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Employee Agreements: When Are They Appropriate?
By and large, RMI advises its clients to avoid a particular type of contract with their employees. That avoidance advice, though, is limited to what we call "employment contracts," in which the client and an employee enter into a contract of employment for a specific duration. There is a reason that we advise against these contracts: we want our clients to be free to avail themselves of the generally applicable rule of employment "at-will." That rule allows an employer and employee to terminate the employment relationship at any time, with or without notice and with or without any reason. If you have an employment contract in place, though, the "at-will" rule doesn't apply.
Does this mean that RMI doesn't do any type of contract for its clients? Absolutely not. There are still a whole host of contracts that RMI can and does produce for clients. For example, RMI's General Counsel can either draft or assist in drafting non-competition agreements, non-solicitation agreements, confidentiality agreements, non-disclosure agreements, severance agreements, and, in the rare instance where a client insists on it, an actual employment agreement.
So, what are these different agreements and what are their purposes? To begin with, non-competition agreements are primarily to keep departing employees, who have learned so much about our client employer, from competing with them in the same markets and on the same products or services once they leave. Typically, a non-competition agreement will prohibit an employee from directly competing with the prior employer for a specific period of time (usually, not more than two years) and in a specific geographic region (typically, where the employer does business). These agreements, though, are treated differently in different states. Some states have statutes governing their enforcement. Some states, like Utah, do not. In those instances, it's left to the courts to decide whether a particular non-competition agreement is reasonable enough to be enforceable.
Similarly, non-solicitation agreements are designed to protect the employer from departing or departed employees from either soliciting away your remaining employees or soliciting away your customers. When it comes to soliciting customers, these agreements are typically treated like non-competition agreements. Generally, they are going to be enforceable if you are trying to protect your company's hard earned proprietary information. If, instead, you are trying to keep that former employee from earning a living, the agreement won't be enforced.
By contrast, the next type of agreement mentioned, confidentiality agreements, are generally enforceable. What you are trying to do with these is have your current and former employees maintain the confidentiality of the company's trade secrets and other proprietary information. In other words, you don't want them divulging that information to others outside the company. It is perfectly within your rights as a company to require them to sign a contract agreeing that they won't release that information. The courts look quite favorably on employers trying to enforce these agreements.
Non-disclosure agreements are very similar to confidentiality agreements in that they are your attempt to keep your employees and former employees from disclosing company information to outsiders. Again, courts look quite favorably on an employer that is attempting to enforce one of these agreements.
Typically, RMI advises its clients to join all four of the foregoing types of agreements into one document. This makes things a bit more organized and easier to keep the employee aware. RMI can, however, add and subtract any one of those four types of agreements from a particular document. With RMI's advice and counsel, you can determine what is best for you.
As mentioned above, RMI also drafts severance agreements for clients. This, unfortunately, is a regular occurrence in the economy that has persisted for several years now. The reason for having such an agreement is peace of mind. Generally, employers are not obligated to provide a departing employee with severance. In the event, however, that you do want to provide severance, RMI strongly advises that you require the employee to sign a severance agreement in which the employee gives up any right that they may have had to make a claim against you for anything related to their employment. In most instances, there are no claims about which anyone is aware that are being given up. Nevertheless, the peace of mind bought for having that signed agreement can turn out to be significant. Don't pay severance without one.
