The article below is a good reminder if what can happen when we fail to remember what we have told an employee in their annual/semi-annual evaluation.

More often than not, an evaluation turns into a document that says what we want our employee to be. Often evaluations are not honest. A supervisor believes if he says nice things about an employee; hard worker, productive, honest, creative, etc., that the employee will do everything possible to mirror what the supervisor has written. This does not happen, the employee doesn’t change at all.

Here’s the problem, three months after the evaluation the employee is discharged for not being lazy, unproductive, dishonest, uncreative, etc., and the employee uses the past performance evaluation in his law suit for wrongful termination.

10th Circuit: Positive Evaluations Raise Doubts About Employment Decision

A performance-based employment decision that is inconsistent with the employee’s past performance evaluations may be evidence of pretext, the 10th U.S. Circuit Court of Appeals held.

In 2005, Boeing Co. sold its Wichita, Kan., aircraft plant to Spirit Aerosystems Inc. Because Spirit had no employees of its own, it relied on Boeing’s supervisors to recommend which Boeing employees to hire after the takeover. Walt Galloway, supervisor for the loft tooling unit, recommended that Spirit hire three of the five employees from that unit. James Woods, who was not selected for hire, sued both Boeing and Spirit for age discrimination under the Age Discrimination in Employment Act.

Woods had worked in Boeing’s Wichita plant since 1978. Galloway became Woods’ supervisor in April 2003. In his only evaluation of Woods’ performance, Galloway rated Woods as “met all expectations” in all categories including skills, knowledge, quality, productivity and team abilities. Galloway also wrote “you have performed well” and “keep up the good work.” Two of the other members in the loft tooling unit received better ratings than Woods, and the remaining two received the same ratings as Woods.

When Spirit asked for hiring recommendations, Galloway selected 17 of the 24 employees he supervised. All seven of the employees not selected were 48 years old or older. In Woods’ unit, Galloway recommended that Spirit hire the youngest of the three employees with the lower performance ratings.

According to Galloway, Woods was not recommended for hire because of his “limited skills/low quality/low productivity/marginal teaming abilities.” Woods claimed he was not recommended because of his age; he was 55.

The trial court dismissed Woods’ claims, and the 10th Circuit reversed.

The court stated several reasons to question the truthfulness of Galloway’s explanation for not recommending Woods. First, Galloway used the same criteria to recommend against hiring Woods that he used to conclude in his evaluation that Woods was meeting all expectations. Second, Galloway’s assessment that Woods had “marginal teaming abilities” was not based on any objective criteria. Third, all of the employees that Galloway recommended against hiring were 48 or older.

The court held that a jury must evaluate these facts and decide whether Galloway’s reasons for recommending against Woods’ hire were truthful or whether the decision was really based on Woods’ age.

The 10th Circuit’s decision was unanimous, but one of the judges on the panel expressed reluctance. Judge Anderson stated that “[t]his is a very thin case,” and although he agreed with the result, he could not find any prior cases with such little evidence of discrimination.

Woods v. The Boeing Co., 10th Cir., No. 07-3358 (Dec. 8, 2009).

Professional Pointer: Plaintiffs in employment discrimination cases often point to past positive evaluations to show that the employer’s unfavorable action was dishonest or “pre-textual.” Because it is a natural human tendency to sugarcoat and avoid confrontation, managers must be trained, monitored and encouraged to give accurate, candid and honest feedback to employees in performance assessments. When making a termination decision based on performance, prior performance evaluations should be carefully scrutinized for inconsistencies. If the employer makes a decision based on a decline in performance, the employer should document those changes. This case is a stark reminder that courts will often allow an employment discrimination case—even a weak one—to go to trial if the employer’s reasons for making an unfavorable decision are inconsistent with prior documented performance assessments.

Michael A. Warner Jr. and Abizer Zanzi are attorneys with Franczek Radelet PC, a Worklaw® Network member firm in Chicago.

