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Common Compliance Complexities

Complying with seemingly simple rules, such as publicly posting notifications about various government regulations, can sometimes offer intricacies for HR leaders. The Legal Clinic explores that topic as well as some of the issues to consider when an employee quits and walks off the job.

Monday, June 14, 2010
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The complex array of state and federal employment regulations often makes it difficult for employers to fully comply with the law. HR professionals are generally mindful of the requirements imposed by state and federal employment laws, yet the intricacies inherent in these regulations are often difficult to track, and failure to observe seemingly minor details can lead to costly litigation and potential liability. This month's column provides helpful information in response to two common compliance inquiries.

Question: In regard to the notices that need to be given to each employee on various federal and state regulations, is it legally sufficient to place posters of these notices in common areas or is there another way that the notices need to be distributed?

Answer: Federal law and the laws of nearly every state in the country establish regulations on various aspects of the employment relationship, such as employment discrimination, minimum wages and child labor. These laws require employers to notify their employees of the regulations in order to make employees aware of their rights.

The vast majority of these state and federal notice requirements mandate employers to post an appropriate bulletin at the workplace in a conspicuous place where notices to employees are commonly displayed.

See e.g., 29 C.F.R. § 1903.2(a)(1) (in regard to notices informing employees of the protections and obligations of the Occupational Safety and Health Act, "notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted."); N.J. Admin. Code tit. 12, § 12:16-16.1(b) (directing employers in New Jersey to post a notice informing employees of unemployment insurance coverage "in prominent and conspicuous places at each worksite").

Courts interpreting these statutes find that posting the notices in common areas that employees frequently visit is sufficient. See e.g., Reich v. Midwest Plastic Eng'g, 1995 U.S. Dist. LEXIS 8772 (W.D. Mich. 1995) (posting notices in two employee break rooms sufficient).

Employers may also comply with notice posting requirements by putting the appropriate notifications on a company intranet site that is accessible to employees while they are at work. See Dube v. J.P. Morgan Investor Services, 201 Fed. Appx. 786 (1st Cir. 2006).

Nonetheless, regulations vary from state to state, and the notice posting requirements of a particular state may be more demanding that the requirements of others. For instance, California -- a state with especially stringent and detailed employment regulations -- requires employers to personally deliver to a pregnant employee notice of her rights under the state's Pregnancy Disability Law upon learning of the pregnancy, while most states do not. Cal Admin. Code tit. 2, § 7291.16.

Because of such variances in state laws, it is important to regularly review local regulations and consult with counsel about these regulations in the state(s) where your business operates.

Question: If an employee tells his/her supervisor that they quit and leaves the building, (with other employees as witnesses), is it safe for the employer to accept this as a resignation and thereby remove the employee from the books, or must the employer get a written resignation from the employee before doing this?

Answer: To begin with, employment in the United States is generally "at-will," meaning that in the absence of a contract specifying the term of employment, the employment relationship may be terminated at any time and for any reason by either the employer or the employee.

There are several ways in which an employee may end the employment relationship, including a written resignation. However, unless there is a policy or practice in place to the contrary, employees need not formally provide a written resignation before the employer may consider the relationship terminated.

An employee who tells his/her supervisor that he is quitting the job and then physically exits the employer's facility may have effectively resigned. An effective resignation occurs where an employee expresses an intention to end his/her employment and takes action to relinquish his/her position. Hammon v. DHL Airways, Inc., 165 F.3d 441, 448 -449 (6th Cir. 1999).

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By informing a supervisor that he/she quits coupled with the act of leaving the employer's facility during work hours, an employee likely submitted an effective resignation.

In addition, an employer may consider the employment relationship terminated if an employee abandons his/her position. Abandonment occurs where there is "a complete and total failure" on the part of the employee to perform his/her employment obligations. See Haft v. Dart Group Corp., 841 F.Supp. 549, 572 (D. Del. 1993).

Therefore, an employee's act of leaving the employer's facility while on duty or during working hours would likely constitute a failure to perform the employment obligations.

Thus, the scenario described in the question above could most likely be considered a termination of employment by the employee, thereby enabling the employer to remove the employee from the payroll and otherwise proceed as though the relationship has ended.

However, it is important for employers faced with these types of situations to keep detailed records of the events leading up to and including the employees' walking out.

Further, employers should establish a full written record of the terminated employee's conduct by interviewing all witnesses and documenting their observations. In this way, if the terminated employee later challenges the employer's decision to remove the employee from payroll, the employer will be prepared.

It is also a good idea to send a confirmatory letter to the employee documenting the occurrence and stating in essence that, based on the employee's conduct, the employer considers the employment relationship terminated.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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