That's a brief synopsis of the agreements that RMI can and does provide for its clients. If you ever need assistance with or want advice regarding any of these, please contact either your HR Representative or RMI's General Counsel. |
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| Minimum Wage Increasing In Some States |
With 2012 quickly approaching, it is important to be aware that several states are increasing their minimum wage on January 1, 2012. The current federal minimum wage is $7.25 per hour, which may be higher or lower than some states' or local governments' minimum wage. Whichever wage is higher is the minimum wage that is required to be paid. The following table indicates the current state minimum wages and upcoming changes announced to date:
| State |
Current Hourly Minimum Wage |
Future Hourly Minimum Wage |
| Alabama |
No State-Mandated Minimum Wage |
| Alaska |
$7.75 |
None |
| Arizona |
$7.35 |
$7.65, effective 1/1/12 |
| Arkansas |
$6.25 |
None |
| California |
$8.00 |
None |
| Colorado |
$7.36 |
$7.64, proposed increase for 1/1/12 |
| Connecticut |
$8.25 |
None |
| Delaware |
$7.25 |
None |
| District of Columbia |
$8.25 |
None |
| Florida |
$7.31 |
$7.67, effective 1/1/12 |
| Georgia |
$5.15 |
None |
| Hawaii |
$7.25 |
None |
| Idaho |
$7.25 |
None |
| Illinois |
$8.25 |
None |
| Indiana |
$7.25 |
None |
| Iowa |
$7.25 |
None |
| Kansas |
$7.25 |
None |
| Kentucky |
$7.25 |
None |
| Louisiana |
No State-Mandated Minimum Wage |
| Maine |
$7.50 |
None |
| Maryland |
$7.25 |
None |
| Massachusetts |
$8.00 |
None |
| Michigan |
$7.40 |
None |
| Minnesota |
$6.15 (Exceptions Apply) |
None |
| Mississippi |
No State-Mandated Minimum Wage |
| Missouri |
$7.25 |
None |
| Montana |
$7.35 (Exceptions Apply) |
$7.65, effective 1/1/12 |
| Nebraska |
$7.25 |
None |
| Nevada |
$7.25 (Exceptions Apply) |
None |
| New Hampshire |
$7.25 |
None |
| New Jersey |
$7.25 |
None |
| New Mexico |
$7.50 |
None |
| New York |
$7.25 |
None |
| North Carolina |
$7.25 |
None |
| North Dakota |
$7.25 |
None |
| Ohio |
$7.40 (Exceptions Apply) |
$7.70, effective 1/1/12 |
| Oklahoma |
$7.25 (Exceptions Apply) |
None |
| Oregon |
$8.50 |
$8.80, effective 1/1/12 |
| Pennsylvania |
$7.25 |
None |
| Puerto Rico |
$7.25 (Exceptions Apply) |
None |
| Rhode Island |
$7.40 |
None |
| South Carolina |
No State-Mandated Minimum Wage |
| South Dakota |
$7.25 |
None |
| Tennessee |
No State-Mandated Minimum Wage |
| Texas |
$7.25 |
None |
| Utah |
$7.25 |
None |
| Vermont |
$8.15 |
$8.46, effective 1/1/12 |
| Virginia |
$7.25 |
None |
| Washington |
$8.67 |
$9.04, effective 1/1/12 |
| West Virginia |
$7.25 |
None |
| Wisconsin |
$7.25 |
None |
| Wyoming |
$5.15 |
None |
For more information on minimum wage, please contact your RMI HR Representative or Payroll Manager. |
| Year-End Bonuses |
If you plan on issuing year-end bonuses to your employees, please call your RMI Payroll Manager at 801-355-0200 or toll-free at 888-764-0200 to coordinate the processing schedule. Please call to finalize these details at least two days prior to RMI processing your last regular payroll in the month of December. The cost for each year-end bonus check is $3.
If you process a bonus check for an employee but decide to void the check, the original check must be given to your payroll manager and voided before the end of the year. Due to the complexity and labor involved in backing out past year payroll wages, we ask that you please verify and correct all 2011 wages with your payroll manager before 12/31/2011. Since RMI incurs tax penalties for processing past year wage and tax corrections, all check reversal requests received after the end of the year will be charged a $50 service fee instead of $9. This $50 service fee not only applies to bonus check reversals, but to any check reversal requests that are received after the end of the year. After the first week in January, RMI will be unable to reverse any checks from the prior year. |
| 2012 Flexible Spending Account Plan Open Enrollment |
November 21, 2011 through December 23, 2011 is the open enrollment period for the Resource Management, Inc. 125(c) Flexible Spending Account Plan for the 2012 Plan year. The 125(c) Plan allows employees to set aside money from each paycheck on a pre-tax basis to be used for out-of-pocket medical, dental, vision and child care expenses. Examples of expenses that qualify for reimbursement under the 125(c) Plan can be found on RMI's website under the 125(c) section. For a more detailed summary, please review the Summary Plan Description or watch the video entitled, "The Basics of Flexible Spending," on our website at www.rminc.com under the Employee Resource Center.