This article should not be construed as legal advice.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

5 Frequently Asked Questions About The Exempt Employee Definition

Some of the most common questions received cover the definition of an exempt employee under the Fair Labor Standards Act (FLSA). The definition is important because an employer must pay overtime to employees who work more than 40 hours per week unless an employee meets the definition via certain tests regarding job duties and salary.

The FLSA provides exemptions for executive, administrative, and professional employees; outside sales personnel, certain specialized computer personnel; certain highly compensated employees; certain retail sales employees; and employees covered by the Motor Carrier Act (MCA). In order to qualify as exempt from the overtime pay requirements, an employee must pass three tests: the salary level test, salary basis test, and duties tests.

Here are some common questions about exempt employees.

Q: Our company’s business has fallen off dramatically. Can we require that each exempt employee take a one-week unpaid furlough before the end of our fiscal year?

A: Unfortunately, many employers are in the position of looking for ways to cut costs, and many are opting for furloughs as a means to cut costs without cutting jobs. The Department of Labor recently released several opinion letters addressing how furloughs affect exempt employees. The following are the main principles:

• Weeklong furlough. If an employer sets up a weeklong furlough and doesn’t pay exempt employees, there is no risk of losing the employees’ exempt status because the FLSA regulations provide that exempt employees need not be paid for any workweek in which they perform no work. In this case the exempt employee cannot work any time during the workweek. It must be stressed when a weeklong furlough is imposed that those employees who are on furlough may not do any work from home. Employees working from or with blackberries and iphones during a furlough can create a situation where the furlough is in reality not a furlough at all and employees must now be compensated for the entire workweek. Exempt employees should be expressly forbidden to do any kind of work during a furlough, make sure there is no misunderstanding.

• Partial-week furlough deducting employee pay. If an employer sets up a partial-week furlough and deducts the pay of exempt employees for the furlough days, the employees are at risk of losing their exempt status and may be entitled to overtime. It is easiest to say, just don’t do this.

• Partial-week furlough using vacation time. If an employer sets up a partial-week furlough and uses vacation time for the furlough time so that the employees receive their usual salary, there is no risk of losing the exemption. But this requires that every employee on furlough has enough vacation time to cover the furlough. Don’t be tempted to subject only those employees with vacation/pto to a partial-week furlough. The decline in morale that will result from this will not be worth it.

• Permanent furlough arrangement. Employers may set up a permanent change in an employee’s usual weekly schedule, such as changing the weekly work schedule from 5 days to 4 days, and altering the employee’s salary to match. As long as the exempt employees’ receive at least the $455 weekly salary required by the FLSA for exemption, they will remain exempt. For example, Dan is an exempt employee and has enjoyed a salary of $600 per week for a 5 day work week. Going forward Dan will be assigned a 4 day workweek and his salary will be reduced to $480 a week (in this case a 20% reduction). Since Dan still makes more that the FLSA required $455 per week, the salary level test has been satisfied.
Based on this information, you may require exempt employees to take a one-week unpaid furlough without jeopardizing their exempt status.

Q: Can a full-time exempt employee be suspended without pay?

A: Deductions from the pay of exempt employees may be made for unpaid disciplinary suspensions of 1 or more full days imposed in good faith for infractions of workplace conduct rules. The disciplinary deductions must involve serious misconduct (harassment, workplace violence, safety violations, etc.), not performance or attendance issues. The employer must have a written policy applicable to all employees in order to make disciplinary deductions. For example, an employer may suspend an exempt employee without pay for 3 days for violating a generally applicable written policy prohibiting sexual harassment or workplace violence.

Q: Can we require exempt employees to clock in and out for lunch periods and at the start and end of the workday?

