The Employer's Legal Resource: An Editorial Comment About Forms Sold On The Internet
Usually, we try to provide the readers with information about new laws or insights from cases decided by courts. Occasionally, I feel the need to share an "editorial perspective." This is such a time. With all editorials, you are free to agree or completely disagree.
We are forever giving you advice about what you might do to better your ability to comply with various employment laws. Not just us. I'm sure you are bombarded with what you should do, best practices, etc. I'm sure it's exhausting and sometimes confusing. For those of you with employees in multiple states, it is even more complicated. How does an employer manage all of this, especially a small or mid-size employer – one without an in-house legal department or perhaps without even a human resources department?
Sometimes, it seems like the easiest thing to do is just buy a form. Heck, they are everywhere. You can buy a handbook, an individual policy, an employment contract, you name it. While in some cases it might work, there are also horror stories. We all know this to be true – you can't trust everything you read on the internet.
There are two things to consider when using any document – form or otherwise. First, does this document comply with the law? Second, does this document restrict my ability to manage my company?
As to the first question, you cannot assume that a document is lawful just because you paid for it. In Oklahoma, one of the most common problems we see with generic forms is in the area of non-competes. If you have read our ELR very long, you know that Oklahoma does not favor non-competes. There are very limited circumstances under which an employer can restrict a former employee's right to work. Most "form" documents will use a general non-compete which may be enforceable in many states, but useless in Oklahoma. So, you paid for the form, you got the employee to sign it (maybe even paid consideration), but have nothing to show for it.
The second question is probably the bigger problem. Employers have many (many) legally required restrictions. Therefore, it seems as if you would want to protect the remaining rights you have to manage your workforce. Yet, many of these forms give up those rights. For example, Oklahoma is an at-will state. In other words, other than reasons protected by law, you are free to discharge an employee without reason or notice. However, if you buy an employment contract off the internet, it may very well have language like "just cause" in it. That is a significant restriction Oklahoma law does not place on your ability to discharge the employee. If you use that employment contract, you've basically given the employee an extra way to sue you.
Bottom line. Like everything you buy online, check it out carefully. Do not assume the product will work for your company or in all locations simply because it is being offered, even by a reputable site. We all wish it were simple. Unfortunately, it just isn't.
If you do buy or use generic forms, take care to read them and satisfy yourself that (i) they are lawful and (ii) they do not restrict your ability to manage the workforce in ways that you do not intend.
By Kristen L. Brightmire, firstname.lastname@example.org