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Employment Law

Consent doesn’t mean it wasn’t harassment

04/14/2009

Employers sometimes mistakenly believe that consensual sexual activity between a subordinate and a supervisor isn’t sexual harassment. That’s simply not the case. As long as the activity was unwelcome, it doesn’t matter if the employee being targeted agreed to the supervisor’s demands. Fear or threats of losing one’s job can be enough to force an employee to “consent.”

Set policies, establish clear process for employees to report sexual harassment

04/14/2009

It’s been many years since a big sexual harassment case hit the Supreme Court. That’s no reason for employers to rest easy. Regularly review your sexual harassment policy to make sure it’s doing what it should do. Don’t forget to train new managers and supervisors on how to handle complaints, especially those who have recently been promoted from lower-ranking positions.

Go ahead and detail performance problems—criticism isn’t an adverse employment action

04/14/2009

Employees can sue for discrimination only if they can show they suffered an “adverse employment action.” In other words, they have to show that their employers somehow did something that affected their jobs—such as a demotion, discharge or pay cut. Merely criticizing an employee’s performance isn’t enough if it isn’t accompanied by something more substantial.

Using subjective hiring factors? Make sure you can clearly explain later

04/14/2009

Here’s an important reminder to managers and supervisors who interview candidates and use subjective characteristics to make hiring and promotion decisions: They’d better be able to explain exactly what led them to make the decisions they made. Interviewers should keep careful notes, including the specific questions they asked, as well as how the candidate answered the question.

Warn supervisors not to react to EEOC complaint

04/14/2009

It may be tough, but supervisors must avoid the temptation to lash out when they learn that a subordinate has filed an EEOC or other discrimination claim. Tell them not to discuss the matter with the employee. Instead, let HR and the lawyers handle the problem. It isn’t worth the risk of triggering a retaliation claim.

Gainesville votes to keep gay discrimination ban

04/14/2009

Gainesville’s broad anti-discrimination ordinance survived a referendum that would have stripped all protections for gay, lesbian, bisexual and transgender residents. Over 58% of those voting elected to keep the existing ordinance.

Family Dollar owes big bucks to misclassified managers

04/14/2009

Family Dollar Stores recently got a lesson in the nuances of overtime labor law. The 11th Circuit Court of Appeals has upheld the $35.6 million settlement of an FLSA class action suit brought by store managers at the discount chain.

Slumping auto market puts salespeople out of commission

04/14/2009

Commissioned salespeople are hurting in this economy, but their employers may be feeling the pinch, too. Take, for example, Rick Case Enterprise, a company that owns several Broward County auto dealerships.

Conducting background checks that comply with the FCRA

04/14/2009

Employers that hire outside firms or investigators to conduct employee investigations and background checks must make sure those vendors strictly comply with the Fair Credit Reporting Act (FCRA). Failing to do so can result in substantial legal risks, including damages, penalties, fines, punitive damages and attorneys’ fees awards.

Can we ban nurses from wearing protest buttons—without violating the NLRA?

04/14/2009

Q. Some of the nurses at our hospital have started wearing union buttons that state, “Nurses Demand Safe Staffing.” If the hospital administrators ban the buttons, will the hospital have committed an unfair labor practice?