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Employment Law

Need to discipline employee? Prepare to back it up with contemporaneous records

02/21/2011
Courts love to see good records that support employer discipline—records created at or very near the time events occurred. That’s why every manager needs to know how to document discipline and who gets a copy for later use.

Discipline worker who complained of bias–if warranted and consistent with past practice

02/21/2011

Employees who claim some form of discrimination are protected from retaliation. But that doesn’t mean employers can’t discipline employees who have complained. The key is to make sure any discipline is based on legitimate concerns and doesn’t go beyond that which other employees who didn’t complain would receive.

Disturbing trend: Workers as their own lawyers

02/21/2011

If your former employees decide to sue, they’ll find themselves competing for lawyers to represent them. Increasingly, former employees are filing their own lawsuits. And judges give such pro se plaintiffs every possible break since they aren’t expected to know the tricks of the legal trade.

Have a progressive discipline system? Use it every time

02/18/2011
Employers that bend their disciplinary rules after an employee files a discrimination or harassment complaint almost guarantee they will face a jury if the employee sues. Courts often see such deviations as evidence of retaliation.

Setting sound policies, following processes to a ‘T’ increase odds of winning in court

02/18/2011

Employers that follow their own disciplinary process—even in cases involving difficult employees—benefit if those employees sue. When courts see a reasonable disciplinary policy that is applied evenhandedly, they rarely second-guess an employer’s decision to fire an employee.

Disneyland goes out of way to accommodate Muslim dress

02/18/2011

It took a complaint to the EEOC, but Disneyland will allow a Muslim woman employed as an intern there to wear an Islamic head scarf. Disney worked with CAIR to come up with a clothing option that met the woman’s religious requirements and still satisfied the Walt Disney Company’s uniform guidelines.

Can workers use FMLA and sick leave back-to-back?

02/16/2011
Q. One of our employees thinks she will need about five months off for medical treatment. She wants to use her accumulated vacation and sick time and then go on FMLA leave. Do I have to allow this?

Make it easy for courts to see your side–investigate thoroughly before disciplining

02/15/2011
Courts don’t expect employers to set up the equivalent of a judicial system for disciplining employees. They just want to see a reasonable effort to ferret out the truth.

Make your arbitration agreements stick: Consult lawyer, communicate with employees

02/15/2011

If you’re considering so-called alternative dispute resolution, be sure to have an experienced attorney draw up the arbitration agreement. It should clearly state that all employment disputes will be handled by arbitration. Your role in HR is to take all necessary steps to ensure employees understand that agreeing to arbitration is a condition of employment.

Make training for managers an essential part of your sexual harassment policy

02/15/2011
It does no good to have a sexual har­assment policy if managers don’t know how to enforce it. Without regular manager training on how to respond to complaints, you might as well not have a policy.