Articles Posted in Uncategorized

By Lane V. Erickson, Attorney

As an employer you have faced this situation many times. You completed the job application. You narrowed down and interviewed your top choices. All of your hard work paid off and you found the right person for the job. You are excited to hire this person and have them begin working for your business. But wait a minute. You have 4 or 5 other applicants who are not going to get the job. 　Now you have to let them know they didn’t get the job. The truth about being an employer is that how you treat those individuals who are being rejected for a job matters. Every situation is an opportunity to build goodwill and a positive business image, including sending out rejection letters.

Sometimes rejection letters are known as a “no thanks letter.” When a rejection letter is viewed as an opportunity, it can end in a positive result for everyone. For instance, when an employer believes that the candidate would qualify for other roles in their company the employer could let the person know that they should apply for a different position. Alternatively, the employer could encourage the applicant to apply again in the future. When a rejection letter is positive, it can maintain a good relationship.

By Lane V. Erickson, Attorney

We all seen them and have likely filled several of them out during our working careers. I’m talking about job applications. Employers use job applications as a tool when hiring as a way of ensuring that they are weeding out potential problems and hiring the employee who will make the greatest contributions to the business. In working with employer clients I often discuss with them the 3 most important questions about using job applications in the hiring process.

1. SHOULD OUR BUSINESS USE A JOB APPLICATION?

By Lane V. Erickson, Attorney

It doesn’t really matter whether you have 10 or 10,000 employees, your business, or any business with employees will gain a direct benefit from having well written, accurate job descriptions. 　Accurate job descriptions in an engagement letter or an employment agreement helps to eliminate confusion. More importantly, having an accurate job description also ensures that all duties of the job are assigned efficiently and to employees who are qualified. The most import benefit from having well written job descriptions is that they help protect the employer when things go bad.

1. START OFF RIGHT

By Joseph G. Ballstaedt

Usually a non-compete agreement refers to a contract between an employer and an employee whereby the employee agrees not to engage in a trade or profession that competes with the employer’s business. Sometimes these agreements are called “non-compete clauses,” “covenants not to compete,” or “restrictive covenants.” They generally extend beyond the term of the employment relationship. For example, a hospital may want a doctor to sign a non-compete agreement prohibiting an employee doctor from practicing medicine within 50 miles of the hospital for a year after employment. This agreement would protect the hospital’s business since the doctor couldn’t quit, start up a private practice in the same area, and steal patients from the hospital—at least not without breaking the non-compete agreement and risking being sued in court.

Although almost every state, including Idaho, allows non-compete agreements, a few do not. There are good policy reasons behind allowing non-compete agreements, including allowing parties the freedom to contract, protecting legitimate business interests, and incentivizing employers to provide expensive on-the-job training. On the other hand, others argue non-competes hurt the economy because they stifle worker mobility and the spread of ideas. Also, some claim non-competes create unemployment because people are prohibited from using their professional skills. Low-skilled employees such as fast-food workers seem to be especially harmed by non-competes.

By Joseph G. Ballstaedt

In Idaho, you may be eligible for unemployment benefits if you meet monetary eligibility requirements and personal eligibility requirements. You must be ready and able to work, and you must have quit your previous job with good cause related to the employment (wages, hours, working conditions of the job, etc.) or, if you were fired, you cannot have been fired for misconduct related to your employment.

After you file for unemployment, the Idaho Department of Labor will make an “Eligibility Determination,” the first decision made on your claim. The Department makes this determination using facts gathered by the local office. Following this initial determination, there are three higher authorities that can hear appeals.

By Lane V. Erickson, Attorney

The termination of an employee will be controlled by either an existing employment contract or Idaho’s “at will” doctrine.  However, regardless of which of these applies to the employment relationship, it is illegal for an employer to terminate an employee in violation of public policy.

