Managing Your Reputation Online - Part Three: Monitoring What is Out There

In Part One of this series, I introduced the risks. In Part Two, I outlined a checklist of preventive measures. Now, let’s look at some practical ways to monitor your business reputation in the blogosphere and other virtual spaces.

Keep your eyes open

Reputation (and brand) management is ultimately a legal issue, so some general legal principles seem appropriate here. One that American law students learn early in law school is that “equity favors the vigilant, not those who sleep on their rights.” Another legal concept is the “Limitations Period” (in Louisiana, “Prescription Period”) codified in statutes.

Where the statutes of limitation are specific laws enacted in the various states and by Congress and give set time limits to file a lawsuit or criminal charge after a violation of some other statute, principles of equity are typically less rigid and applied in the spirit of reasonableness. Both have the goal and effect of placing a time limit on when you can take legal action.

Some of the time periods begin when an action occurs. Others only when the injured party “knew or should have known” about it. It is the second part of that you should worry about. If your name has been misappropriated or your protected property has been stolen, you will have to show that you did not turn a blind eye or blissfully live without any of the reasonable efforts a prudent businessperson would have undertaken to protect his or her own valuable property.

Set up monitoring tools

What should you do to monitor yourself, then? With each medium, there are useful tools and ways to monitor for potential problems. These are a few of the better ones available today:

1. Search Engine Alerts. In today’s information age, it is not considered vain to set a Google Alert or Yahoo Alert to “listen” for your own name or other protected words or phrases. They are easy to set up and manage and then work tirelessly to continuously monitor for your selected terms among pages that these search engines index.

2. Social Media Tag Searches. Social media is raging into our lives. Who does not know anyone with a FaceBook, Twitter, MySpace or similar account? That means there is a lot of “chatter” out there, some of it not so pretty. You cannot ignore the SM world, even if you are not a participant at this point. Use free tools like the web-based TagBulb or downloadable TagFetch to watch for key words that people use to “tag” their comments.

3. Twitter. Twitter searching has become a world of its own. You already get the automatic “@username” feature in your Twitter home page that keeps up with every Tweet that includes your username. To broaden that monitoring, however, you need a tool. There are countless tools available now. If you use a third-party application to manage your Twitterings, look for features built in that let you filter and search. Otherwise, try TwitterSearch (same company, different web page) or TweetBeep tools.

4. Newsfeeds. This is getting into higher levels of technicality, but the tools are no more difficult to use than some of the others mentioned above. An RSS feed reader is simply another monitoring device that watches the “stream” of information flowing through the Internet. RSS (“really simple syndication”) is how many web sites these days send their content out when it is updated. It is very common for news sites, so you cannot afford to overlook it. Unless you have an aggregator like Gregarius, Bloglines or one of the many other RSS Feed Aggregators out there, you would have to check each individual RSS feed.

5. Video and other media sites. YouTube allows people to “broadcast yourself” and Flickr makes every photographer world-renowned (at least for a few seconds after posting). How do you sift through the noise? In addition to search engine alerts, consider something like Video-Alerts.com, a free service that specifically focuses on YouTube.

(Of course, each of the strategies above can also be used for monitoring trends in your industry or tracking competitors, but that is outside the scope of this series.)

Finally, during my research for this post, I found other useful posts on this topic that you might find helpful: A slideshow, “Why you should monitor social media” posted this week by Connie Bensen of Alterian; a good video essay on how some businesses use Twitter to monitor their own names, and a blog post on how to monitor your name on Twitter.

In a later post, I will focus on what action to take should you find a problem. Until then, get those alerts set up!

You know about the FMLA, but what about the SFMLA or MFLE?

Changes to the FMLA

By now most know that the Family and Medical Leave Act of 1993 (29 U.S.C. 2654) (FMLA) requires “covered employers” to give “eligible employees” up to 12 weeks of unpaid leave per year for their own or close family member’s medical care. Yet a number of organizations I have worked with are unaware of the changes in 2008 and 2009 to the statute and regulations. [1]

Even though you may not have employees who have been called up to active duty, do not assume that the so-called "Service-member's Family and Medical Leave Act," or SFMLA, is irrelevant to your business. There were two sets of changes to the FMLA in 2008 designed to benefit the men and women who have actively served in our armed forces and their families: one added added to the FMLA provisions to make them more clearly applicable to deployment-related situations; the other actually added a new 26-week leave benefit in lieu of the FMLA. Together, they are formally known as the "Military Family Leave Entitlements."

