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Employment Law

What keeps HR awake at night?

02/22/2011
Rising health care costs, implementing the new health care reforms, rapidly changing business and labor markets, growing regulatory complexity and managing the aging workforce top the list of challenges HR pros face. That’s what the Society for Human Resource Management found when it surveyed more than 9,000 practitioners.

Make the independent contractor vs. employee decision before you bring person on board

02/22/2011
Make sure you make the employee-or-contractor call before you hire an employee. Don’t assume you can make the designation later. That usually won’t work. And you probably won’t even discover the problem until it’s too late to fix it—when a terminated worker files an overtime lawsuit.

Any stereotypes of workers–even positive ones–can spark discrimination lawsuits

02/22/2011
Typically, employees who file discrimination lawsuits try to show they were treated poorly because of preconceived notions about their protected category (age, religion, sex, disability status, etc.). But be aware of this twist: Stereotypes that seem positive at first blush can also be the basis for discrimination claims.

If employee won’t admit disability, what are our reasonable accommodation obligations?

02/21/2011
Q. One of our employees is experiencing performance-related problems, which I believe are attributable to a mental disability. However, the worker has not notified anyone here that he suffers from an impairment that substantially limits a major life activity. He hasn’t asked for any accommodations either. Should we nonetheless offer to reasonably accommodate this employee?

After NLRB ruling, can employees really trash you on Facebook?

02/21/2011
Don’t read too much into the recent foray by the NLRB into the brave new world of social media. Employees don’t receive a free pass on social media posts. They don’t have license to defame, disparage or otherwise trash their company, management, product or co-workers. Until the NLRB says otherwise, employers shouldn’t treat social media any differently than any other form of employee communications.

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.