According to the Idaho Supreme Court, the right to discharge an at-will employee may be limited by considerations of public policy, such as when the motivation for the firing contravenes public policy.  Jackson v. Minidoka Irrigation Dist., 98 Idaho 330 333, 563 P.2d 54, 57 (1977).  Public policy of the state of Idaho is found in its constitution and statutes.  Boise-Payette Lumber Co. v. Challis Independent School Dist. No. 1 of Custer County, 46 Idaho 403, 268 P. 26 (1928).  The public policy expressed therein may serve as a basis for finding an exception to the employment at-will doctrine.  See generally, 82 Am.Jur.2d Wrongful Discharge § 19, at 692 (1992). The determination of what constitutes public policy sufficient to protect an at-will employee from termination is a question of law.  Quiring v. Quiring, 130 Idaho 560, 566, 944 P.2d 695, 701 (1997).

By Lane V. Erickson, Attorney

Both Idaho law and applicable Federal Law require that an employer pay an employee for all hours worked. Sometimes it is clear what is considered on duty time.  However, sometimes it is not.  In Idaho, hours worked does not include:

• time to be spent by an employee travelling to and from the workplace, in productive work preparation, changing clothes prior to and after a work shift, taking showers, attaining and returning work tools and equipment, when a business, industry, plant, mine, factory or workplace has a custom or practice of treating such time as non-compensable time;

By Lane V. Erickson, Attorney

In Idaho, employers have a duty to protect others from the foreseeable harmful conduct of its employees.  The two types of cases that are usually brought against an employer when an employee engages in intentionally harmful conduct to others are negligent hiring and negligent supervision.

In the negligent hiring area Idaho has few cases.  One worth discussing is Doe v. Garcia, et al., 131 Idaho 578 (1998).  In Doe, the employee worked for a hospital as a respiratory therapist.  However, the hospital, in hiring the employee, failed to request the employee’s personnel file from his previous employer.  In failing to obtain this personnel file, the hospital failed to learn that the employee had been fired from his previous job because he had sexually molested a patient at his previous job.  While working for the hospital, the employee admitted to a staff member the reason for his previous termination.  However, the hospital took no further action.  While working, the employee treated Doe, who was a minor and developed a friendship with him.  The employee was later discharged by the hospital for encouraging under-aged employees to consume alcohol.  After his termination, the employee sexually molested Doe.  Doe filed suit against the hospital alleging that it was negligent in hiring the employee.  The district court ruled in favor of the hospital.  Doe appealed.  The Idaho Supreme Court reversed and remanded the matter to the district court for further proceedings stating that a genuine issue existed as to whether the hospital was liable and whether it should have foreseen that the employee would use his position within the hospital that would lead to the molestation of Doe.

By Lane V. Erickson, Attorney

In Idaho the limits of using off-duty conduct in an employment decision are mostly controlled by either an employment agreement or the “at will” doctrine described above.  However, some exceptions to this may still apply.  Using social media as an example illustrates these narrow exceptions.  While none of the incidents reported below occurred in Idaho they likely will in the future.  As reported:

May 25, 2010, Brixx Wood Fired Pizza waitress Ashley Johnson was pretty fired up about the couple that lingered three hours over lunch, made her work an hour past her quitting time – and then left her only a $5 tip.  So Johnson, 22, did the 21st century equivalent of griping to the kitchen staff (or the bartender down the street): She vented on Facebook. “Thanks for eating at Brixx,” she wrote, “you cheap piece of —- camper.” (For the record, the $5 tip was 17 percent of the customers’ bill.)

By Lane V. Erickson, Attorney

Scene from the TV series The Office:

Michael Scott:“Yeah, Ryan snapped at me. But there was this twinkle in his eye, that I picked up on, which said, ‘Dude, we’re friends. I’m doing this for appearances. I am the big boss now. And I have to seem like an ogre. But you know me, and you trust me and we like each other. And we’ll always be friends. And I would never take you for granted in a million years. And I miss you, man, and I love you.’. . . His words.”