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Kansas

Investigate bias claims to declaw ‘cat’s paw’

07/08/2009

A legal theory often referred to as the “cat’s paw” holds that an employer can be liable for hidden bias if it merely rubber stamps a subordinate’s discriminatory decision. By conducting an independent evaluation of the situation, you can cut off that liability.

Acting against worker who has already complained? Have someone new make decision

07/08/2009

Employers have faced more retaliation claims ever since the U.S. Supreme Court made such cases easier to win by ruling that retaliation is an action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” While the federal courts have placed some limits on what constitutes a retaliatory act, they continue to struggle with the question.

‘Unethical’ isn’t enough under Minnesota whistle-blower law

07/08/2009

Employers can’t fire employees in retaliation for “blowing the whistle” on illegal activities. But Minnesota’s Whistleblower Statute doesn’t apply to workers who complain about practices they simply think are unethical.

Make sure employees don’t work on breaks; burden’s on them to prove they did

06/11/2009

Here’s a bit of good news for employers trying to make sure they don’t violate the Fair Labor Standards Act: The 8th Circuit Court of Appeals has ruled that employees—not employers—have the initial burden of showing they actually worked during unpaid lunch or other break periods.

Make firing decisions locally so possible lawsuit can’t morph into something larger

06/11/2009

Here’s added incentive to handle terminations and other employment actions at the local level. When employees sue, their attorneys often look to expand the lawsuit beyond one person. They’re trying to find larger patterns of discrimination. This strategy can sometimes succeed if higher-ups in the company made the decision and based it on a common policy or framework.

Avoid shifting explanations for termination

05/13/2009

One of the worst things you can do after you terminate an employee is change the reason for ending the employment relationship. Instead, decide on a defensible rationale—a performance problem or rule violation, for example, or perhaps a business downturn—and document that decision and all the supporting evidence.

Firing Guard or Reserve member? Better show you would have taken action despite service

05/13/2009

Members of the military have greater on-the-job protection than many other employees—including the right to return to their former jobs following a period of active-duty service. They also have the right not to be terminated or otherwise punished for being part of the armed services and taking military leave.

You can discharge if there’s no way to tell when employee will return to work

05/13/2009

Employers don’t have to provide a disabled employee with an indefinite leave of absence when the employee has a medical emergency and doesn’t know how long it will take to return. As long as the employee isn’t covered by the FMLA (in which case, she is entitled to 12 unpaid weeks of leave), you can terminate the employee without violating the ADA.

Don’t let counterclaim stop investigation

04/09/2009

It’s fairly common for someone accused of sexual harassment to counter that, in reality, he was the one who was being harassed. Then he gives HR a detailed complaint and a lengthy list of people to interview. Don’t let this tactic dissuade you. Instead, complete your investigation just as you would any other.

Unequal performance standards shout—not whisper—disability discrimination

04/09/2009

Treating disabled employees differently than others raises all kinds of red flags that disability discrimination may be afoot. For example, setting higher standards for disabled employees than you do for others is a surefire way to end up in front of a jury, as the following case shows.