"Measure Twice" – Part 2: Decisions During Employment


This article is the second in a series of three articles encouraging employers to “measure twice” in their employment practices and will address decisions made by employers during employment. Anyone who has worked in construction or engaged in a handiwork hobby knows the adage: measure twice and cut once. The first part in the series dealt with issues arising during the hiring process and can be found here. The third and final part in the series will address issues that come up at the termination of employment.

It would be impossible to cover all of the issues and decisions that arise during employment. The purpose of this article is to remind employers that when making decisions that will affect the employer’s relationship with its employees, employers should “measure twice” before making the decisions. By doing so, employers may not only reduce potential liability, but also avoid other harm to their business.

One of the key areas where employers can and should take time before making decisions is with implementation of new or revised policies. Even though many employers spend time drafting policies or employee handbooks, the introduction of new or revised policies to the workforce should be done in a way that respects the affected employees, considers the timing of the roll-out, and considers the ramifications that the new policies will have on employees. Just this week, Yahoo! introduced a new policy that has received much media attention and scrutiny. The policy eliminated their work-from-home arrangements and requires all employees to work from a Yahoo! location. The “confidential” and “internal” memorandum regarding the policy has quickly spread through the media. Policies that impact employees should be particularly scrutinized before distribution.

Many critics of the Yahoo! policy focused on the method and tone of the communication distributing the policy, as much as they derided the new policy. While employers do not need to rationalize their policies or communications to the general public, it is helpful to ask the question: if this communication were to be on the front page of the newspaper, how would it be received? Communications with employees are a key component of employee morale and represent one of the most important decisions employers make. Taking the time to ensure that communications are conveyed appropriately can impact employee morale.

Finally, the timing of communications is important to consider in preventing potential liability. Often times employers will create a new policy or issue a communication in response to some motivating occurrence. Reacting to an employee complaint or other motivating occurrence may be the right decision, but in some situations it could be seen as retaliatory or punitive. If a new policy is being implemented as a result of legal action or a threat of legal action, it is always best to work with legal counsel in drafting the policy or communication.

Communications are critical in the workplace, but how employers communicate with employees can be as important as the content communicated. Employers should “measure twice” with all communications, particularly considering the message they are seeking to communicate, how the audience will receive the message, and the impact on everyone involved. Working with legal counsel to ensure that communications meet an employer’s goals without the risk of liability (or other harm to the company or its reputation) is an important business practice and part of measuring twice.

Concluding the Measure Twice series, our next update will address areas of caution at the termination of employment.

If you have any questions regarding communications with employees, including implementation of new or revised policies, or any matters relating to employment, we invite you to contact one of our attorneys:

Daniel F. Pyne III
Richard M. Noack
Ernest M. Malaspina
Karen Reinhold
Erik P. Khoobyarian
Shirley Jackson

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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