A: Employers may require exempt employees to clock in and out for lunch periods and at the beginning and end of their work day. There are a number of reasons why an employer might want to require exempt employees to “punch a time clock” in the same way that non-exempt employees are required to do so. One reason involves the equitable treatment of all employees regardless of level in the company. Another reason is that a time clock provides a record of exempt employees’ attendance.
However, in order to continue to be classified as exempt, these employees must be paid on a salary basis meaning they must paid a fixed salary each week. The United States Department of Labor (DOL) enforces regulations that define the salary basis requirement for exempt status (29 CFR 541.118, 541.212, and 541.312). To be exempt, administrative, executive, and professional employees must generally be paid a predetermined amount each pay period that is at least the minimum weekly salary required by the regulations (currently $455 per week). The amount paid may not be reduced because of a variation in the quality or quantity of the work performed. With few exceptions, the employee must receive his or her full salary for any week in which he or she performs any work without regard to the number of days or hours worked.

Accordingly, if an exempt employee clocks in late to work or leaves early at the end of the day, the employer may not dock his or her pay as it does for a non-exempt, hourly employee.

Q: If an exempt employee comes into work for half of an hour and needs to leave due to personal reasons are we required to pay the employee for the entire day or can we use available PTO time?

A: As a general rule, employers may not deduct from an exempt employee’s weekly salary because of a partial day absence from work. He or she must be paid the full weekly salary even though a partial day was missed. However, if the employer has a written policy of which the employee is aware providing for the use of accrued paid time off in partial day increments, the employer may charge a partial day absence to vacation or other accrued paid time off. The result is that the employee still receives the full salary for the week. We suggest that all businesses have a bona-fide leave bank policy which is explained in more detail below.

The U.S. Department of Labor has issued an Opinion Letter addressing this issue. The relevant paragraph is copied below:

“To respond to your specific concern about whether or not an exempt employee’s accrued PTO leave bank may be reduced for partial day absences, the answer is yes. Where an employer has a benefits plan (e.g., vacation time, sick leave), it is permissible to substitute or reduce the accrued leave in the plan for the time an employee is absent from work, whether the absence is a partial day or a full day, without affecting the salary basis of payment, if the employee nevertheless receives in payment his or her guaranteed salary. Payment of the employee’s guaranteed salary must be made, even if an employee has no accrued benefits in the leave plan and the account has a negative balance, where the employee’s absence is for less than a full day.”

The federal Fair Labor Standards Act (FLSA) has strict rules about deductions from the pay of an exempt employee.

• Personal reasons. If the business has instituted a bona-fide leave bank plan and the employee is question has a zero balance in his leave bank deductions may be made when the employee is absent from work for a full day or more for personal reasons other than sickness or disability. Thus, if an employee is absent for a day or longer to handle personal affairs (including play, i.e. skiing, fishing boating, camping, ect), his or her salaried status will not be affected if deductions are made from his or her salary for such absences. If an employee is absent for less than a day, he or she must be paid for the full day.

• Family and Medical Leave Act (FMLA) leave. Employers may dock the pay of otherwise salaried and exempt employees for family and medical leave-related absences of less than 1 full day without affecting their exempt status but only in situations where the employer is required to provide leave under the FMLA.

If you have questions about how to institute a bona-fide leave bank plan you can receive further information from our professionals in the A Plus Benefits HR Department.

Q: Do you have a policy for giving exempt employees compensatory time? Specifically, when employees travel for the company on weekends, the company would like to show their appreciation by giving them an additional day of PTO.

A: Instituting a formal compensatory time off policy for exempt employees is legal, but many employers avoid formal policies due to the complications such a policy can create. Employers sometimes avoid formal comp time policies because they may create the expectation that exempt employees work set hours or that certain work is “extra.” Instead, many employers opt to grant additional leave to exempt employees on an individual and discretionary basis, based on exceptional performance.

If your organization wishes to provide comp time to exempt workers in a formal policy, it is best to set out a policy or clear expectations regarding when comp time is earned, how it will be tracked and within what time frame it must be used. Don’t confuse this kind of comp time pay with what many businesses want to do in relation to comp time/over-time pay with non-exempt employees. It is still contrary to current rules/laws to have a comp time plan for hourly paid employees wherein an employee is given additional time off instead of overtime pay..

