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Employment Law

Develop objective promotion criteria, stick with them—and be sure to document them

08/11/2009

You’ve just made another tough promotion decision, and 10 other urgent tasks require your attention. Before you move to the next item on your to-do list, take the time to document the promotion process. That way, if you are later sued, you can easily show the court the factors you considered.

Burden is on employers to avoid double damages under FLSA

08/11/2009

The FLSA requires employers to pay the minimum wage and the correct amount of any overtime. Violate the law and you’ll have to pay double what you owe—unless you can show you acted in good faith and with the reasonable belief that you were following the law. That’s a tough sell unless you can show you followed legal advice.

Respond to unemployment comp notices right away

08/11/2009

An employer that doesn’t file an appeal within 20 days after it receives notification that a former employee has been awarded unemployment compensation benefits loses the right to appeal. Advice: If there’s the slightest chance you’ll contest unemployment benefits, respond to the notice immediately.

Tell bosses: Check anti-military bias at door

08/07/2009

Employers must deal with employees being called to military service, even if that forces them to do more work with fewer people during the current economic crunch. The Uniformed Services Employment and Reemployment Rights Act and the FMLA grant special rights to employees who also serve in the armed forces. Some managers may resent the burden the laws cause. Too bad.

Don’t factor in FMLA when making RIF list

08/07/2009

Many employers are discovering they have to cut staff to survive. It’s tempting to eliminate those positions where the least work is being done. After all, the employees doing the least work should be the least missed. But before you decide to RIF someone, remember that you cannot consider FMLA leave in the calculation.

Make sure your promotion process gives all qualified candidates enough time to apply

08/07/2009

Supervisors who want to hand-select a particular employee for a job may be tempted to play fast and loose with the company promotion process. Watch out!

Beware long suspensions, even with pay! They could be adverse employment actions

08/07/2009

Traditionally, a temporary suspension with full pay hasn’t been deemed an adverse employment action, mainly because courts want to give employers time to determine what an appropriate disciplinary action might be. But if the employer extends that suspension or turns it into a transfer to a no-duties position, courts may take that into consideration.

Check severity of harassment allegations when facing hostile environment claim

08/07/2009

Fortunately, courts don’t have the time or inclination to guarantee that every workplace is free of irritations or minor problems. Those can include what some employees may interpret as sexual harassment. One relatively innocuous pass isn’t usually enough for an employer to lose a case in court.

When employee complains years later, look for prior gripes

08/07/2009

Sometimes, employees claim they didn’t dare complain about alleged discrimination or a hostile work environment until years after the fact. To explain the delay, they may say that they were scared to complain. That’s when you should check for prior complaints. If there are any, the fact that they complained earlier can be used to show they couldn’t have been all that afraid.

Solid discharge reason trumps retaliation claim

08/07/2009

When an employee is discharged shortly after returning from FMLA leave, she may charge retaliation. The timing alone may be enough to send the case to trial. If an employer has a solid reason for the firing, however, it can win.