Qualifying Exigency Leave

The FMLA has always had a short list of qualifying events that enable an "eligible employee" to use unpaid FMLA time off from a "covered employer" without losing his or her job permanently. To that list, Congress added "any qualifying exigency arising out of the active military service of the spouse, child or parent of the employee." At first glance, this seems to be a huge expansion of FMLA definitions. According to the United States Department of Labor, "qualifying exigencies" include anything the employer and employee agree is a "qualifying exigency," but also:

° Issues arising from a covered military member’s short notice deployment (i.e., deployment on seven or less days of notice) for a period of seven days from the date of notification

° Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or or call to active duty status of a covered military member

° Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care facility, and attending certain meetings at a school or a day care facility if they are necessary due to circumstances arising from the active duty or call to active duty of the covered military member

° Making or updating financial and legal arrangements to address a covered military member’s absence

° Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or the child of the covered military member, the need for which arises from the active duty or call to active duty status of the covered military member

° Taking up to five days of leave to spend time with a covered military member who is on short-term temporary, rest and recuperation leave during deployment

° Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status, and addressing issues arising from the death of a covered military member

(emphasis in DOL original)

These extra benefits do not apply to members of the regular armed forces. They were expressly enacted by Congress to help the members of National Guard and Reserves who are called to active duty from their regular lives and should be seen and applied in that light. Qualifying Exigency Leave is merely a new basis for use of the 12-weeks of FMLA within a rolling 12-month period.

Military Caregiver Leave

The new leave benefit is a 26-week unpaid leave option for "eligible employees" working for "covered employers" who need the time either for themselves or their spouse, child, parent or next of kin. The 26-weeks must fit within a rolling 12-month window, just like the 12-week FMLA leave benefit. Eligible employees cannot add the two together: the FMLA's 12 weeks and the Military Caregive Leave can total no more than 26 weeks and only care for a covered servicemember can extend beyond the 12 weeks provided by FMLA.

Unlike Qualifying Exigency Leave, however, Military Caregiver Leave applies to both "regular" Armed Forces servicemembers and "reserves" called up from National Guard or Reserves. The serious injury or illness here must be incurred in the line of duty AND make the covered servicemember unable to perform the duties of his or her office, grade, rank or rating.

The Department of Labor maintains a good set of FMLA informational materials on its website as part of the Compliance Assistance section. Those interested in learning more can find a pdf Fact Sheet on the Military Family Leave Entitlements here.

NOTES:

[1] I will address the technical definitions of "covered employer" and "eligible employee" under the FMLA generally in a later post.

What You Should Know When Selecting Software for Your Organization - Part One

Software is expensive and changing your office work flow to adapt to any new system is time-consuming and stressful. Your organization expects you to make the best decision for a software solution that they can master easily and keep using for a long time without major changes.

It still amazes me to see software designed or configured to place extra work on the humans for the computer’s convenience. When shopping for software, here are some tips to help you assess not only viability, but usability.

1. Decide what you need and want, THEN shop.
2. Stay open to changing your requirements after you shop.
3. Let the actual users have a voice.
4. Keep the future open-ended.
5. Make a long-term decision.

Step one: Assess, then Search. Too many people do the reverse and window shop before they really have a solid sense of the features they need. Can you get more bangs for your bucks with a solution that addresses the needs of multiple units? Can you eliminate multiple software and information management systems with one purchase?

With the right people on your committee (even if it is only you), the process can move best by starting with the needs assessment. If you show the kids the candy store first, you may never get your shopping done. Better, ask product-agnostic questions of the business process improvement experts in each affected unit.[1] Hopefully, they already know the processes they need to improve or would like to, but for the archaic software they have to use.

>>>>What do you need to be able to perform your tasks more effectively?
>>>>What steps in your daily work could you eliminate with better technology tools?
>>>>Are there other important objectives you could address if freed from inefficient tasks?

After each of these, use the “What’s stopping you?” analysis to drill down to the functions relevant to your software search.

Q: What do you need to be able to perform your tasks more effectively?
A: Forms we can fill out onscreen, rather than paper that must be scanned into the database
>>>>Q: What’s stopping you from having these forms?
>>>>A: We need the ability to modify screens in our software as our needs change.

Now you have a feature that is real. One that addresses a business need without the emotion from those who fear change or hate your present software. Continue to build this list, even if some of the features are contradictory or extremely unlikely to be found in a commercial, off-the-shelf system (COTS). You are in the planning stage, so it is OK to start big.