The maximum contribution for medical, dental (non-orthodontic) and vision expenses for 2012 is $5,000. The dependent care reimbursement maximum, set by the IRS, is also $5,000. RMI also has a third category for orthodontic expenses and the maximum for this category is $5,000. All expenses for orthodontic work must be claimed under the orthodontic category and cannot be claimed under the general medical/dental/vision category. If you have questions in regards to the different categories, please contact RMI for further clarification.
For your information, beginning in 2013, Health Care Reform will significantly limit the amount of money that employees can contribute to a 125(c) plan. RMI's orthodontic category will be going away and the limit for all expenses, not including dependent care, will be limited to $2,500.
National Benefit Services, RMI's administrator for the 125(c) Plan, will be sending a letter via mail, an e-mail to the e-mail address they have on file, or both, to all 2011 participants during the week of November 14th. This letter will notify participants as to what their current 2011 remaining balances are so that employees do not lose any money in their accounts. The letter will also provide specific instructions regarding how to log into the RMI Center for the 2012 enrollment.
Just as we did with health insurance open enrollment for our non-Washington employees that took place in August and September, all new 125(c) Plan enrollments and re-enrollments must be made in the RMI Center. If you accessed the RMI Center during August and September, you will log in using your name and the password that you have chosen. If you have not yet accessed the RMI Center, please use the following instructions:
- Log on to RMI's website, www.rminc.com, and locate the red RMI Center button on the top right-hand side of the page.
- Locate the Employee Login section and click the "Access" button.
- Please refer the postcard that you received in August (if you are a non-Washington employee) or to the letter from National Benefit Services (if you are participating in the Plan for 2011) for your User Name and Password.
- If you do not have your postcard, you live in the State of Washington, you did not receive a letter from National Benefit Services, or you cannot remember your user name and password from open enrollment, please contact RMI for your log-in information.
- Once you are logged into the RMI Center, click on the "Benefit Information & Enrollments" link (see the green rectangle in the following graphic).
- Click on "Cafeteria Plan" under the summary section on the right-hand side of the page (see the green rectangle in the following graphic).
- You will then be able to choose the amount that you would like to set aside for each of the three categories.
If you experience any problems accessing the RMI Center, or need assistance with your enrollment, please contact RMI's Benefits Department at (888) 764-0200 or by e-mail at benefits@rminc.com. As a reminder, all employees are required to re-enroll for continued participation in the plan each year and the deadline to enroll or re-enroll is December 23, 2011. After this date, the 125(c) open enrollment portal will close and you will no longer be able to access the system. |
| Resignation Notice Form |
Employees don't always provide a letter of resignation when they quit their jobs. Nevertheless, a letter of resignation is an important part of the employment separation process. Our September 2010 Client Newsletter stated: "A voluntary separation [of employment] should always prompt you to request a letter of resignation from the employee. [It] does not have to be lengthy or formal. . . . A letter of resignation may seem like an inconsequential step, but it is important protection for you in case the employee brings future claims or legal action against you regarding their employment." For the complete article, click here.
RMI has created a new Resignation Notice Form to help in these situations. This form can be found in the Employee Resource Center on RMI's website, www.rminc.com. Whenever an employee quits and does not provide their own resignation letter, please have them complete this new form and return it to your RMI HR Representative. |
| Safe Driving Tip |
| Crashes: Situational Awareness And Finding Root Causes |
Company safety managers often answer the phone and hear the news about a serious crash that has just happened to one of their drivers. During the accident investigation, one question frequently comes up: Why did this crash happen today? The driver has usually been in similar situations before, traveled the same route, driven the same equipment, carried the same type of load, but has never been in a serious crash. So why this time? What was different about this situation that caused a serious crash to happen this time, at this location, to this driver?
