Ask the Advisor Roundup – Are we allowed to do that?
BPHR’s Director, Lisa Salcido, addresses a wide variety of topics in her bi-weekly Q&A series. Many of them stem from the simple question: Are we allowed to do that?
Often the employer is looking for validation of practices they already have in place and hoping for a “yes” response. But as you can see, that’s not always the case. Read these instances where Lisa has had to deliver bad news.
Probationary Period Plea
Question: Can we set a probationary (or training) period for our new employees?
Answer: While technically you can, I discourage it. They are often misunderstood, which can have legal implications. Employees often believe that once they have successfully completed the probationary period, they are now a “permanent” employee. Permanent employee status infers job security which is inconsistent with “at-will” employment.
Employment is at-will, which means an employee can be terminated, or can resign, at any time, for any (lawful) reason or no reason. A probationary period policy may interfere with an employer’s right to terminate employees. A poorly written, or implemented, policy may not preserve the at-will status. This can lead to an increased risk of wrongful termination claims. Lawyers regularly argue that the completion of a probationary period changes at-will status and many courts have ruled that after completing a probationary period, there was an implied contract of employment and employees can no longer be fired at-will.
A waiting period for employees to be eligible for health benefits and paid time off, can accomplish the same goals while maintaining at-will status. Your handbook should make it clear to employees that they are employed at-will and have no contractual rights.
Question: An employee refuses to sign an acknowledgement of the company’s handbook. Can we require them to do so?
Answer: An important step when rolling out a handbook is requesting that all employees sign an acknowledgment that the handbook has been received and read. Occasionally an employee will challenge this task and refuse to sign. Unfortunately, an employee is not legally required to sign the handbook acknowledgment.
Here’s what you should do: Talk to the employee about why they are refusing to sign. Often the employee believes that if they don’t sign, the policies will not apply to them or they won’t have to comply with certain procedures. Explain to the employee that refusing to sign does not make them exempt from the policies contained in the handbook. As a condition of their employment, they are still expected to adhere to all policies and follow all procedures published in the handbook.
If the employee still will not sign, you should document the refusal. Ask the employee to hand write a sentence asserting that they are refusing to sign. If they will not agree to that, write a statement as a witness affirming that the employee’s refusal to sign, adding that the employee was notified that the policies and procedures will still apply and file with the employee’s records.
As a last measure, you can consider handling the matter with a disciplinary action including termination. Try to the address the reason(s) why the employee will not sign first. Then follow your usual procedure for misconduct or insubordination. Apply any adverse actions fairly and consistently for all employees who refuse to sign any company documents.
English Only? Por Favor.
Question: We have a diverse workforce who speak many languages. Can we enforce an English-only policy?
Answer: A policy prohibiting your employees from speaking other languages could be considered discriminatory and a violation of their civil rights.
Your policy would have to be able to demonstrate a justifiable business necessity and be limited to conditions related to emergencies, safety and collaborative work efficiency. A universal rule requiring English-only, at all times, would rarely be just justified. Also, other workers simply feeling “left out” of a conversation would not qualify as a business necessity to adopt an English-only policy.
Assess whether speaking other languages is actually interfering with your business. Even with good reason to require English, a policy that is too broad could be unlawful. Narrow down the specific times and situations where English is required, like during customer contact or with a Supervisor monitoring performance. Your policy should not be applied to conversations with other employees, meal and rest breaks, personal phone calls or if a customer addresses them in their shared language.
Provide proper notice of language policies, and the consequences of violating them, by including them in the employee handbook. Train your Supervisors and Managers on workplace discrimination based on national origin or use of foreign languages.
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