In subsequent posts, I will explore some of the self-created risks many software buyers face during this important decision process as well as how to work through them.

[1] If you have not already gone through the BPI phase, review my earlier posts that outline a generic BPI plan and consider hiring a qualified expert to guide you.

Can You Safely Pay “Fees” to Representatives of Foreign Countries to Help Secure Business?

"Suddenly, without warning..."

Several years ago, a colleague of mine was a passenger in a car stopped at an eastern EU country’s border with another EU member country. My friend expected no trouble, but after the passports were stamped, the border guard began to give the driver an increasing amount of difficulty and walked him into the shadows away from where they were parked.

A short moment later, the driver returned to the vehicle and they drove off. After a mile or so, my colleague asked about the incident and the driver confessed that he had paid a small bribe to get them through. It turns out that the vehicle he was using to show my friend the region that weekend belonged to his father. The guard suspected as much and threatened to report some bogus charge to the revenue inspectors who might have conducted the equivalent of an extreme IRS business audit (only without the taxpayer rights we have here). To avoid the risk, the driver paid the equivalent of $40 USD and the guard allowed them on their way. And it had been his own countryman! He was returning to his own country, not entering another! Was this a bribe? You bet. Did it violate the FCPA? Let's take a look.

Background

The anti-bribery portions of what is known as the Foreign Corrupt Practices Act (FCPA) were written to address some of the ways American businesses were participating in corruption practiced in other countries.[1] As businesses expanded into the global marketplace, they ran head-first into “traditions” and “customs” that are illegal in the United States[2].

Senators William Proxmire and Harrison Williams introduced the bill with strong support from others in both chambers and lofty goals in the wake of Watergate. In reality, corruption is not unique to developing countries or those on other continents. The FCPA is also not entirely unique. However, U.S. and European Union countries appear to be the most stringent in holding domestic organizations liable for actions by their foreign employees, agents and subsidiary organizations.

Elements of an FCPA Violation
The FCPA applies to all companies who are subject to the jurisdiction of the Securities & Exchange Commission because they “issue” publicly-traded securities, as well as all “domestic concerns” (any individual who is a citizen, national, or resident of the United States, or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship which has its principal place of business in the United States, or which is organized under the laws of a State of the United States, or a territory, possession, or commonwealth of the United States). That pretty much covers the options.

Assuming you or your organization is within one of those definitions, it is time to examine the elements of a violation and some tips for staying out of trouble. There are four elements of an FCPA charge (15 U.S.C. §78dd-1(a)):

• corrupt intent


• connected with a "payment"


• to a prohibited recipient


• for a qualified business purpose.

Corrupt Intent. The issue of intent is generally key in criminal statutes and the FCPA is no exception. Simply put, was the payment intended to influence a foreign official to act illegally, or intentionally not act when legally required to do so, or induce such official to improperly use his or her influence to accomplish indirectly an act or omission that would be illegal if done directly.

Payment. Payment can be the obvious (cash, property, etc.) as well as merely the promise to give something of value (reciprocal official misconduct, e.g.). It is a defense to prosecution if the defendant can prove that the payment is legal in the official’s country. Likewise, if the “payment” is travel expenses for a lawful trade excursion to promote or demonstrate the company’s products or services—or if “payment” is directly related to the legitimate performance of a lawful agreement with the foreign agency or government—the defendant can avoid penalties.

Prohibited Recipient. The U.S. Department of Justice has this comment on whether a recipient is a “foreign official:”

The prohibition extends only to corrupt payments to a foreign official, a foreign political party or party official, or any candidate for foreign political office. A "foreign official" means any officer or employee of a foreign government, a public international organization, or any department or agency thereof, or any person acting in an official capacity. You should consider utilizing the Department of Justice's Foreign Corrupt Practices Act Opinion Procedure for particular questions as to the definition of a "foreign official," such as whether a member of a royal family, a member of a legislative body, or an official of a state-owned business enterprise would be considered a "foreign official."[3]

Business Purpose. Finally, the corruptly intended payment to the foreign official must be for the purpose of obtaining or keeping business—even if from someone other than the foreign government. The FCPA’s primary purpose, after all, was to address the wide-spread practices by major companies of paying bribes to gain an unfair advantage over smaller rivals or Uncle Sam himself (which begs the question as to whether the issue would have garnered Congressional attention if all companies of all sizes could equally have afforded to “pay to play”).

