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Posts Tagged ‘Sexual harassment’

Termination Time

23 Apr

No matter what, the time will come where you need to terminate an employee. The reason is generally immaterial, unless it is illegal or discriminatory, whether it is performance-related or simply a bad cultural fit, not every employee you hire will work out. The most important, and most often asked, question is: what do I need to do to fire this person?

Documentation is very important, and should begin when an employee is hired. Every employee should have a personnel file, and in that file you should document any warnings, discipline or efforts to improve employee performance. While many states have at will employment, it is still beneficial to have documentation of the reasons for the termination, preferably in advance. However, if your recordkeeping is lax, you should create a document outlining all of the incidents, problems and issues with the employee in as much detail as you can recall prior to termination.

Reviewing the employee’s personnel file prior to termination can also reveal some important details. For example, if the employee has filed sexual harassment complaints, filed a claim with OSHA or informed you of impending FMLA leave, you could face a claim for retaliation. Without a clear history of misconduct, your chances of prevailing in a retaliation lawsuit are much less likely.

As I have previously discussed, it is very helpful to have an employee handbook that clearly sets forth your policies. Particularly when the terminated employee is a member of a protected class, you are much more likely to prevail in a wrongful termination suit if you can show clearly written policies that the employee violated, rather than an informal set of unwritten rules.

You should always be truthful with the terminated employee regarding the reasons for termination, but avoid going into more detail than required. While providing a false reason for termination may seem to spare the terminated employee’s feelings, it can create significant issues if he or she files a lawsuit. A false reason for termination will likely be found out, and then your credibility will take an irreversible hit in the eyes of the jury.

Lastly, before informing the employee of the termination, you should have a plan in place regarding the employee’s access to the company computer system and other sensitive information. It is advisable to inform the IT department to revoke the employee’s access to the company computer system once the termination meeting is underway. Preventing access will prevent both the infamous angry departure email to the whole company and ensure that sensitive data is not transferred without your knowledge. Whether or not you realize it, your business may have trade secrets that a terminated employee could use against you. During the meeting you should also request the employee return any company equipment, keys, keycards and any other company property.

Each and every termination is unique, and retaining legal counsel to provide advice regarding terminations will help avoid many pitfalls, particularly with members of protected classes. Legal counsel can also help draft a termination letter, if you wish to utilize one, and a separation agreement, which can provide the employee financial support for a period of time after termination in return for releasing you from any liability.

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Posted in Employee Handbook, Employer Policies, Employer-employee relations

 

To Handbook or Not to Handbook

17 Apr

Terrible Shakespeare paraphrasing aside, the question of whether or not an employee handbook is necessary has been discussed, sometimes heatedly, on a number of occasions. It is easy to see why the employee handbook is ostracized, many are long, boring, heavy and complicated, to the point where an employee needs to hire his or her own legal counsel to parse through the legalese. This assumes, of course, that the employee is even reading the handbook.

I count myself as a proponent of employee handbooks, and not because I write them. If you have read any of my other blog posts, you will notice that I am a firm advocate of clear communication with employees.

Many employee handbooks forget the main purpose of a handbook, to communicate the policies to the employee. For example, your vacation policy should only require a few sentences: how many days they get, the way vacation is accrued, and the policy for requesting vacation.

The contents of an employee handbook will always differ from business to business. Most employers want policies regarding time off, discrimination, and harassment. Your business may want or need to have a dress code, or a computer/social media policy; and the bulk of a handbook’s content should be specifically tailored to your business. However, one rule should govern handbook drafting: keep it as simple as you can. And I would be happy to discuss your particular handbook at any time.

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Posted in Employee Handbook, Employer Policies, Hiring and Recruitment

 

Anatomy of an EEOC Charge

11 Apr

When an employee believes he or she has been discriminated against at work because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information under a number of federal laws, they can file a Charge of Discrimination with the Equal Employment Opportunity Commission. All of the laws enforced by the EEOC, except the Equal Pay Act, require an employee to file a charge before filing a job discrimination lawsuit.

The employee must bring the charge within 180 days from the day the discrimination took place, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. With allegations of age discrimination, the filing deadline only extends to 300 days if there is a state agency enforcing the law. The filing deadline applies to each incident of alleged discrimination, unless continuing harassment is alleged, in which case the employee must file within 180 or 300 days of the last incident of harassment.

Once the employee files the charge with the EEOC, you will receive a notice and copy of the charge within 10 days. At this point, it is advisable to retain legal counsel to represent you. Make sure that you, and any other employees, do not take any adverse action against the employee filing the charge, as retaliation can lead to additional liability. The EEOC will encourage you and the employee to attend a mediation session, where a mediator will try to help you reach a voluntary statement.

