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Employment Law

Stop harassment or face personal liability

05/11/2010

Ordinarily, managers who have the authority to make personnel decisions aren’t held personally liable for sexual harassment under Title VII. But that’s not necessarily the case under the New York State Human Rights Law. If you’re an HR professional with the power to make recommendations on hiring applicants or firing employees, make sure you don’t ignore sexual harassment claims that come your way.

OK to base pay on performance–without bias

05/11/2010

If you’re thinking about switching to a production-based compensation system that pays more to the most productive employees, don’t worry too much about the plan’s possible disparate impact on some groups. As long as you don’t use the system to discriminate against a particular group—or favor another—courts are unlikely to conclude that any uneven results were caused by discrimination.

12 manager mistakes that spark lawsuits

05/11/2010

Most lawsuits against employers don’t start with some outrageous injustice. More often, a simple management mistake or a perceived slight starts the snowball of discontent rolling downhill toward the courtroom. Here are 12 of the biggest mistakes managers make. They can all lead to litigation—and kill your credibility in court.

Never mention the FMLA during discussions about discharge

05/11/2010

One of the best ways to guarantee an employee will get her FMLA case in front of a jury is for her boss to mention her use of FMLA leave while discussing termination. FMLA is a “protected” leave for a reason. A good idea: Have someone neutral from HR deliver the news that the employee is being let go.

When creating job descriptions, focus on ‘essential functions’ employees really perform

05/10/2010

Courts hearing ADA cases generally trust employers to establish which job functions are essential and which ones are not. But that doesn’t mean you can trump up job descriptions with “essential functions” that are never performed. Courts sometimes see that as a way to avoid having to reasonably accommodate disabled employees. They’ll only consider those functions that employees perform in reality.

Policy alone isn’t enough: Take the next steps to stamp out harassment

05/10/2010

Sexual harassment cases aren’t going away. Employers that don’t take such harassment seriously put their companies in peril. It isn’t enough to come up with a policy. You must also train employees at every level about that policy and explain where harassment victims can go for help. Then you have to follow through and promptly investigate harassment claims. Finally, you must make sure your response is good enough to end the harassment.

PDA: No special treatment for pregnant workers

05/10/2010
As the name clearly implies, the federal Pregnancy Discrimination Act (PDA) makes it illegal to discriminate against women who are pregnant. But it doesn’t mean pregnant employees are entitled to special privileges. In fact, the PDA merely makes clear that employers must treat pregnant employees the same way they treat every other employee.

Can playing softball be working time?

05/08/2010
Question: According to the company grapevine, a couple of managers are pressuring their employees to attend and play on their softball teams at the company’s annual picnic. Would these employees need to be paid for this time?

Employee is pregnant? You can still discipline or fire if she violates your policies

05/07/2010
Federal courts don’t have much patience for faulty logic. A U.S. District Court in New York recently issued a particularly stinging rebuke to a nurse whose pregnancy discrimination case hinged on the “fallacious syllogism” that “I was fired; I was pregnant when I was fired; therefore, I was fired because I was pregnant.”

Obama appoints pro-union attorney to NLRB

05/07/2010
In a move that will tilt the balance of labor power in Washington more in favor of unions, President Obama last month appointed controversial labor attorney Craig Becker to the National Labor Relations Board. In February, the Senate had voted down Becker’s nomination.