Hey Compliance Warriors!

Today on the podcast we’re talking policy changes! We gives some good practice tips when changing policies and also talk about a case study about a poorly handled situation when a policy was changed!

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Enjoy and until next time, Be Audit Secure!


Lisa: Welcome to another edition of small business spoonfuls. I’m Lisa Smith,

Mason: And I’m Mason Merrell.

Lisa: And today we’re talking about trips and falls that you can experience with your policy changes.

Mason: Yup. This can be a sticky situation. You want to make sure that everybody is acknowledging these new policy changes. So we want to talk a little bit about that and talk about a little bit of a case study that came up on this type of situation.

Lisa: Exactly. So, we know that the DOL, that department of Labor has said we can have electronic policies, right? Everybody’s going into electronics these days. I mean not everybody, but a lot of people are and that’s totally cool.

Mason: Yeah it’s great cause you can just send them via email. You’re not wasting a lot of paper, you know the whole thing but, the point here is you want to make sure that these policies are seen and are acknowledged.

Lisa: exactly. And so if you are not sure that someone is seeing a policy, make sure you get a signature on it. And if you can’t, I should not even say, not sure if you can’t prove it. So, if you don’t have a good tracking system with your HR software for instance, where you get read receipts coming back or you get some sort of electronic signature. Then you’re going to need our print that policy at when it changes, give that to the worker and have them sign it. Maybe even give them a whole new handbook if that’s what we need to do but we want to make sure we’re covered.

Mason: Yep. Have two copies too. Sign your copy and their copy.

Lisa: Yeah and so in this court case that we’re discussing today, this was a particularly heightened situation because their legal rights and obligations where being affected here. So, we’ve got a situation with a gentleman who sued his employer for disability discrimination. The company said that he wasn’t allowed to sue because a few months ago they had changed the policy that he had agreed to, which was not able to be proved that he must arbitrate disputes out of court or that any employee who had a dispute could not sue the employer that they must to go through arbitration.

Mason: Yeah. So, the company could prove that they sent the email to him because it was a probably a mass email type situation but they couldn’t prove that he had seen that email. That’s where the problem was.

Lisa: Right. So they couldn’t prove that at all and they just said, you know, we sent it to everyone, so nope. If nobody complained, then that was consent. That they had read it and they agreed to it, but they didn’t have any signatures. Then again did not have proof that he read it because that’s exactly what this guy said. He was like, I never saw that email. I did not know what you’re talking about. Now. Guess what? We don’t know if he saw it or not.

Mason: That’s what he’s saying.

Lisa: The proof? The burden of proof is on the employer. So the guy can be like, “I never saw it.” They don’t have to do anything except say I didn’t see it. I mean, where are you going to go from there If you can’t prove he did. You’re dead in the water.

Mason: There’s nothing you can do. So, let’s talk about it. This situation ended badly. The guy ended up suing for discrimination, disability discrimination and the whole thing. They were probably out a bunch of money. It doesn’t exactly say here in the article, but what can we do to make sure we’re covered?

So we talked about obviously in this day and age there’s two types. There’s digital and physical, which physical’s not always a bad way to go, but when you’re changing many policies and things like that, that can have a lot of paper involved. So, the point is to have it signed, have two copies, your copy, their copy showing that everybody’s been acknowledged, everything’s been done, but say you’re doing this digitally, a digital signature? Is that what they need for the acknowledgement?

Lisa: Yeah. And you know, the federal government puts out electronic guidelines on what we need to do. So, you definitely want to look into those. Yeah, but bottom line is: if you have a verified tracking docusign or something like that, usually those kinds of systems work very well because they can be traced right back to the individual that signed it in the computer they used and the time of day and everything. And so that’s very, very helpful. However, If you’re not going to go down that road, you know, just again, if you’re not sure, print the thing out and have someone sign it.

Mason: Yeah. If this would be something good to add into your employee onboarding, say you do all your documents digitally, part of that onboarding system is getting them set up with docusign or whatever they use. So when that thing comes in, there’s the signature, click, their signature is in there. It’s all verified.

Lisa: That’s it, man. That’s what we need to do. And again, you make a really good point. If we start this from the beginning. There won’t be any question on how things should take place.

Mason: Yeah, that’s right. Just one question here though. Say you send out this mass email or send it to them directly however you want to do it. If you in the email say respond to this as verification that you got it and they respond to it. Now can that be considered as signing if you can show that email chain? Would that have been considered a signature in this court?

Lisa: You know, that’s a good question. We don’t actually know because in some cases the court has upheld that that was good enough and even they didn’t respond back, but just the fact that the email was sent and it went into the box and the policy is you read all the email in your box and you know, so forth. Some of those things can be, but since in this case an employee was surrendering their right to sue. That was where you really needed to prove that they consented to that.

Mason: Yeah this was a bigger deal. Well you know, so the point of this is just make sure they’re signing the policy changes. Don’t take a risk in an email chain and things like that. Set up your docusign or print it out whatever works best for your organization and your employees. Maybe that employee wants paper, he might be just kind of old school and he wants a paper handbook. Nothing wrong with that. Just make sure they have it.

Lisa: And you know, DOL uses the term all the time, “clearly communicated policies” and this is basically bottom line. Be able to defend yourself. If you say that email: “was clearly communicated, everybody saw it, but him, you’re going to tell me, everybody said they saw it and he didn’t!?”, Well yeah, I am going to tell you that because you cannot prove itAnyway, so when in doubt, printed out, right?

Mason: Yup. A good policy to live by. All right, well, that was another good one. Until next time. I’m Mason Merrell.

Lisa: I’m Lisa Smith. Be Audit secure.

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