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Employment Law

EEOC says it’s legal to ‘encourage’ minorities to apply; but don’t say you’re ‘seeking’ them

10/16/2009

If you tack the phrase “women and minorities are encouraged to apply” onto the end of a help-wanted ad, could that be construed as race or sex discrimination? In a carefully worded opinion letter, the EEOC has said “no.”

Use eyes and ears to spot, stop harassment

10/15/2009

Some work environments are more at risk than others for sexual harassment to develop and fester. And those employers have a special obligation to look for harassment—and stop it. For example, if a few women now hold jobs traditionally performed by men, make sure the women aren’t being subjected to sexually demeaning or offensive conduct.

Don’t overreach when seeking balanced hiring

10/15/2009

If you’re looking to remedy past discrimination by adopting employment policies that encourage minority hiring, watch out! You may be vulnerable to a reverse discrimination lawsuit. That may be true even if your policies resulted from a court order to address discrimination.

Don’t guess on need for FMLA leave! Insist employees follow usual notification procedures

10/15/2009

Employees sometimes think that just calling in sick is enough to put their employers on notice that they need FMLA leave. That’s simply not the case. In the following case, the 8th Circuit concluded the new language in the FMLA means employers aren’t obligated to guess about an employee’s need for FMLA leave based on behavior.

Sometimes, employees just need thick skins—co-worker snubs aren’t retaliation

10/15/2009

Employees who complain about discrimination are protected from retaliation—but not from every consequence of their complaint. Take, for example, what often naturally occurs when someone files a harassment complaint that turns out to be unfounded or unworthy of drastic action like firing the alleged harasser. There’s bound to be backlash from other employees …

Stop post-firing harassment suits by tracking and investigating every complaint

10/15/2009

An employee who has been discharged may go looking for some underlying reason other than poor performance to explain why she got the ax. And she may suddenly remember incidents that now seem awfully a lot like sexual harassment. Your best defense to such charges is a robust harassment and discrimination policy that tracks every complaint.

Signed drug testing form good enough to satisfy DATWA

10/15/2009

The Drug and Alcohol Testing in the Workplace Act says, “Before requesting an employee to undergo drug or alcohol testing, an employer shall provide the employee with a form, developed by the employer, on which to acknowledge that the employee has seen the employer’s drug and alcohol testing policy.” Does that mean the employee has to sign the form immediately before the test is administered?

Use a shared tip jar? You must divide the money by shift

10/15/2009

If your counter service employees share tips customers leave in a tip jar, how you divvy up the money is important. A new case makes it clear that those tips must be counted at the end of each shift and shared among the employees who worked that shift.

Vikings defensive tackles now on offense over drug tests

10/15/2009

The 8th Circuit Court of Appeals in late September upheld a lower court ruling that the National Football League cannot suspend Minnesota Vikings defensive tackles Kevin Williams and Pat Williams for violating the sport’s drug policy.

Bonuses advanced and then rescinded: Does that threaten MFLSA exempt status?

10/15/2009

Q. Our bonus plan states that employees eligible to receive bonus pay will receive bonus advances with each paycheck based on year-to-date performance results. Last year, we were on track to meet the maximum bonus throughout most of the year, but the last few months of the year were slow and we didn’t meet our target goal. As a result, we deducted certain amounts from the last few paychecks of salaried employees. Do these deductions threaten the exempt status of the salaried employees?