If you are like many HR professionals, when you are tasked with preparing documents like offer letters, noncompete agreements, or separation agreements, you start by pulling out a document that you have used in the past and then cutting and pasting as needed. That is not necessarily a bad approach, but even if the document that you use as a template was drafted by your labor and employment counsel you can’t simply assume that it accurately reflects the current state of the law.
For one recent example, take the EEOC’s pending lawsuit against CVS Pharmacy, which we discussed in detail in a prior alert. The EEOC alleges that CVS’s severance agreement violates Title VII of the Civil Rights Act of 1964 by discouraging employees from filing charges of discrimination with the EEOC—despite the fact that the agreement expressly stated that employees retain the right to do so. The most remarkable thing about the EEOC lawsuit against CVS is just how un-remarkable the CVS severance agreement was, and how many other employers use language very close to that contained in the CVS agreement in their own severance agreements. In other words, the CVS lawsuit signals that, at least as far as the EEOC is concerned, many employers are in violation of Title VII simply by continuing to use certain garden-variety language in their severance and release agreements. For now, the safe course for employers who wish to avoid litigation with the EEOC is to take heed of the EEOC’s litigation position and revise their separation agreements accordingly. However, that strategy may have to change quickly depending on how the CVS lawsuit is resolved. Because the law on this issue is likely to continue evolving, simply dusting off an old severance agreement to use for an upcoming layoff or employee separation may be a very bad idea.
The same can be said for even basic employment forms such as an employment application. As we recently reported, Illinois will likely soon join a growing number of states that restrict employers from asking candidates for criminal history information before the candidate is either selected for an interview or given a conditional offer of employment. Consequently, Illinois employers that include general questions about criminal convictions on their employment application forms will need to revise their applications and selection processes no later than January 1, 2015 to comply with the new law.
Guidelines for Employers
Given the potential legal consequences of using outdated HR documents, it is well worth a minimal investment of time and resources to ensure that such documents reflect current best practices. There are several relatively easy steps that employers can take:
Severance or release agreements for groups of employees (such as for a reduction in force) can be highly technical, the law in this area is evolving rapidly, and mistakes can easily lead to class-action lawsuits. Always send these agreements to experienced employment law counsel for review before issuing to employees. The job that you save may be your own.
Establish a regular schedule for reviewing form documents like employment applications, non-compete and confidentiality agreements, release agreements, offer letters, and FMLA forms and letters. Most documents should be reviewed and if needed updated at least annually. Changes in your organization or new legal developments may dictate in favor of more frequent reviews.
Sometimes even innocuous revisions can create legal issues. If you modify an agreement or form that was drafted or previously reviewed by legal counsel, run the modified document past legal counsel to make sure that your modifications do not create any legal issues.
Make sure that everyone in your organization is using the current forms and templates. Designate a specific folder on a shared drive, a page on your company intranet, or some similar location as the repository for current forms, and follow up regularly to make sure that your team is using the correct versions.
Keep up to date on legal developments by, for example, continuing to read alerts like this one. If you have a team, consider delegating responsibility to specific people to stay up to date on evolving issues like employee background checks or separation agreements.