For example (exempt employees):

• The policy should first limit and define the employees eligible for comp time to those that are exempt from overtime provisions of the FLSA. The policy should specifically state nonexempt positions are entitled to overtime pay and must be compensated for any hours worked over 40 hours in a work week and are not eligible for compensatory time off.

• State that the employer has no legal requirement or obligation to grant compensatory time off to exempt employees. A supervisor may choose to grant compensatory time off to exempt employees who are required to work in excess of 40 hours per week for special projects or during weekends or any normally scheduled time off. State how compensatory time will be granted (e.g., on an hour-for-hour or other basis).

• Require supervisory approval of work that qualifies the exempt employee for comp time. Consider requiring recordkeeping of hours worked, use of timesheets, etc., depending on the work environment.

• Set time periods for use of comp time (i.e., within a year of date which comp time is accrued, within 60, 90 days, etc.)

• Set limits on when an employee can use comp time (i.e., allowing supervisors to deny comp time leave requests if taking such time will “unduly disrupt” the department’s operations.

• Set limits on the number of hours of comp time an employee can accrue in a set period.

Again, if a business would like to institute a comp time plan to reward exempt employees, technical assistance can be obtained from one of our professionals in the A Plus Benefits HR Department.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

The 3-Legged Dance a.k.a. The Bermuda Triangle of HR
(or Why You Really Want Access to Experienced HR Professionals)

In this update we mention ADA, COBRA, PDA, ERISA, FLSA and Recordkeeping, some of these regulations have minimum employee counts to be effective for an organization and some effect a business because you have one employee. You may not be required to comply with all of the regulations mentioned above today, but as your organization grows you will most likely be required to comply with all of them at some point in time.

Much of the information that follows below comes from recent HR Updates delivered to us by BLR.

Much has been written about the Bermuda Triangle of Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), but that’s not the only triangle that makes FMLA compliance tricky. Compliance gets even murkier when the ramifications of the Pregnancy Discrimination Act (PDA), ADA, and COBRA are factored in.

FMLA regulations specify that the FMLA does not override other applicable laws, and that where multiple laws apply to a leave situation, FMLA should be coordinated with the other applicable laws. Understanding which laws apply in a given situation, and how they interact, can be complex and confusing, to say the least.

The Pregnancy Discrimination Act and FMLA
The PDA, which amends Title VII of the Civil Rights Act of 1964, makes it unlawful to fire, fail to hire, refuse to promote, or otherwise discriminate against a woman because she is pregnant.
The basic principle behind the PDA is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work.

As regards FMLA leave, this means:
• A pregnant woman may not be forced to go on leave as long as she can still work.
• If other employees who take disability leave are entitled to get their jobs back, so are women who have been unable to work because of pregnancy.
• If pregnant employees are treated differently with respect to their FMLA leave than nonpregnant employees who request leave because of a serious health condition, you may be guilty of discrimination.
• If a woman is terminated allegedly because of pregnancy or the birth of a child, she may be able to sue under both FMLA and PDA.

Please keep in mind that some states have laws that mandate maternity leave (not Utah, Idaho, Wyoming, or most western states except California)

COBRA and FMLA
COBRA contains rules regarding employees’ rights to healthcare coverage.
The major question for employers who must comply with both COBRA and FMLA is when COBRA benefits begin. According to guidance issued by the Internal Revenue Service (IRS Notice 94-103), taking leave under the FMLA does not constitute a COBRA-qualifying event setting off COBRA’s notification requirements. A qualifying event does occur if the following conditions are met:

• The employee (or spouse or dependent) is covered by the employer’s group health plan on the day before the first day of FMLA leave,
• The employee does not return to work at the end of the FMLA leave, and
• The employee would, in the absence of COBRA, lose coverage under the health plan before the end of the maximum coverage period provided by COBRA.

If these three conditions are met, a qualifying event occurs on the last day of FMLA leave. The maximum COBRA coverage period is generally measured from the date of this qualifying event. If coverage would be lost on a later date, the maximum COBRA coverage period would be measured from that date.

