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Going green without going into the red

How employers can be environmentally conscious without getting sued

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Employers are increasingly “going green” to protect the environment, improve public opinion, reduce costs and enhance retention and recruitment.

However, California employers hope these efforts to go green do not accidentally push them into the red by creating substantial legal liability. This article will highlight some common human resource green-related practices and attendant legal and practical considerations.

The ‘paperless office’ -- some legal considerations

Reducing paper consumption through electronic checks, wage statements and time records is a common employer initiative. Fortunately, California law provides some bright-line rules for reducing paper usage while complying with wage and hour technicalities.

For example, the traditional paper paycheck may soon go extinct as employers turn to direct deposit. California permits direct deposit of employee wages provided the employee authorizes this payment mechanism, the employee chooses the location and the deposit is made in a financial institution located (but not necessarily headquartered) in California. Direct deposit of “final wages” is also permitted provided the employer complies with applicable statutory deadlines. The Division of Labor Standards Enforcement (DLSE) has also approved usage of “payroll debit cards” or “pay cards” provided employers comply with the general requirements for direct deposits (discussed above) and the employee has immediate access to the entire amount without discount.

Employers must provide employees with itemized wage statements or face statutory penalties. The DLSE has authorized employers to provide electronic wage statements as long as the electronic version contains all legally required information and is available the same day as the wages; the employee retains the right to receive a written copy; the employee is able to access the electronic copy easily and print a paper copy without charge; and the employer utilizes sufficient safeguards to maintain confidential information. Employers must also comply with general record-keeping requirements for pay-related documents, including maintaining them for three years, permitting inspection by current and former employees, and making hard copies available for DLSE inspection in California, even if the electronic database is outside California. Unlike direct deposits, employers need not obtain employee approval for electronic wage statements.

Employers are also increasingly using electronic time records for non-exempt employees. Electronic time records are permitted provided the employer ensures the accuracy of these records; the employer bears the burden of proving hours worked if the electronic version is lost due to mechanical/electronic failure; and the employer must provide printed copies upon employee or Labor Commissioner Request.

Employers are increasingly distributing handbooks and key personnel policies electronically to reduce paper usage, decrease printing/distribution costs and permit easy revision. There are no federal or state laws directly regulating electronic handbooks, although there are a number of indirect legal and practical considerations employers should take into account.

For instance, electronic distribution does not eliminate the employer’s general duty to “post” certain information (i.e., EEO posters) or potentially to hand-deliver certain information (such as UEI pamphlets). Employers may also need to provide non-electronic versions of policies to accommodate disabled employees. Employers must also consider how they will ensure employees receive, review and acknowledge receipt of key policies such as at-will disclaimers, harassment policies or arbitration agreements.

Other practical considerations for electronic handbooks include how the employer will ensure all employees can access these policies and whether both electronic and non-electronic versions should be required, and if so, whether multiple versions will cost more than they save. Other considerations include how the employer will track changes to demonstrate which policies were in effect when, and how employers will assuage employee concerns that they are not monitoring which policies an employee accesses (i.e., alcohol rehabilitation, maternity leave, etc.).

Other considerations of going paperless

Employers should also consider the practical and legal obligations that result from retaining employee-related information in an electronic versus paper format. For instance, employers should consider how they will address employee requests to inspect their personnel files or pay-related records. Another consideration is how going paperless might create additional obligations in future electronic discovery disputes. Employers should review their retention policies to ensure electronically stored information is not disposed of prematurely or accidentally maintained forever.

Since electronically stored employee information is arguably less safe than the paper version previously stored in Human Resources’ locked cabinet drawers, employers should review their computer/data protection policy, evaluating their technical safeguards (i.e., encryption software) and outline how data will be stored and accessed. Employers should also understand their legal obligations for security breaches and know how they will respond. Employers must also understand their obligations to safely dispose of personal information when discarding computers or other electronic media.

Telecommuting

Telecommuting potentially presents a win-win-win situation for the environment, employees and employers. But since not all positions are amenable to telecommuting, and since technology is currently outpacing the law, employers must again anticipate numerous legal and practical risks with remotely connected employees.

Initially, employers might consider whether other alternatives -- such as carpools, alternative workweek schedules, etc. -- might be more beneficial. Employers also need to consider numerous wage and hour issues for non-exempt employees, including how to limit and track hours worked, prevent overtime and ensure meal/rest periods are taken. Employers might also consider how telecommuting might affect ADA/FEHA accommodation issues to the extent that workplace physical attendance is no longer an essential job function. Another consideration is how confidential information will be accessed and protected, and potential ownership issues regarding property used during telecommuting. While OSHA does not currently require home office inspections, employers should consider employee safety generally and potential workers’ compensation issues.


Kalt is a partner at Wilson Turner Kosmo, where he represents employers throughout California in litigation, counseling and training matters.

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