Analysis of the Bribe
The driver in our story definitely made a payment to a government official. The payment was illegal under his country's laws, and made to influence the official to act or fail to act. We have two elements and have knocked out one affirmative defense.

But that is as far across the FCPA line as this story goes. There is a strong argument that the border guard was only dissuaded from his own illegal or improper act, but we do not know enough about that country's laws to be sure. On the other hand, the key element missing from the story is the lack of a business purpose by my colleague. Even if the payment never touched my friend's hands, had this payment been paid with the intent to obtain or keep business, then without any warning or opportunity for the American parent company to act to prevent the violation, an FCPA violation might have occurred. Without any connection to gaining or keeping business, then, my friend appears safe this time.

Compliance Begins at Home
No doubt, the FCPA crossed my colleague's mind when the driver confessed miles down the road to paying a bribe to a border guard. Had my friend been better versed on the FCPA, he might have gotten more rest that night. Here are some practical steps you can take now to sleep better yourself.

Policy. Begin with an understanding of the law and a thorough anti-corruption policy review in your U.S.-based company and all of its subsidiaries and members. If you do not already have a clear, blatant policy that prohibits all influence compensation and all efforts to directly or indirectly improperly influence government officials everywhere[4], draft one now and publish it to all staff. You must avoid any appearance of impliedly condoning that which you have not strongly discouraged.

Training. Follow that with training to all staff on why you have the policy, what actions are prohibited, the potential penalties to them individually and the company and how to report anything they feel may violate the FCPA. Keep records of the dates and attendees at each such training and be prepared to show them to auditors and potential investigators.

Safe Harbor. It is important to have a policy that encourages self-reporting and sincere efforts to comply or remediate violations. Consider a whistle-blower clause in your policy that provides reasonable protections for innocent staff who report FCPA violations. Beware the self-serving tattle-tale, however, who may want to benefit from an action he or she reports.

Conclusion
There are myriad scenarios that can arise when conducting business abroad or with representatives of foreign governments and businesses. This article is not intended to give legal advice or to take the place of an open, honest evaluation by a qualified attorney in your jurisdiction. The most that any post such as this can do is help you understand the questions you should ask your own legal counsel.

The risks are high: fines in the millions of U.S. Dollars and imprisonment for years for each violation. Not the kind of reward you want for your business or yourself.

Notes

[1] These sections are found at 15 U.S.C. §78dd-1 through §78dd-3.
[2] It is beyond the scope of this post to take on the relative moralities and legalities between corruption that has existed in the U.S. versus abroad.
[3] “Foreign Official” http://www.usdoj.gov/criminal/fraud/docs/dojdocb.html. The USDOJ site has a valuable Fraud section with the text of statutes, analysis and the Attorney General guidance mandated by the FCPA.
[4] Public companies are under additional accounting and record-keeping rules designed to make assets traceable and records of asset dispositions auditable, but those are outside the scope of this post. And with ratification in 1998 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, anti-bribery rules have risen to the level of international treaty. More on that in a subsequent post.

Business Process Improvement for Nonprofits - Part 9: Final Step?

Step 9 – Start Again

This is not like the penalty card in some board game that sends you back to the beginning. Instead, see this as closing a loop and taking the opportunity to circle back through the process in a healthy, endless review and improvement of your business processes.

As one process improves, it may help you identify others that need improvement or even pave the way to improve related processes you could not have changed before. As your staff gets on the BPI wagon, they will start spotting opportunities for even minor improvements in isolated processes. Finding ways to improve the work they do makes the work itself more interesting in some ways and certainly focuses their minds where you want them: thinking about the best way to perform their responsibilities at work.

If you collect your project materials in an electronic folder, review and update them to adapt to each new initiative, and document the baselines before and performance results after your changes, you will develop quite a history of progressive improvement for your department or entire organization. It will become a legacy anyone can be proud of.

Here is the final outline of this series of posts:

1. Diagnosis/Assessment: “What is happening now?” “Exactly how do we do everything that we do?”

2. Analyze Workflow: “Is this the best way we can operate?” “Do we need to do any parts of our work better/cheaper/faster/with fewer people?”