The IRS guidance also says that:
• Any state and local laws that require group health plan coverage during a leave of absence for more time than required by FMLA do not affect the determination of when a COBRA qualifying event has occurred.
• A qualifying event also occurs if an employee fails to pay his or her share of group health plan premiums during the FMLA leave or declines group health plan coverage during the leave.
• The right to take COBRA continuation may not be conditioned on repayment by an ex-employee of any premiums paid by the employer for group health coverage during FMLA leave.

In part 1 above we entered the Bermuda Triangle of HR—the dangerous waters where the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) intersect. Today, we’ll see what the Employee Retirement Income Security Act (ERISA) and Fair Labor Standards Act (FLSA) have to do with the FMLA, and we’ll introduce a comprehensive program that will keep your FMLA hassles to a minimum.

FMLA and ERISA
The FMLA allows for the discontinuation of employee health benefits during a leave if the employee fails to pay his or her portion of the premium. However, the FMLA requires that any discontinued benefits provided pursuant to an employee benefit plan, as defined by ERISA, be resumed when an employee returns from FMLA leave, without any qualifying period.

This requirement makes it necessary for employers to review their benefit plans to ensure that an employee returning from leave will be able to be fully reinstated to all benefits. For example, it may be necessary for the employer to continue life insurance for an employee on FMLA leave to avoid the employee’s having to pass a new physical for the life insurance carrier.

In addition, any period of FMLA leave must be treated as continued service for purposes of vesting and eligibility to participate in pension and other retirement plans.

FLSA and FMLA
The FMLA and the FLSA interact in two important ways. First, the FMLA provides a special FLSA exemption for salaried, exempt employees. Second, the FMLA requires that FMLA-covered entities maintain records in accordance with the FLSA.

Exemption for Salaried Employees
Normally, employers may not deduct hourly amounts from exempt employees’ salaries. The FMLA provides an exception, stating that an employer may deduct hourly amounts from an employee’s salary when providing FMLA leave without affecting the employee’s exempt status under the FLSA.
Recordkeeping

The burden of proof is on the employer to prove an employee is ineligible for leave because he or she has not worked the requisite 1,250 hours. In determining an employee’s eligibility for leave under the FMLA, the appropriate measure of “hours of service” is the standard used by the FLSA that considers only actual hours worked by the employee.

If you do not keep time records, you may have a difficult time establishing your case. To this end, the FMLA requires employers to make, keep, and preserve records related to their obligations under the FMLA, according to the recordkeeping requirements of the FLSA.

FMLA hassles—they just won’t go away, will they? And, now, of course, there are all the new FMLA responsibilities—like military leave and reinstatement. Still a little shell-shocked?

The issues touched on above are the kind of issues handled daily by the HR Professionals at A Plus Benefits, Inc. If you have questions or concerns about these issues or other employment related matters please contact one of our HR Professionals.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

In the past couple of months, several A Plus Benefits clients have been presented with retaliation claims from current or former employees. While we have been successful in defending our clients at no additional cost to them, and have helped our clients prevail in each case, the information below is a good reminder of what can happen.

(BLR HR Daily Advisor – September 28, 2009)
Retaliation suits are the one type of EEOC suit that is increasing, and Attorney Judith A. Moldover says HR managers have an “incredible role” in sparing their organizations the expense those suits invariably bring—even if you “win” them.

Retaliation claims are very fact related, says Moldover, and that makes it especially important that someone with good judgment—like an HR manager—be there to guide management through the case.

They’re Not Over ‘Til They’re Over
By the way, Moldover says, HR’s role doesn’t end when the case ends—you have to keep an eye on management as long as the employee who complained is employed.

Moldover’s comments came at the recent Legal and Legislative Conference of HRNY, the New York City chapter of SHRM. Moldover is with the New York City office of law firm Ford & Harrison LLP.
What Rises to the Level of ‘Materially Adverse Action’?

