Employee Communications: Idaho
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Scott E. Randolph and Bradley T. Cave of Holland & Hart LLP
- Idaho requires several employer postings regarding wages, smoking, safety and workers' compensation. See Required Postings.
- Employers are advised to communicate in writing with employees about the at-will status of employment, disclaimers of any intent to create implied contracts, and are required to provide written notices about the usual time of wage payments and any drug or alcohol testing. See Communication of At-Will or Other Terms of Employment.
- Restrictive covenants are enforceable in Idaho, subject to several limitations. See Covenants Not to Compete.
- Various statutes and legal doctrines may apply to employer communications, including laws prohibiting discrimination, claims for defamation, invasion of privacy, and various statutes which protect employees' rights to file complaints and participate in legal proceedings. See Legal Claims Relating to Communications.
- Discriminatory comments could support an allegation under Idaho's antidiscrimination statutes. See Statutes Relating to Discriminatory Comments.
- Idaho's criminal wiretapping statute precludes employers from making audio recordings or otherwise intercepting or monitoring employees' oral or electronic communications without consent. See Privacy in Communications.
- Idaho has adopted the Uniform Trade Secrets Act with some minor modifications. See Trade Secrets, Business Information and Proprietary Information.
- Generally, employment in Idaho is at-will but the public policy exception to at-will employment has been held to protect employees who refuse to commit unlawful acts, who perform important public obligations, or who exercise certain legal rights or privileges. See Statutes Protecting Employee Communications.
Idaho employers are required to post the following notices in the workplace:
- Public employers are required to post warnings in areas where employees are exposed to hazards. Idaho Admin. Code § 17.10.01.003;
- Every employer is required to post a summary of the Idaho minimum wage law furnished by the Idaho Department of Labor. +Idaho Code § 44-1507. Also, employers are required to give written notice upon request of the wage rate, usual date of payment and any anticipated reduction in pay prior to the work being performed. +Idaho Code Ann. § 45-610;
- Employers must make a reasonable effort to ensure compliance with the Idaho Clean Indoor Air Act by posting no smoking signs, and signs in breakrooms where smoking is permitted. +Idaho Code Ann. § 39-5503;
- Employers are required to post notice of its compliance with requirements for obtaining workers' compensation insurance coverage which provides employees with the name and address of the insurance company. +Idaho Code Ann. § 72-312;
- Mining employers and those engaged in the construction of tunnels, canals, ditches, railroad or aqueducts must post the time and place of payment of wages, the name and address of the employer, the status under which the employer is performing the work, and an accounting of the employer's mortgages and loans. +Idaho Code Ann. § 44-501; and
- Employee leasing companies must post a notice regarding its relationship with a client company. +Idaho Code Ann. § 44-2405.
A poster packet, including federal posting requirements in addition to Idaho state posters addressing minimum wage, antidiscrimination and unemployment insurance laws, is available from the Idaho Department of Labor's website.
Communication of At-Will or Other Terms of Employment
Employers who desire to create and maintain an at-will relationship with their employees should clearly communicate that relationship, and disclaim the intent to create any implied contract rights. Unless an employee handbook specifically disclaims any intention on the part of the employer to have it become a part of the employment contract, an Idaho court may conclude from a review of the employee handbook that a question of fact is created regarding whether the handbook was intended by the parties to impliedly express a term of the employment agreement. See Metcalf v. Intermountain Gas Co., +116 Idaho 622 (1989).
The Idaho Supreme Court has held that the following handbook provision adequately disclaims the existence of a contract:
None of the benefits or policies in this handbook are intended by reason of their publication to confer any rights or privileges or entitled the employee to be or remain an employee of the Employer. The contents of this handbook are presented as a matter of information only. While Employer believes wholeheartedly in the plans, policies, and procedures described herein, they are not conditions of employment and are subject to unilateral change by Employer. While we hope that your employment will be long lasting, employees are, of course, free to resign at any time just as Employer is free to terminate employment at any time.
Sorensen v. Comm Tek, Inc., +799 P.2d 70, 73-74 (Idaho 1990).
Language in an employee handbook providing that the policies and procedures expressed in the handbook or any other employer materials, which may be used from time to time, do not create a binding employment contract or any other agreement between the employee and the employer also has been found to be a sufficient defense to an implied contract claim. See Hurst v. IHC Health Servs., +817 F. Supp. 2d 1202 (D. Idaho 2011).
Because of the complexities and consequences involved in drafting effective disclaimer provisions, employers are encouraged to seek the advice of knowledgeable and experienced local counsel.
If requested, Idaho employers are required to provide employees with written notice of the rate of pay and the usual day of payment, and to give written notice upon request of the date of any reduction in wages. +Idaho Code Ann. § 45-610.
Drug Testing Policy
Under the Idaho Private Employer Alcohol Drug Free Workplace Act, private employers are permitted to condition hiring or continued employment on drug or alcohol tests conducted by the employer or a third party. However, an employer must have a written policy which describes the types of tests to which an employee may be subject, and include a statement that testing positive may result in discipline or termination due to misconduct. +Idaho Code Ann. § 72-1701 et. seq. (§§ 72-1701 to 72-1717).
Covenants Not To Compete
Covenants not to compete are enforceable in Idaho, subject to several limitations. +Idaho Code Ann. § 44-2701, et. seq. (§§ 44-2701 to 44-2704).
An employer may impose a noncompete agreement on key employees and independent contractors, provided the agreement is calculated to protect the employer's legitimate business interests. The Idaho statute includes a presumption (an assumption that can be disproved by proof) that those individuals compensated within the top five percent are key employees. To rebut such presumption, an employee must show that he or she has no ability to adversely affect the employer's legitimate business interests. The rebuttable presumption of irreparable harm for departures of key employees has been eliminated. As a result, employers have the burden to show that their business interests were harmed by the employee's competitive actions. +2018 Bill Text ID S.B. 1287; Terms of Employment: Idaho.