3. Identify Options for Improvement: “Where can we work differently?”

4. Design new processes or steps: “What will work for our organization?”

5. Gather feedback: “Is this in line with the organization’s mission?” “Does it actually improve the way we work?”

6. Test the new workflow: “Does it work in the real world?”

7. Monitor the results: “Are we getting the results we sought?”
8. Diagnosis/Assessment: “If no improvement, why?” “If that worked, what else can we improve?”
9. Begin a renewed effort: no process is perfect and no office runs perfectly. There is always room for improvement!

Happy BPI'ing!

Managing Your Reputation Online - Part Two: Protect What You Can

In Part One of this series, I introduced the risks. Here, I want to provide a check-list for small business and nonprofit managers to use as a guide in their efforts to take preventive measures.

1. Register any TMs you want to keep. The United States Patent and Trademark Office has a good page of FAQs to help you determine what type of registration--if any--you need. For most registrations, you do not need an attorney. The PTO has an online Trademark Electronic Application System. For copyrights, no registration is necessary, but some people prefer to do so. The U.S. Copyright Office also has an online registration page.


2. Mark all Copyrights and Marks you claim. Use the "TM" for trademarks and "SM" for service marks for the ones you claim, whether or not you register them. Only after registration can you use the "®" symbol. Copyrights can be publicly proclaimed with a "copyright notice" much like you see in printed materials showing the symbol or word "copyright," the year of first publication and the owner's name (e.g., "©2009 Your Name").


3. Reserve all rights. Although the trademark, service mark and copyright "marks" plainly flag your intellectual property ("IP"), some holders go farther and add--especially on copyrights--words such as "all rights reserved." This tells the world that you have not waived any rights to your IP and want to be contacted for permission before use. It is not necessary and does not really have legal effect, but also does not hurt anything.


4. Provide a process for obtaining permissions and licenses. If you want to help others honor your IP rights and seek permission before using your IP, then avoid the common mistake of failing to provide a way for them to find and ask you. Post contact information in the material, for example. Photographers can register their artwork at sites like Photrade.com. The point is to make it easy to find you so they can ask permission and give you a chance to grant it (with or without payment).


5. File for any patents you want. All the above information is NOT applicable to patents. Patent applications are, well, different. Though it is not required, it is highly advisable to seek legal assistance with any patent application or response to PTO questions or challenges. It also surprises people to find out that the information they submit to the PTO becomes public. That is because the very act of getting a patent is not to keep your secrets, but to keep your rights to the unique product or process.



6. Be Consistent with using and labeling your IP. If you have unregistered TMs, SMs or Copyrights, be sure to always tag them with those little symbols. Once per paragraph or page is enough, but always on any exterior text or artwork. You want everyone to know that you know your rights and are intent on protecting them.


7. Educate your staff. When do they use the TM or the ©? What do they do if someone outside your business asks to use the mark? What can be claimed as a SM? If you have to, bring in an IP lawyer to give a quick training class. Some will do it as part of their business development efforts (especially if you at least provide lunch) and others offer it to clients who use their services.


8. Register with third-party problem-solving organizations like the BBB and BBB Online. You can do everything right and still end up with a dispute that can damage your reputation. Register in advance and be prepared to use the alternative dispute resolution services if you cannot resolve the dispute with a letter or phone call. You are not in the business of litigating over customer or IP issues, so the faster you can resolve minor matters, the faster you can return to your primary mission.


9. Take all customer complaints seriously. These days, it takes very little for a disgruntled customer to proclaim to the world how sorry your product, staff or services are. They can email all their friends, post a very descriptive story on their FaceBook or other social media site or go global with a video diatribe on YouTube. In fact, while sitting on hold or standing in line, they can "Tweet their beef" to the entire world with only a cell phone.


10. Make sure you have good quality control systems. The best problem solving system is a problem prevention system. Take QC seriously and make sure your customers know it. Give them an EASY way to provide feedback and suggestions. Invite them into the dialogue with you on how to improve, then listen to what they have to say. It is much cheaper than cleaning up a mess after the fact.


11. Bolster your reputation with good testimonials BEFORE any bad ones arrive. This is even better than an “ounce of prevention.” Elicit quotable feedback and display the positive comments prominently. It builds your relationship with the quoted customer and helps others see that perhaps their dissatisfaction is not the norm. These must be honest and you must get permission prior to publication, but even customers who decline will be glad you asked.

My next segment in this series will cover monitoring your digital reputation.

Environmental Issues Can Arise In Everyday Life for Small Businesses

How much effort do you put into ensuring compliance with environmental laws? If you think they do not apply to your business or cannot become a risk to your operations, consider this story.