One of the keystones in a claim of retaliation is that the employee must have suffered a materially adverse action. As a result of the Burlington Northern case, Moldover says, we have a definition for retaliation: an action that would dissuade a reasonable employee from making or supporting a charge. Furthermore, the action need not be employment related.

In the Burlington case, a supervisor constantly told a female worker, “Women shouldn’t do this work.” Then he started saying other things to her with sexual overtones. When she complained, the company investigated and punished the supervisor by giving him a 2-week suspension without pay and making him go to sexual harassment training.

So far so good, says Moldover. But then, the same day the complaining employee was told about how her complaint was resolved, she was taken off her relatively easy forklift job and given a much harder and more physical job. She didn’t lose seniority, pay, or title, but the court did find that the action was adverse.

In another case, an HR manager who reported to top management made a complaint. Soon thereafter he lost all his staff, was moved to another area, and found himself reporting to a middle manager. His new boss said to him, “I don’t know why they sent you to me. I don’t have anything for you to do.” As with Burlington, the manager kept his title and his pay, but the courts found that the action was an adverse action.

However, in another case, a company moved an employee who had complained about sexual harassment away from the harassing supervisor. The new location involved a slightly longer commute. This action was not found to be adverse, but in fact it was judged to be a reasonable response to the complaint.

Moldover offered the following examples of other potentially adverse actions:
• Giving a lower evaluation. Even if the evaluation is only lowered from “superb” to “excellent,” it could be considered an adverse action, especially if pay or promotional opportunities are affected.
• Transferring to a less desirable position. Transferring a person to another position or office could be adverse, although as noted, in sexual harassment cases, a move may be the best thing to do.
• Ultimate employment actions. Naturally, when you take ultimate employment actions, such as firing, demoting, not giving a promotion, or imposing discipline, you are likely taking adverse action.
• Lowering benefits. Removing a significant benefit could also be considered an adverse action, Moldover says.

Counterclaims Could Be More Retaliation
When an employee files a charge or complains about a manager, the manager’s response is often, “I’m going to sue for defamation!”

You probably don’t want to do that, says Moldover. First of all, that case is going to be hard to win, and it’s going to take resources and engender bad publicity. And if that’s not enough, the countersuit itself could be viewed as retaliation.

HR managers have a balancing act to perform in preventing retaliation, says Attorney Judith A. Moldover. You’ve got the manager storming around, saying “I’m going to get this person—can I fire him today?” And you’ve also got a complaining employee who is strutting around thinking he or she is bulletproof.

Find the balance, Moldover says. When you get wind of a manager’s action that might be retaliatory, put the situation in context and try to view it from the employee’s perspective.

Moldover’s comments came at the recent Legal and Legislative Conference of HRNY, the New York City chapter of SHRM. Moldover is with the New York City office of law firm Ford & Harrison LLP.

Context Matters
With retaliation, context matters, Moldover says. Take, for example, a schedule change. One person might not care at all, while another might care a great deal. For instance, a single mother with a carefully arranged daycare schedule might find a schedule change adverse if she has no other options.

Similarly, someone with asthma might find a change of workstation adverse if he or she can’t work in certain atmospheres.

Moldover’s Most Important Rule
The most important rule for fighting retaliation is to insist that HR have prior review of any action proposed against an employee who has filed a charge or lodged a complaint.

Decision makers often want to act fast and be tough, but you can’t let that happen, says Moldover. You have to get wind of any planned change so that you can talk it through before it happens.

Don’t let a manager take an adverse action or what might be considered an adverse action until you are convinced that the decision maker can explain the basis for the action. That’s not just termination, but any form of discipline, lower evaluation, etc., says Moldover.

Ask yourself these questions, she says:
• Will a jury buy this explanation?
• Why are we doing this to this employee?
• Why now?
• Are there alternatives?