Under the statute, agreements are presumed to be reasonable if they:
- Include a time limit of less than 18 months; and
- Are limited to the geographic areas where the key employee or key independent contractor provided services or had significant influence.
Legal Claims Relating to Communications
Common Law Claims
Depending on the facts of a particular dispute, employees can bring other common law, or nonstatutory law, claims against employers in Idaho based on employer communications, such as:
- Invasion of privacy; or
- Intentional infliction of emotional distress.
These tort, or wrongful act, claims typically arise from strongly disputed discipline or termination, and involve allegations that the employer has:
- Wrongfully published false statements of fact about an employee (such as to other employees or prospective employers);
- Unjustifiably trespassed on a protected privacy interest (such as the employee's personal life unrelated to work); or
- Engaged in some allegedly outrageous conduct intended to inflict severe emotional distress.
The elements and defenses for these claims are intricate and complex. All of them can lead to tort damages, including punitive damages, in addition to contract damages such as lost wages and benefits. Employers are well-advised to consult counsel whenever such claims may potentially arise from employment disputes.
Regarding job references, an employer who provides information regarding a current or former employee's job performance, professional conduct, or evaluation, in good faith to a prospective employer at the request of either the employee or the prospective employer, will not be liable for the disclosure or the consequences of such evaluation. +Idaho Code Ann. § 44-201(2).
However, an employer may not, for disciplinary or other purposes, maintain a blacklist of individuals or notify any other employer that a former employee has been blacklisted for the purpose of preventing the employee from receiving employment. +Idaho Code Ann. § 44-201(1).
Statutes Relating to Discriminatory Comments
Discriminatory comments could support an allegation under Idaho's antidiscrimination statutes. Idaho has implemented antidiscrimination statutes that provide employment protection which is in addition to federal law.
Idaho has made it a civil right to obtain and hold employment free from discrimination by all employers based on race, creed, color, sex or national origin. +Idaho Code Ann. § 18-7301.
The Idaho Human Rights Act applies to employers with five or more employees. It defines discrimination as refusing to hire, discharging or otherwise discriminating in the terms or conditions of employment on the basis of age, race, color, religion, sex, disability or national origin. +Idaho Code Ann. § 67-5909.
Privacy in Communications
Idaho's criminal wiretapping statute precludes employers from making audio recordings or otherwise intercepting or monitoring employees' oral or electronic communications without consent. +Idaho Code Ann. § 18-6701; +Idaho Code Ann. § 18-6702.
Employees may sue for violations of this statute, and recover the following remedies:
- Actual damages, but not less than liquidated damages of $100 for each day of violation or $1,000, whichever is higher;
- Punitive damages; and
- Attorney fees.
Trade Secrets, Business Information and Proprietary Information
Idaho has adopted the Uniform Trade Secrets Act with some minor modifications. +Idaho Code Ann. § 48-801 et. seq. (§§ 48-801 to 48-807).
Under the Act, if an employee or ex-employee acquires or discloses a trade secret improperly, discipline or discharge can be imposed. Generally, employers can apply to a court for an injunction against such misappropriation. If successful, an employee may be liable for the following:
- Actual damages;
- Punitive damages; and
- Attorney fees.
A written policy and nondisclosure agreement clearly outlining the nature of the employer's trade secrets and requiring confidentiality is good practice, in order to clarify an employee's duties and responsibilities, as well as the applicable penalties for any breach.
Employers may also pursue common law claims for conversion against an employee, depending on the particular theft. Criminal sanctions are also available for theft of property.
Statutes Protecting Employee Communications
Generally, employment in Idaho is at-will. However, the public policy exception to at-will employment has been held to protect employees who:
- Refuse to commit unlawful acts;
- Perform important public obligations; or
- Exercise certain legal rights or privileges.
Public policy of the state is found in the constitution and statutes. Edmondson v. Shearer Lumber Prods., +139 Idaho 172 (2003).
For example, employers can be liable despite the at-will employment doctrine if termination is illegally based on protected employee conduct such as:
- Participation in union activities;
- Reporting safety violations;
- Reporting false medical records and the performance of unnecessary operations;
- Refusing to date a supervisor;
- Filing a workers' compensation claim; or
- Serving on a jury.
See Paolini v. Albertson's Inc., +418 F.3d 1023 (9th Cir. 2005) (Idaho) (citations omitted).
Similarly, at-will employees are protected:
- Under the Idaho Human Rights Act which prohibits employers, employment agencies or labor organizations from retaliating against individuals opposing or complaining about discrimination or cooperating in investigations or proceedings under the Act;
- Under the wage payment statutes, which make it unlawful to discharge or retaliate against employees claiming wages or participating in related proceedings;
- Under the Idaho Protection of Public Employees Act, which makes it unlawful to retaliate against public employees who, in good faith, report waste of public funds, property or manpower, or cooperate in an investigation or other proceeding, or refuse to comply with a directive that an employee reasonably believes violates the law; and
- Under the Idaho Clean Air Act, which makes it unlawful to retaliate against employees who complain about smoking violations of the Act.
Also, employees who participate in an employee assistance program (EAP) are not required to waive the confidential or privileged nature of their communications with any licensed professional providing services as part of the program, unless the employer has referred the employee to the provider as a condition of continued employment. +Idaho Code Ann. § 44-202.
EAP service providers are prohibited from disclosing privileged communications from an employee, and employers cannot incur liability on the basis of information shared by an employee to a provider unless the employer actually knew or should have known that information before any breach of duty occurred. +Idaho Code Ann. § 44-202.
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