If mediation is not used or is unsuccessful, then the EEOC will investigate the employee’s allegations. The length of the investigation depends on the allegations and the amount of information needed. Depending on the charge, the EEOC may visit you in order to interview employees and gather documents. If you refuse to cooperate (which is not recommended), the EEOC can obtain a subpoena to require you to provide access to company property, obtain documents and compel testimony.

After the investigation is completed, if the EEOC finds a violation, it will attempt to reach a voluntary settlement with you. In the event that the settlement negotiations are unsuccessful, the agency will refer the case to its legal staff to file a lawsuit. The EEOC has limited resources, and only tends to file lawsuits in very serious cases. If the EEOC’s legal staff decides not to file a lawsuit or if the EEOC does not found a violation, it will send the employee a Notice-of-Right-to-Sue, which gives permission to file a lawsuit on their own. Once the employee receives a Notice-of-Right-to-Sue, they will have 90 days to file a lawsuit, which will begin the normal civil litigation process.

Where a violation is found, the employee may be entitled to reinstatement, promotion or back pay, and you will be required to remedy the discriminatory practices and take steps to prevent discrimination in the future. Employees are also eligible to recover attorney’s fees, expert witness fees and court costs. However, there are limits on the compensatory and punitive damages that an employee may recover depending on the size of your business:

  • 15-100 employees = $50,000
  • 101-200 employees = $100,000
  • 201-500 employees = $200,000
  • More than 500 employees = $300,000

And for intentional age discrimination or intentional sex-based wage discrimination, while compensatory and punitive damages are not available, the employee may be entitled to liquidated damages equal to the amount of back pay awarded.

The most important thing to remember is to seek legal counsel as soon as you receive the EEOC Charge. You may be able to have the charge dismissed quickly with an attorney’s assistance, which can discourage an employee (and more importantly the employee’s potential attorney) from filing a lawsuit in court.

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Posted in Anatomy Lessons, Department of Labor, Employer-employee relations

 

Bringing the Playground to Work

27 Feb

Researchers have determined that workplace bullying may be more harmful to employees, and consequently employers, than sexual harassment. The hidden costs resulting from workplace bullying can be nothing less than staggering.

Workplace bullying is defined as repeated, unreasonable actions of individuals (or a group) directed towards an employee (or group of employees), which are intended to intimidate, degrade, humiliate, or undermine, or which create a risk to the health or safety of the employee.  Bullying can take many forms and may include invalid criticism, being treated differently than the rest of a work group, being sworn at, exclusion or social isolation, or even excessive monitoring or micro-managing.

While bullying can, at times, be difficult to recognize, there are a few indications.  Many organizations where bullying is prevalent show an increase in grievances, sick leave and disciplinary actions. A 2011 Careerbuilder survey reported that while 27% of workers have experienced workplace bullying, the vast majority did not report the abuse. Unfortunately, of the workers who reported the bullying, 62% responded that no action was taken by their employer to investigate or resolve the problem.

Bullying can have a profound effect on the victim or victims. They may experience extreme stress, reduced self-esteem, sleep disorders and depression in the short-term and long-term problems include chronic disease, including cardiovascular disease. Bullied employees tend to be less effective, in part because they are forced to expend time and energy coping with the bullying, and because they are more likely to utilize sick leave.

Bullying can have other financial effects on an employer as well.  Increased turnover, from bullied employees quitting, means an employer must pay to post a job opening, take time to review applications and interview applicants, and then take the time to bring new employees up to speed. Every time a bullied employee quits, the employer must expend time and money to replace them.  And, of course, the bullied employee may choose to sue the employer, causing the employer to incur legal fees and possibly damages.

I experienced workplace bullying from my supervisor at a previous employer. I was often excessively berated for asking questions, given unrealistic deadlines or projects above my experience level, and intentionally embarrassed in front of co-workers. I felt sick every time I drove into the parking lot each day, and it severely affected my work performance. The most difficult part was feeling like I had nowhere to turn for help. My coworkers would simply repeat the mantra “that’s just how he is” when I brought up the situation. Because he was my supervisor, I didn’t feel comfortable reaching out to human resources or anyone higher in the company’s hierarchy because I was afraid of making the situation worse. I didn’t know what to do, so I simply retreated into my office and tried to avoid contact, which did little to improve the situation.

In order to prevent situations like mine, or something worse, employers need to implement strong, clear anti-bullying policies. The policy should be included in the employee handbook and require the employee to sign, stating that they are aware of the policy. Employees need to be assured that they will not be subjected to retaliation for reporting bullying and they need to be provided with the person or, preferably, persons to whom bullying should be reported. As with any workplace policy, a disciplinary system must be put in place, and applied consistently to all employees, regardless of their place in the organizational hierarchy. As with any additions or changes to an employee policy, legal counsel should be consulted to ensure compliance with state and federal law.

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Posted in Employee Handbook, Employer Policies, Employer-employee relations