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The (Self) Protection Racket
Staying on top of Connecticut compliance issues is just good business
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Business New Haven
11/26/2001
By: Mimi Houston
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Darlene, your receptionist of five years, has just come to you with a complaint. It seems Ronald in marketing made a lewd remark in the lunchroom when just the two of them were pouring their morning coffee. Ronald has only been there a few months, and while you trust Darlene's judgment, you just don't know what your next step should be.
Alex, your HR man, has just found the perfect applicant for a job your company has been trying to fill for months. But she is in a wheelchair, and you don't know if your office spaces comply with ADA. Fears of lawsuits already begin to enter your imagination. How does one go about addressing this seemingly overwhelming and expensive problem?
Scenarios such as these can take up an exorbitant amount of time in a manager's or business owner's schedule. Not handling situations correctly can have drastic results and invite lawsuits, damaging publicity and devastating company losses. In today's business times, staying on top of the law on Connecticut's compliance issues is paramount to doing good business.
Employee Handbooks Write the Way
While the law does not require businesses to have one, for many companies, an employee handbook is the backbone of their compliance structure.
“An employee handbook is extremely important,” asserts Bonnie Stewart of the Connecticut Business & Industry Association (CBIA). “With it, you know you have effectively communicated your company's policies. If, for example, you need to terminate an employee for violating a policy, you can prove that policy exists by having it right there in the handbook.”
Once taken on, the handbook should become the bible of your business. Here is where your company establishes clear operating standards that will reduce internal disputes, promote consistent management policies, inform all new employees of your company's policies and, perhaps most importantly, reduce the chances of any unintentional illegal behavior.
Did Ronald in the lunchroom read his handbook? Did he even receive one? It's important to have each employee sign an agreement that they did receive it, and that they understand it is their own responsibility to read, understand and comply with all the information it contains.
While it may be a noble thing to take this project on independently, few brave souls would recommend it.
“We've done hundreds of employee handbooks,” says Christine Grochowski, an attorney with the law offices of Farrell, Leslie & Grochowski. “We help employers draft their own handbooks from start to finish.”
With all the issues you need to cover in your handbook, getting a lawyer who specializes in employment law to set the guidelines is a prudent thing to do. It's a great way to cement a working relationship with your attorney, and the relationship should continue to grow along with your business.
“It is a good idea to have a lawyer you can call at any time,” continues Grochowski. “A two-minute phone call can sometimes save you from a huge problem down the road.”
“We also advise clients on matters such as sexual harassment prevention, payment of minimum wage, worker's compensation and discrimination,” Grochowski explains. “Sometimes it's something as simple as making sure a business has displayed all of the appropriate posters that the Department of Labor requires.”
Grochowski urges business owners and managers to take part in any employment-law seminars hosted by area chambers of commerce and other business organizations.
CBIA members can take advantage of an employee handbook review or development service. One thing stressed by CBIA is to include a clearly worded and prominently displayed disclaimer so that no part of the handbook can be used against the company.
The disclaimer must state that the handbook is not an employment contract, nor is it a complete description of your company's policies or practices. Be sure to state that the employer or employee can terminate employment at any time for any reason, with or without notice. The disclaimer must also make it clear that your company reserves the right to edit, revise, supplement or discontinue any policy at any time for any reason -or for no reason.
Darlene vs. Ronald
A clear statement of exactly what sexual harassment is and how it will be dealt with should comprise a good portion of your handbook. This means Ronald should know whether or not he stepped over the line. If he hasn't read about it, and if he is on a management level, he should certainly have attended a seminar on the subject within six months of his hire date, as mandated by Connecticut law.
“We do a lot of sexual harassment prevention training,” says Stewart. “We also do a lot of seminars on employment law, diversity training and drug-testing, which is really big in Connecticut since a lot of companies here are required to test employees. Connecticut has a lot of transportation industry, defense, air and nuclear industry. They all require drug testing, and managers really need to know when you have to do it, when you can't do it.
“The training is always a good thing to have,” she adds. “If you see signs of possible drug use in an employee, you can't just say someone here got hurt, let's test him. And you don't want to wait three weeks until that next seminar on drug testing takes place.”
Stewart stresses that all companies should go undertake an HR audit.
“Go through a checklist once a year,” she advises, “to make sure you are doing everything okay. If there are problems that show up, address them. One thing we always tell employers is: document, document, document. Don't ever think you can document too much. You should have enough written about a particular situation so that if an outside person-someone who knows nothing about your company, nothing about the type of business you do - can completely understand what's going on. Remember, when a ruling has to be made, it's not someone within the company that will be making it.”
Stewart suggests businesses log onto CBIA.com to help them get up to date on all the state laws and requirements for Connecticut businesses.