In many investigations of serious crashes there are several major situational factors that really do seem to be different. In key areas, something was different that day, at least enough to make a difference to the particular driver who was involved.
If drivers can strengthen their situational awareness and consistently manage the following four target factors that are associated with serious crashes, they may be far less likely to become involved in a crash.
Driver Factors:
The most likely factor that varies from day to day is the condition of the driver. There are many areas that can vary, but the three most important ones include:
- Alertness and fatigue: Fatigue is a cumulative issue and will affect how alert the driver is to his or her changing surroundings. The quality of a driver's sleep can make a huge difference in reducing fatigue. A driver must be able to properly manage his or her sleep patterns and activities outside the job. A driver must also be aware of how alert he or she is at any given time, learn to properly compensate, and be able to recognize when he or she should not be on the road.
- Distractions: A driver must deal with in-cab and outside distractions, and a driver's bad habits really can catch up with him or her when distracting elements intrude. A decision as simple as reaching for something that was dropped can quickly result in a terrible crash. Talking on a cell phone at the wrong place, at the wrong time, has been an increasing cause of crashes.
- Attitude and mood: A driver, just like anyone, can have his or her up days and down days. Simply by recognizing early whether today is a good day or a bad day, a driver can be more self-aware and avoid hazardous situations. If drivers consciously force themselves to recognize that they are having a down day, they can compensate and be much more alert when driving.
Environmental Factors:
Another situational factor that can often change and contribute to a serious crash is the condition of the road, weather, and other environmental factors. These conditions can change rapidly and deteriorate to the point where safety is compromised unless a driver and his or her dispatch team take action to compensate. The major dangers include:
- Winter conditions: One very common cause of a crash is excessive speed for the conditions, where the driver fails to realize how much the conditions have changed and drive at the same speed he or she would have if the roadway were dry. Winter conditions include wet, snow-covered, and icy roadways. Dispatching without checking the conditions into which you are sending your driver can also lead to a serious crash.
- Fog/impaired visibility: Drivers who fail to size up the whole scene, recognize the hazard, and react decisively may very quickly become involved in a crash. Many result in chain reactions.
- High winds: Drivers must realize the powerful force that winds create, and adjust their driving appropriately. Slowing down or even exiting the highway may be the most appropriate move.
- Road construction hazards: A driver's unfamiliarity with a road under construction can quickly factor into a serious crash. Changes in surface conditions, road widths, and construction equipment are all common factors to consider. Size up the whole scene. Drivers should scan for developing traffic situations such as construction zones, congested intersections, erratic drivers, pedestrians, cyclists, changing road conditions, and so on.
- Animals: An improper response to the sudden appearance of animals on the road is a common error. Have your drivers been trained in emergency reaction? Are they aware of peak movement times (dusk and dawn) and rural transition areas? Have them think ahead and plan how to react. They will need to react quickly if the unexpected happens.
Equipment Factors:
Significant contributors in many crashes are the changes, often seemingly minor, in the condition of the equipment. Any driver is at risk of becoming complacent, believing that since the vehicle was fine yesterday it must still be fine today. The most common vehicle components that contribute to accidents include:
- Equipment new to the driver: Drivers assigned a new or different type of truck or trailer should be trained or given enough time to become comfortable with it.
- Brakes: Improperly adjusted brakes, or brake systems in less than ideal condition, can result in brake failure and increased stopping distance.
- Tires: Improper inflation (usually underinflation) can lead to problems, including blowouts and suspension problems. Insufficient tread depth is another important factor that can escape the attention of the driver.
- Visibility: Dirty windows and mirrors mean a driver's vision in impaired, and this can change very quickly, especially in the winter season. Without proper visibility, drivers cannot size up the whole scene.
Load Factors:
Many drivers following a rollover crash state that the load shifted and this is why the crash happened. The load probably did shift, but then you have to find out why it shifted.