A small business came to me for help with a contract dispute. The business whose assets it was buying filed for bankruptcy before the deal was finished. A party’s bankruptcy can definitely ruin a good deal, but this one took some unusual turns. The bankrupt company had every intention of selling its assets to my client. It was so eager to liquidate, in fact, that the employees essentially loaded everything into trucks in one state and had it all delivered to my client a few states away.

It looked like the only thing left to resolve was payment. That is, until they opened the trucks on the receiving end. To their surprise, there were numerous unmarked barrels of unidentified substances in the trailers and no paperwork to explain them. If you know anything about federal or state laws that regulate hazardous chemicals, you have likely guessed where this is leading.

The RCRA
The Resource Conservation and Recovery Act (42 USC §6901, et seq.) was originally enacted in 1976 to address the growing consequences of municipal and industrial wastes that were causing increasing problems as industry evolved faster than the regulations. Both “hazardous” and “solid” (though not necessarily hazardous) wastes are carefully defined and regulated under different sections of the statute and different regulations.

The key part of RCRA is subtitle C, where Congress fashioned the “cradle to grave” concept to track regulated substances from the creation point until disposal. The Environmental Protection Agency [1] was charged with creating regulations[2] and procedures to accomplish this task.

The federal regulations that applied to those mystery barrels transported across state lines are discussed on the EPA site’s Manifest pages for Transporters. The Hazardous Waste Manifest System is a set of forms, reports, and procedures designed to seamlessly track hazardous waste from the time it leaves the generator facility where it was produced, until it reaches the off-site waste management facility that will store, treat, or dispose of the hazardous waste. The system allows the waste generator to verify that its waste has been properly delivered, and that no waste has been lost or unaccounted for in the process.

The RCRA "Bite"

The teeth in RCRA are in 42 U.S.C. § 6928: violators face civil penalties up to $25,000 per day for violating a compliance order as well as criminal fines of up to $50,000 per day or imprisonment up to two years for the first offense, double for a subsequent offense. If the violator is a person who knows at the time that his actions risk imminent danger of death or serious bodily injury to another person, the fines can go up to $250,000 and the prison sentence to 15 years. For a business so convicted, the fine can be $1 million. Note well that these penalties even apply to used oil that is not regulated under RCRA!

Armed with the information above, my client had a significant bargaining chip to use to bring the matter to a prompt, acceptable result. The seller had either knowingly transported or caused to be transported “without a manifest, any hazardous waste or any used oil not identified or listed as a hazardous waste under this subchapter required by regulations promulgated under this subchapter (or by a State in the case of a State program authorized under this subchapter) to be accompanied by a manifest.” (42 U.S.C. § 6928 (d)(5)) Compliance was simple—label the containers and list them on the truck’s manifest—but had not occurred. In disregarding those steps, the seller had thereby put my client into risk of sanctions had it not reported the incident.[3] Had the seller not violated RCRA, the matter may have been protracted in bankruptcy court for months longer and with uncertain results.

Environmental Law Compliance

So-called “environmental law” conjures images that most small businesses cannot envision for themselves. Yet, there is no minimum quantity rule that exempts those who produce, store, transport or dispose of regulated materials.[4] When in doubt, your business should request a manifest before accepting delivery of any substance that you are not certain is unregulated. If you do not know whether your activities are regulated by the RCRA, you should review widely-available online resources to confirm that any substances or materials you produce, including useable products, or discard are not covered.[5] Even though recycling can remove certain materials from the manifest system requirements, materials such as electronic components require special handling to protect the environment, waste disposal workers and your organization.

Compliance is relatively simple unless you are a hazardous waste disposal company or produce huge amounts of regulated wastes that you do not sell. Non-compliance can put you out of business.

Notes
[1] The EPA’s website has good resources for understanding which wastes are regulated, what to do in case of an accidental spill, and even a public database of documents and guidelines.

[2] The EPA’s Hazardous Waste Regulations page has links to federal regulations that make up the Hazardous Waste Management System. Regulations that govern non-hazardous wastes regulated under RCRA are described on a separate Non-hazardous Waste Regulations page.

[3] Most states with environmental regulations have mechanisms for voluntary reporting of discovered violations that provide a window for penalty-free remediation to regain compliance.

[4] To find RCRA compliance guidance on a state-by-state basis, use tools like the ones in this gateway from the Environmental Compliance Assistance Platform (a project of the National Center for Manufacturing Sciences (NCMS) with support from the U.S. EPA).