“We do a lot of HR audits,” she explains. “But companies really can audit themselves. Get on the Web site and start with 'Tools & Training' - just go through our checklists. The information is really overwhelming, so just go through it a little at a time, maybe just start with getting all your posters up and in the right places. There are a lot of requirements, and we as employers need to provide those postings.”
OSHA at My Door
In 400 B.C., Hippocrates recognized and recorded lead toxicity in the mining industry, thereby giving birth to the field of industrial hygiene. As impressive as that may be, his discoveries are tarnished by the fact that nothing was subsequently done to protect workers. They were seen as expendable resources.
Not so in today's times. While advances in worker-safety issues were slow in coming, they are now diligently enforced.
“We offer a consultation - a free voluntary service to any employer, to go in and help identify and correct any problems,” says Rich Palo, of CONNOSHA. “As long as these services are requested by the business owners, there are no penalties and no citations given for anything found.”
Palo agrees it's a good idea for businesses to take advantage of this service before an accident occurs, or an OSHA representative arrives, unannounced, at your door. The service applies to all businesses in the state, both public and private, even though the private sector is under the jurisdiction of federal OSHA.
“We work with all types of businesses,” assures Palo. “Whether it's a dry-cleaning establishment that needs to reduce overexposure to the cleaning agents, a welding shop that must protect workers from welding fumes or a manufacturing plant that needs to address its overexposure to noise from heavy machinery.”
It's important to note that complete privacy is respected in these visits, and that businesses will not be penalized for citations found.
“Our consultants don't talk with our compliance people and our compliance people don't talk with our consultants,” assures Palo. He also assures businesses are given plenty of time to get their facilities up to snuff if any violations are pointed out.
“We recommend this service very strongly, especially to the small-business owner who can't afford to have health and safety professionals on staff,” continues Palo. “But the request for the service must come from an owner or a member of the highest level of management.”
ADA for All
Back in 1990, when the Americans with Disabilities Act (ADA) was passed, business and building owners were scrambling for information to get their structures up-to-date, mainly to avoid the lawsuits that everyone felt were looming. As these lawsuits didn't materialize, at least in the anticipated numbers, ADA experts have noticed a growing lack of concern for these mandated compliances. But if your company is participating in this lack of concern, you could be paving the way for deep trouble.
“ADA is a civil-rights legislation,” explains AnnMarie Harmon, AIA, (American Institute of Architects) of Bruce Spiewak, AIA, Consulting Architect in West Haven. “It states that it is a civil right for all citizens to be able to work wherever they want to. It is therefore the employer's responsibility to make reasonable access for every employee.
“If an employee needs to have a chair that is lower to the ground so they can type better - or whatever it takes to provide proper posture - it's the employer's obligation to provide that.”
Harmon suggests business owners designate a senior staff member as the resident ADA expert. That person should attend ADA seminars yearly to become familiar with the ongoing additions to requirements that are facing all business owners today.
“Building codes are constantly developing, based on responses to fires and structural accidents,” Harmon continues. “We're not saying that you should be aware of all of the code violations. I hear a lot of people saying 'Look, my expertise is sales and marketing, that's what I do.' What we're saying is that you just need to have the awareness that you can't do it yourself. That you need to seek out the proper people that have the expertise.”
Harmon's company offers seminars through organizations like area chambers of commerce, Rotary clubs and downtown business associations. But she urges business owners to take advantage of any ADA training seminars they see advertised. “We say, if you find a seminar on this, grab it.”
“We present the ADA laws in terms of what they really mean for businesses,” she asserts. “It's important just to raise the level of awareness so we're no longer hearing, 'Why do we have to have all those handicapped spaces? Why do we have to have all that space in the bathroom?'”
Harmon says businesses are certainly more aware of their need to comply today, but she stresses the need for everyone to understand the issues, lest they risk a huge out-of-pocket loss.
“Title III of the ADA act states that all architectural barriers must be removed from public spaces,” she explains. But this can be tricky, for many businesses will see themselves not fitting into this category.
“In fact, if you have a business, and you bring in people from the outside to, say, give a seminar to your employees, those people are the public,” Harmon informs. “Now you are obliged to have a door that a person in a wheelchair can access. A drinking fountain that is handicap-accessible, the door to the conference room where that seminar is being held must be accessible.”
You get the picture. Suddenly even the smallest of operations needs to stand up and pay attention to the law.
“It's a good idea for businesses to get a professional in to do an assessment of their office space before a lawsuit happens,” warns Harmon. “If, in the case of a lawsuit, you can say, 'Look, I hired an architect to do a survey and give me a list of compliances to address,' the courts will say this person has made a good-faith effort. Let's give him some time to comply - a couple of years. But to those who've done nothing, the court will say you need to comply - now. We don't care how much it costs.”
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