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Employment Law

ADA: ‘Toxic’ work site (plus toxic boss) doesn’t necessarily create disability

08/02/2010

It happens. Some working relationships between bosses and their direct reports are so toxic that employees suffer psychological problems. Sometimes the tension is so bad that employees believe they’re disabled and therefore entitled to transfer to another job under another supervisor. That isn’t the case.

Base hiring decisions on listed qualifications

08/02/2010

Make sure your job announcements list all relevant experience and educational requirements. Why? Courts deciding whether to send a failure-to-hire case to trial won’t consider any qualifications you didn’t list in the job announcement. Here’s how that could play out:

Is worker fit for duty? Limit medical inquiries to essential functions

08/02/2010

You aren’t allowed to delve into an employee’s medical history or disabilities when the employee wants to keep the information private—unless you can show a clear job-related reason for doing so. To qualify as job-related, your inquiry must be narrowly tailored to assess whether the employee is capable of performing the essential functions of the job. Broad questions often run afoul of the law.

Kucinich & Fudge ask for DFAS investigation

07/30/2010
U.S. Reps. Dennis Kucinich and Marcia Fudge, members of Congress from Ohio, have asked the Acting Comptroller of the United States and the Inspector General of the Department of Defense to investigate allegations of racial discrimination at the Cleveland facility of the Defense Finance and Accounting Service (DFAS).

Recalcitrant worker? Document and fire

07/30/2010

Some employees can’t or won’t acknowledge that they aren’t meeting their employer’s expectations. They ignore negative evaluations, don’t follow through on improvement plans and won’t take direction. You may have no choice but to fire the employee. If you do, don’t worry. Careful documentation will stifle any later lawsuit alleging some form of discrimination.

Transfer worker who needs a fresh start; it’s not retaliation if pay, benefits are equal

07/30/2010

Sometimes, an employee simply isn’t a good fit for a particular job assignment. But if you transfer such employees with a genuine intent to give the person a fresh start—and not a hidden motive of discrimination—you’ll likely survive a legal challenge. Just make sure the new job has similar responsibilities, pay, benefits and working conditions.

FMLA now covers care by same-sex parents

07/29/2010
The U.S. Department of Labor has issued a broad interpretation of the definition of a “son or daughter,” clarifying that any employee who assumes the role of caring for a child will receive parental rights under the FMLA, regardless of the biological relationship. The new rule applies regardless of sexual orientation or conventional family ties.

Before you decide to fire, make sure past evaluations support your rationale

07/28/2010

Nothing raises suspicions among employees (and juries) than effusive praise followed by a pink slip. So here’s a tip that will make courts more likely to uphold your termination decisions: Make sure whatever reason you use to justify a firing also shows up in past performance evaluations.

Between honesty and discretion, what’s the best approach to reference requests?

07/27/2010
Q. I have a question about providing honest feedback during reference requests. Is it better to defend the fact that I provided a truthful (negative) assessment, rather than trying to explain why I can’t give any reference at all? Aren’t we protected by negligent-referral and reference-immunity laws?

Can we terminate a poor performer who is currently out on FMLA leave?

07/27/2010
Q. Our receptionist has a history of being late for work and taking unexcused absences. She’s out on FMLA leave to care for her sick father. Her temporary replacement is doing an outstanding job and always shows up on time. Can we keep the new receptionist and tell the other one not to return?