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Employment Law

Survey: Employers expect more lawsuits in 2010

12/21/2009

Corporate counsels are preparing for a big year of litigation, with 42% of them anticipating an increase in legal disputes their companies will face in the next 12 months. That’s up from 34% last year, according to the annual litigation survey by Fulbright & Jaworski.

When should we request fitness-for-duty exam?

12/18/2009

Q. One of our employees recently told her supervisor that she has a heart condition. She went home early the other day because she wasn’t feeling well. Can we request that she get a doctor’s note clearing her to work?

Document your concern about employee before ordering a fitness-for-duty exam

12/17/2009

The ADA prohibits employers from demanding fitness-for-duty exams unless the exams are “job related and consistent with business necessity.” Employers can demand an exam if they have a reasonable belief that an employee’s medical condition will impair his or her ability to perform essential job functions or will pose a safety threat. If you believe either is the case, document your objective and reasonable beliefs before demanding the exam.

Keep the faith: You can accommodate religions in the workplace

12/15/2009

Two employees ask their boss to ax the company Christmas tree. A worker refuses to trim his dreadlocks, saying they are essential to his practice of Rastafari. A cashier insists she has a right to tell customers, “Have a blessed day.” Those cases have all wound up being tried in court. Employers can’t treat employees differently because of their religion, but that doesn’t mean religious accommodation is easy.

Can employee on FMLA leave collect unemployment?

12/15/2009

Q. We have an employee out on unpaid FMLA leave. She said she wants to collect unemployment compensation. Is she eligible?

Step up to a new high-stakes HR role: Stamping out conspiracies to discriminate

12/15/2009

Here’s another legal danger for HR to watch out for: The charge that a supervisor conspired to terminate employees belonging to a protected class. Employees who can show that a supervisor and someone else involved in a termination decision conspired to terminate employees of a particular race, sex or other protected classification have a separate claim beyond the traditional employment law remedies.

Be ready to come down hard on managers and supervisors who use ethnic slurs

12/15/2009

Employers that let bosses get away with ethnic slurs risk having an unsympathetic jury decide whether and how severely to punish them. If you don’t send a strong message to those who use slurs that such behavior is unacceptable, you risk creating a corporate culture that encourages more of the same—and you may also empower supervisors to retaliate against the targeted employee.

Check your records! Some old pay-bias cases get new life under Ledbetter law

12/15/2009

When President Obama signed the Lilly Ledbetter Fair Pay Act nearly a year ago, some employees got an additional chance to press their pay discrimination claims. That’s because the new law covers Equal Pay Act claims pending at the EEOC or in federal court as of May 28, 2007. Tip: If you haven’t already done so, now’s the time to review your compensation program to check for hidden sex bias.

Same title doesn’t make employees equally qualified

12/15/2009

Some employees believe they should be considered for a promotion just because they have the same job title as another employee being considered. But that’s not the case if the employees have different experience levels. For example, recent retirees may take entry-level jobs for which they are “overqualified.” When a promotion opportunity opens, their employer may be eager to use their talents more fully.

Design restrictive agreements that protect you—and stick in court

12/15/2009

Do you rely on restrictive agreements (also known as noncompete agreements) to prevent employees from working for the competition and stealing your customers? If so, now is a good time to make sure those agreements will stand up in court.
A recent 11th Circuit Court of Appeals case, Proudfoot Consulting Co. v. Gordon, illustrates the obstacles and complexity that can trip up employers that take former employees to court.