[5] For a better understanding of environmental regulations that may apply to your business, try the National Compliance Assistance Centers portal (also supported by EPA).

When Hiring, Consider Firing First

Beginning With the End in Mind

When hiring new staff, few managers think about the possibility they may have to fire or lay off that employee. Yet, as with prenuptial agreements, the best time to prevent problems at separation is when the relationship begins.

Even though you hire someone without an employment contract (known as “at will employment” in many states), you can still have other agreements that are enforceable but do not change the nature of the employment into a contract. Some companies actually go to the extent of having employment contracts with everyone for two-week terms, renewable every two weeks unless and until a violation or termination event occurs. For the purposes of this article, I will use “employee agreement” to mean terms other than length of employment.

Your employee agreement should address issues such as those that may arise before, during or after employment. Make the agreement a condition of hiring, to be clear to everyone how important the terms are. Get existing employees to sign one, such as to continue employment at their anniversary, upon promotion or to receive a raise. That satisfies the need for “consideration” unambiguously.

A Checklist

1. Acknowledgement that employee has received and agreement that the employee will read and adhere to policies and procedures. Can you show an auditor that your employees actually received their policy manuals? This is an annual agreement in many places, coinciding with the delivery of updates to the organization’s written policy manual. Get a signature that establishes the employee received his or her copy and promises to read and abide by them. It is not essential to proving those facts, but it helps.

2. Agreement that the employee will not violate criminal laws while performing job duties or on worksite or using employer property. It seems like this would be unnecessary. Why do you need someone to agree to avoid actions that are already illegal? Yet, as many international businesses know, it is essential that the organization show that illegal behavior was not permitted, condoned, promoted or implicitly rewarded. How would you show that? Start with policies that expressly prohibit illegal behaviors, from outright bribes down to cutting regulatory corners, then continue hammering the message with periodic compliance reviews and training on the rules applicable to their jobs. Together, these will help your organization defend itself should someone go astray.

3. Agreement that the employee will keep employer's and customers' secrets. This provision deserves careful drafting. You may have additional responsibilities to accommodate on confidentiality due to professional standards or customer contracts. “Secrets” is a term that means different things in different contexts. Try to define it anyway. Be specific AND general. Supplement with training and periodic reminders of how easily secrets are leaked and stolen, as well as the potential damages that can result.

4. Agreement regarding ownership of intellectual property rights for works created during the course of and term of employment. It is as old as artistry itself: the debate over who owns works created by someone while in the employ of another. Laws attempt to clarify the matter, but sometimes do the opposite. Even worse, some contracts applicable to the organization may contravene local laws where the employee is working or the organization’s agreements with its staff. Do not limit your concern to patents, for copyright is the most common protection and applies to more work than others, especially in today’s “information age” organizations. And keep in mind the growing blur between work and non-work areas of your employee’s lives. What about ideas or blog posts written at 2 a.m.?

5. Agreement that the employee will cooperate in compliance reviews and investigations of compliance issues during and after employment. Get this one up front and remind every hire how important compliance is to you and your organization. Nothing positive is gained from being unclear here. By stating expectations and values at the beginning of the relationship, you will be more likely to see those values throughout the term.

6. Agreement that the employee will submit to additional screening deemed necessary by employer to perform job duties or enter certain work sites or work on certain projects. More and more employers require pre-hire drug screening. Those in sensitive industries have policies for additional screenings after start date. You generally want everyone on notice that you may require an individual to submit to screening upon ANY indication that his or her performance may be impaired. Whether you ever need to use this or not, put them on notice at the outset and help avoid problems later.

7. Agreement regarding use of company property and facilities. What happens if the employee loses his or her company-provided smart phone? What if client files disappear the last week of employment?

Important Notes

This article is not intended to give legal advice to anyone. It is merely to serve as a discussion-starter. You should consult with qualified legal counsel regarding the specific laws in your area, because they vary extensively from state to state. If your employees have a collective bargaining unit, of course, other rules and limitations will apply, but the guidance above may still be within your reserved management powers if not specifically addressed in the union contract.

For a guide when settling employment law disputes, read this article by Robert B. Fitzpatrick: http://www.robertbfitzpatrick.com/images/settlement.pdf. Although published in 2003, it serves as a good starting point in the event your efforts to prevent employment issues are not completely successful.