Human Resources
By Lena Bodin

Q: We are a small business with only a few employees, but our newest hire is asking for a detailed “hire letter.” Is this a good idea?

A: Many companies provide hire letters to a prospective employee outlining terms and conditions of what was agreed to verbally, such as salary, and anything else that might have been granted, such as sign-on bonus and its terms, relocation benefits, etc.

However, one of the pitfalls to avoid is making a contractual agreement by inserting an “at will” clause, which stipulates that employment is terminable at any time without cause. Otherwise, the letter may be construed as a contractual agreement.

Another consideration is why exactly the prospective employee is looking for the hire letter. Truth be told, sometimes candidates will obtain an offer letter to use as a bargaining chip with their present employer or other prospective employers.

Q: I’d like to warn against Internet access for personal use in our employee handbook but have been told this is potentially dangerous. Why?  

A: Use of company Internet should be strictly for company use. It is actually a good idea to include a policy stating that in an employee handbook and also consequences for misuse. With global access, it is important to have such a policy since an employer may also be held liable for an employee’s illegal activities on the Internet through the company’s Internet access.

Q: I suspect that one of my employees is spending a great deal of time on personal emails at the office. Can I check mail files for personal letters without violating any privacy laws?

A: Technically, a company can monitor an employee’s company email log since it is company property. However, reading each email becomes another issue and controversial. Monitoring personal email accounts that an employee accesses through the company Internet is another matter and very difficult to monitor. Best thing to do here would be to have an Internet usage policy in place to address abuse of the Internet on company time.

Lena Bodin, MBA, SPHR, is the President of People Resource Strategies, a HR management consulting located in Rockland County. Lena can be reached at 845-362-3445. Her website is located at www.4prs.com.

---

Legal Matters
By John Chakan

A: Leaving a share of your business to a child who has no interest in it can be an invitation to disaster. The child who is an active owner may find his business future at the mercy of your children who are passive owners. Although it is possible to restrict any gift or legacy so that the active owner will control the business, doing so may result in the passive owners having only limited financial benefit from their inheritance. One alternative would be to purchase life insurance (through an irrevocable life insurance trust), to give your non-participating children a substitute for their shares of the business. Another alternative would be to plan for your child who participates in the business to buy out the shares of your other children, perhaps with the buy-out to be funded by insurance. These and other alternatives should be considered in light of your particular situation.

Q: My wife has no interest in my business. Do I have to make her an owner, giving her the right to participate in the operation of my business, in order to take advantage of the estate tax marital deduction and her estate tax exemption?

A: No, at least not directly. It is possible to use a trust to receive or hold an interest in your business for your wife’s benefit. In that case, the Trustee would be an owner, having the right to participate in your business, but if the trust’s share of the business were not income producing, your wife would have the right to compel the Trustee to make it income productive or sell it.

John Chakan, of Kantrowitz, Goldhamer, and Graifman, specializes in wills, trusts and estates, estate planning, tax, elder Law and related matters, especially in techniques for estate tax minimization. Find out more about John at the firm's web site. In the last issue of RBD, we listed the incorrect website for Kantrowitz, Goldhamer and Graifman. The correct website can be located at www.KGGlaw.com.

---

Workplace Hotline
By Robert Heiferman

Q: One of our older warehouse employees is slowing down and complaining about the heavy lifting. He wants us to have the younger people do the heavy lifting. Do we have to accommodate him?

A: No. Age can affect us all, but is not a disability under either federal or state law. You can, therefore, require older employees to perform the same tasks as productively as their younger coworkers.

Q: We need to layoff some of our employees during the slow season. Is there any requirement that we do it by seniority or can we pick and choose in order to keep our best people? Also, do we have to provide any severance pay for employees laid off?

A: No law dictates the manner in which layoffs must be conducted. Nor is severance pay required. However, layoffs cannot be based upon sex, age or any other protected classification. Thus, while relative qualifications and merit can be the basis for layoffs, it is important to have objective criteria to support the selection process in the event a person laid off alleges that they were unlawfully selected.

Q: One of our former employees is demanding a copy of her entire personnel file. Do we have to provide it? Can we charge her for the copies?

A: Under New York law, private sector employers have no obligation to provide employees or former employees copies of their files regardless of who pays for it. However, many employers allow current employees to review their files. Employees usually are made aware of items when they are placed in their files in order to prevent a recurrence.

Q: One of our former salespeople has not returned company property, including a sales kit with samples. Can we hold his final commission checks until he returns our property?

A: No. Commissions are considered “wages” under New York law and must be completely paid when due. However, an employer may pursue civil or criminal charges against the salesperson who has refused to return company property.

Robert Heiferman is a partner in the law firm of Jackson Lewis LLP in White Plains, the nation's largest law firm representing management exclusively in workplace law and related litigation.

---

Information Technology
By Denis Williamson

Q: We have 8 old computers in the office. Should I replace them all now or over time? And should I buy or lease?

A: Good question! There are advantages to replacing everything at once: everyone is using the same version of Windows and similar equipment, and compatibility problems are minimized. But the expense and disruption will be greater. And once you’ve replaced everything, it’s hard to switch to a year-by-year replacement strategy. If all the equipment is 5 or more years old, I recommend taking a deep breath and replacing everything. If some systems are 3 years or less, I would replace the oldest ones now and the rest in a year.

Q: Should I buy now or wait for Microsoft’s new operating system?

A: Since there will always be something newer 6 months down the road, buy it when you need it. The cost and frustration of struggling with balky or slow equipment outweigh the benefits of waiting.

Q: I know a new computer will be obsolete by the time I open the box, but how long should I plan to keep a computer for my business?

A: Unless you need the latest and greatest because you’re using a demanding application like graphic or engineering design, for most business uses we recommend a four-year life cycle. Select a mid-range business model and you’ll get the best value.

Q: Didn’t Office use to come with Windows? Why do I have to buy it now?

A: Office was never part of Windows, but when computers cost $2000 computer makers often included it. With computers starting at $399, they can’t. If you don’t need all the features of Office, or you’re a school or non-profit on a tight budget, you might find Open Office (free at openoffice.org) a good alternative.

Denis Williamson is with MacLamor Computer Consulting, which provides computer system and network design, installation, training and support for small businesses. Denis can be reached at 845-357-1877 or denis@maclamor.com.