- Improperly secured load: Federal rules require that a load not be able to move while in transit. A driver's responsibility is to ensure the load is properly secured. Have they been provided with the proper equipment? Have they been trained on proper load securement? Who checks?
- Excessive speed: The faster a driver takes any turn, the more force is generated on the load, and the more likely it will shift if not properly secured. A weight distribution shift to either side may result in a rollover. It may not happen on this turn, but how many turns are there to your next destination?
It all boils down to behavior, not only on the driver's part but for all members of the organization. Identification of the situational factors in one thing, but we must look beyond these and identify the reasons why the situations were allowed to develop in the first place. Managers should always be questioning if there is something in their system that could be reinforcing behaviors that allow dangerous conditions to occur. Interdepartmental differences in procedures, goals, and objectives may come into conflict with each other and reinforce certain undesired outcomes, such as a crash. An example of this is dispatching a load into an area of inclement weather and not time factoring for road and traffic conditions. This could potentially cause the driver to make poor decisions as he or she tries to meet delivery deadlines. Also, perhaps management is not using all the tools available to assess and coach drivers.
Many times we look at the driver and try to lay blame, figuring that they have the ultimate responsibility, not realizing the subtle (and sometimes not so subtle) influences on the driver's behavior. The key to all this is not to just look at the driver, but to look at what is influencing the driver to do what he or she does, the decisions he or she and others make, and the situation we put them in.
For additional information on safe driving, please contact your RMI HR Representative. |
| Workplace Safety Tip |
| Attractive Nuisance |
Businesses are used to having clients, vendors, contractors, delivery personnel, and other visitors on their premises throughout the day. But are you prepared for visitors you're not expecting?
Property owners, or tenants in possession of the property, have a duty of reasonable care to their customers and other visitors to protect them from hazards on the premises. A greater duty is owed to children who may or may not be invited, but who come on the premises because of an attractive nuisance. This duty comes from the "attractive nuisance" doctrine. The doctrine states the owner has a legal responsibility to make all reasonable attempts to prevent injury to children who may wander onto the property.
An attractive nuisance is a potentially harmful object or condition of the land that is so enticing to a child that it could lure them onto the property to investigate. Most natural conditions such as a pond or lake are not typically an attractive nuisance. Some examples of an attractive nuisance are:
- Swimming pools and fountains
- Machinery and power tools
- Playground equipment
- Fallen trees
- Damaged fences
- Wells and tunnels
- Paths and stairs
- Tree houses
- Empty buildings
- Abandoned vehicles
- Dangerous animals
- Chemicals
- Dumpsters
- Appliances
- Construction materials
- Sand pits
- Falling hazards (sinkholes, trenches, construction ditches)
There may be other items on your property that are not on this list that have the potential to be an attractive nuisance.
Because the rules for attractive nuisance vary by jurisdiction, it is important to determine the state and local laws where your property is located and follow the rules that have been established for securing attractive nuisances. Also contact your legal counsel for advice.
Check your property regularly to spot the types of hazards that might injure others. Depending on the item, consider removing it, moving it away from view, locking it away, or installing secure fencing near it. You can help reduce your liability by following these best practices.
- Eliminate the nuisance.
- Have old appliances removed from the property.
- Tow old, non-running vehicles away.
- Get rid of construction materials immediately after a building project is complete.
- Secure the nuisance.
- Remove doors or covers from large appliances awaiting garbage pickup.
- Keep sharp tools, power tools, and equipment locked away.
- Lock buildings.
- Store construction materials in a garage or shed.
- Install a secure fence around the hazard, using appropriate signs and symbols.
- Reduce the chance for injury from a nuisance.
- Install a pool cover and have a locked fence to prevent access to the pool.
- Fence or cover trenches and pits.
- Slope piles of soil so they are stable.
- Secure equipment doors and windows.
- Remove portable ladders and secure them.
For additional information on attractive nuisances, please contact your RMI HR Representative. |
| To access the online Workplace Safety Training Log click here. |
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