Your Legal "To Do" List - By Rita Risser, attorney at law
Looking back over the past year, we've seen a few trends in employment law. What action steps can you take now to prevent costly lawsuits?
Mandate (good) training for all your reports
The courts are clear: employers who fail to train employees are negligent and can be sued for harassment. But the courts don't uphold just any training - it has to be good and effective training.
In one case, the U.S. government ordered a company to stop computer-based training (CBT) because it didn't give real-life skills. The board found that CBT effectively provided factual information, but did not give employees an understanding of processes or the ability to ask questions about abnormal situations. What was lacking was "training that goes beyond fact memorization and answers the question 'Why?'"
The board told the company to replace computer tutorials with "face-to-face training conducted by personnel with process-specific knowledge and experience who can assess trainee competency."
Of course, when you do live training, make sure it is supported by everyone in the company from the top down. One company lost a case in 2007, in part because the Chairman walked into a harassment prevention training and made an inappropriate "joke."
Follow proper procedure in harassment claims
One good trend for employers - the courts will protect you from suit if you have a proper procedure and follow it. In one 2007 case, a federal Court of Appeals ruled against a victim of harassment who was fired for refusing to work with the accused harasser. The court found the company promptly and fairly investigated her claim, properly warned the accused, and offered the victim reasonable options which she refused.
In contrast, if you don't follow procedure, you lose. In another 2007 case, the harasser properly was given a final written warning, and then after harassing again, given a second written warning instead of being terminated. When he harassed a third time, the victim quit and sued. The court said because he was not terminated the company emboldened him to continue harassing. The victim was allowed to take her case to jury trial.
What you should do: If you are in a position to require people to attend training, make it one of their objectives for the coming year. All employees need harassment prevention and all managers should take Managing within the Law to learn about following proper procedure. Remember that cheaper and easier training is not better. Not only will it make you look bad when you get sued, it makes you more likely to get sued in the first place, because people don't learn in cheap and easy training.
Training - good training - is the only way to prevent mistakes and stop costly lawsuits.
Check out our engaging, interactive, and plain-spoken training programs here.
Big Money
A claim that Knicks coach Isiah Thomas sexually harassed and wrongfully terminated Anuch Sanders has been settled for $11.5 million. In October, 2007 a federal jury in New York had awarded Ms. Sanders $11.6 million in punitive damages, plus compensatory damages and legal fees. The settlement avoids an appeal of the jury verdict.
A San Diego Children's Hospital agreed to pay $2.7 million to 150 former employees denied meal breaks.
Lowell (MA) High School settled a gender bias suit for over $1 million.
3000 home health care workers are to receive $2.2 million for unpaid time traveling between clients and working more than 40 hours in a week.
Fair Measures reports only settlements and final judgments - never jury verdicts.
How much does training cost? A lot less than a lawsuit! Call us at 800-458-2778 now.
Ask the Lawyers #1
Our company has facilities in many states - what laws should we follow?
If a hotel management company has properties all over the United States are they expected to have the same policies in effect at each location or can they go by the state law which presides? (for lunch breaks, OT regulations etc..)
Thank you.
Rita Risser and Ann Kiernan reply:
Federal law provides the minimum standards for all locations, but if the state law for a particular site provides more for employees, the company must follow the law which is most beneficial to the employees. You can have the same polices for all locations as long as the policies follow the most generous state law on the subject.
Every state requires employers to prevent discrimination and harassment. Find out how we can help you do that through our program, Managing Within the Law.
Ask the Lawyers #2
Manager is out sick a lot - can we fire him?
Our workshop manager is increasingly taking time off when he is sick. We suspect a chronic illness, but do not have any official notification. My boss wants me to find out how to deal with this situation legally. A manager's presence is necessary for the shop to run properly and our products to get done. We feel his illness is impacting his job performance and our business is suffering because of it. We don't know if we can let him go and replace him or if we need to work with him through whatever is going on.
Rita Risser replies:
The Americans with Disabilities Act (ADA) requires that employers enter into an interactive process with disabled employees. In other words, talk to him. I would say something like this: "We notice you are taking sick time, and we are concerned about your health. We don't want to invade your privacy but if you have a chronic or disabling condition, you do have rights under the Americans with Disabilities Act or the Family Medical Leave Act. And of course you are entitled to use all your accrued sick leave. We also have the right to have someone here to do the work. What can we do to resolve this situation?" Then begin your discussion.
Ultimately, once he exceeds his FMLA and sick leave, even if he is disabled he can be terminated (or released on disability) if he can't perform the essential functions of the job, one of which is to be there. However, it is best if you work closely with a local attorney if you decide to go this route.
Good luck.
Learn how to comply with ADA, FMLA and more in our program, Managing Within the Law Part II.
Ask the Lawyers #3
Spanish speaking employees are making negative comments - can we make them speak English?
Inside of our company, there is a handful of employees, all men, who are bi-lingual. They speak English fairly well and are fluent in Spanish. When they get together they all immediately speak Spanish leaving everyone else in the room in the dark with regard to their discussion. However; many of us know a little Spanish here and there and can fairly guess that they are making negative comments, or just plain talking about non work related topics. Can we enforce an English-only work place?? Your advice on this topic will be appreciated.
Rita Risser replies:
Wow - people who speak only English at your workplace never make negative comments and never talk about non-work related topics??? Although there are a few limited circumstances when employers can enforce English-only in the workplace, the general rule is that people should ignore the conversations of others, and if any reprimands are to be made for making negative comments or non-work-related conversation, everyone must be reprimanded, no matter what language they speak.
How do you prevent misunderstandings like this? Our Respectful Workplace program facilitates good relationships at work.
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