should reflect those problems.
5. Delivery is Key. Lastly, the paper evaluation is only half of the process. Delivering the message is equally important and should not be overlooked. Make time to have a meaningful meeting and not just a five-minute conversation. Reviews should include both praise and constructive feedback on areas for improvement. Ask the employee to provide his or her views on strengths and weaknesses. Many times they will identify the same weaknesses, which softens the blow.

The holidays are a busy and stressful time for everyone. Many companies have moved away from evaluations at the end of the year for this reason, but if not, it is important for this consequential process not to get lost in the shuffle. Supervisors must understand the significance of the process, and the need for both consistency and fairness. Sugarcoating helps no one, and giving everyone high marks diminishes the performance of the organization’s super stars. Balancing all of these interests is critical to creating a successful process that measures and rewards performance, and also protects the integrity of the process in case the company is forced to justify its decisions in litigation.

1. Compliance with Chapter 22 of the Texas Labor Code: This law protects from discrimination employees who are absent because if an evacuation order. This law has certain exceptions, including emergency services personnel or those required to provide services for the general public during emergency situations. That said, companies who require such employees to work during a storm must provide emergency shelter.

2. Payment for Employees Who Are Absent Due to Weather: The FLSA treats exempt employees differently from non-exempt. Non-exempt employees must only be paid for actual hours worked. Exempt employees, however, must be paid if the work site is closed or unable to open because of weather for less than a full workweek.

3. On-Call/Waiting Time: Weather events often create unique circumstances that don’t fall neatly into existing policies. Employees may be stuck at work waiting for the weather to clear before they go home – is this compensable time? What if employees are on-call to return to the office after the storm has passed. Is this compensable “on-call time?”

4. Protected Leave Under FMLA: Disasters often create family issues, especially where there are elderly or sick family members who must be moved or cared for during such an event. These situations could trigger protection for absences under the FMLA.

5. Payday: No one wants to miss a paycheck. Make sure your company has a contingency plan in place to communicate with employees and maintain personnel functions like payroll and benefits processing even during a disaster.

Although the Obama administration’s effort will be largely symbolic, and have no legal effect, it is important as it may be the first in a series of steps to apply pressure to states or employers that allow restrictions on employee competition…

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1) Can an employer require an employee to work during a mandatory evacuation? What if the employee does not come back and turns the evacuation into a vacation?

2) Is an employer required to pay employees who miss work because of weather events like a hurricane? Does it matter if they are exempt or non-exempt ?

3) Can an employer require employees to use accrued vacation time if the business is closed for a hurricane?

All of these questions, and more, are answered in Cozen O’Connor’s “HR Guide for Hurricane and Disaster Preparation”, which is linked here. It is important to note that this guide is primarily aimed at Texas employers. If your business operates in multiple states along the Gulf Coast, you should seek legal advice regarding the specific laws in each state which may apply.