How HR Can Help
Moldover recommends the following for HR managers:
• Delay action pending investigation. Acting too fast, before you are all on the same page, can have disastrous consequences in court. It may take a few weeks, but you’ll be able to take adverse action secure in the knowledge that you can support the decision.
• Deliberate with decision makers. Make sure that you are there when decisions are made, and make sure that all present understand the reasons behind the adverse action.
• Don’t deviate from precomplaint practice. Be cognizant of your past practice. When you deviate from it for one employee, you will certainly look as though you are retaliating.

For A Plus Benefits’ clients
As always, we encourage you to contact one of our HR Professionals at A Plus Benefits when you find it necessary to deal with the kind of situations that are outlined above. We have found, over the years, slowing down a disciplinary process by a few hours and discussing the situation in detail can often reveal a better course of action and yield a far better outcome.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

Do Employees Have a Right to Privacy?
(BLR HR Advisor September 9, 2009)

It used to be easy, says Attorney Matthew Effland. If you spotted someone reading on the job, you just told them to go back to work. Now, they have headphones on—are they listening to an audio conference on HR compliance, music that relaxes them, or a digital book?
Unfortunately, you are going to have people who abuse your technology. They are going to send e-mails of the wrong nature, access sites they shouldn’t, or simply spend the day doing things that aren’t related to their jobs, Effland says. And when you try to discipline, they’ll yell, “Constitutional privacy rights!”

Effland is a shareholder at the Indianapolis office of the national law firm Ogletree Deakins. His comments originally appeared in our sister publication, the HR Manager’s Legal Reporter.

It’s Misunderstood!
How many of these outraged responses have you heard?
• But it’s my computer! It’s sitting on my desk.
• What I do from my home computer is my business!
• You were listening to my private phone calls?
• You can’t go through my e-mail—it’s private.

That’s the kind of pushback HR managers are getting from employees, says Effland.

The ‘Constitutional Right to Privacy’
Do employees have a constitutional right to privacy at work? Many employees think that they do. Here’s an example from Effland.

Someone is stealing Subway® sandwiches from the refrigerator. To find the culprit, after hours you secretly go around to each desk looking for Subway wrappers.

You find them in Joe’s office in his trash can, and the next day you discipline Joe. He says, “What are you doing going into my office? The door was shut; you can’t do that!” In a government agency, that employee may be right; in private firms, however, probably not, says Effland.

Limiting Expectations in a Government Setting
As private citizens we have rights against “unreasonable search and seizure,” and when we work in a government setting, we essentially have that same protection.

But that varies based on the job, Effland notes. To limit expectations in a government setting, figure out, based on the individual’s job, what the expectation of privacy should be.

For example, the person who runs the ticket booth at the government parking lot has little expectation of privacy. Others share her booth. Anyone can look in. She has some privacy rights, but not many.

On the other hand, the governor’s chief of staff has a high expectation of privacy in his office.

Privacy in a Private Setting
For all employees not in public or government settings, there is no constitutional right to privacy at work, says Effland. It’s easy—if you don’t want the boss snooping, work somewhere else.

Creating a Right to Privacy
However, if the organization is not careful, it can unwittingly create a right of privacy by its actions.
For example, if you tell people “We won’t search,” “We won’t monitor,” then you’ve probably established their right to privacy.

As another example, if you say “Don’t worry, just shut your door, no one will ever go in there,” you might have set up an expectation.

Keys, passcards, and passwords may also create an implied right to privacy.

How to Erase an Implied Right to Privacy
Limiting expectations is the key to erasing any implied right of privacy, says Effland. Here’s a few suggstions.

1. Do not provide assurance of privacy beyond what is necessary.

2. Make sure handbooks state explicitly that at work, employees have no expectation of privacy.

3. When giving out anything that might indicate privacy—like keys, passcards, or passwords—clarify with employees and put in your policy that this does not confer any privacy rights.

4. Avoid obvious errors. Naturally, you don’t want to spy on people in the bathroom or put cameras in the showers—that’s just common sense. By the way, Effland adds, courts will bend over backward to find a way of getting a company that tries something like that.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.