Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
First up, the post on Sunday 2/16/14 was about the employee versus contractor question. This comes up over and over so employers should pay attention. Here, the article went through the list used by the IRS to decide whether someone is an employee or contractor. Many courts use the same test. You should too (at least in part).
TAKEAWAY: Employers should go through the test and job description at issue with their employment law attorney to ensure compliance with whatever classification is decided upon.
On Monday 2/17/14 the post was about why we no longer need HR departments. The article is that author’s opinion. He says that people (the “humans” in “HR”) should not be managed similarly to other resources. He also says that HR cannot both support employees and help manage them on behalf of the employer. The author also opined that HR tasks were mainly bureaucratic and administrative (or possibly legal-related), but did not really contribute otherwise. With that all said, the author then suggested ways to keep the function and fulfill the purpose: changing the name and using a people analytics’ team and a people support team. He then talked a bit about what each team’s job would be and how they better serve both the employees and the company.
TAKEAWAY: HR is often a middle-man between employees and the employer. To avoid that conflict, consider splitting the functions.
Next, on Tuesday 2/18/14 the post was about the fact that social media CAN form the basis for discharge. This decision came out of the NLRB – yes, the NLRB – and was based on the fact that while some of the posts at issue contained activity protected under the NLRA, others did not and could indeed serve as an independent basis for discharge.
TAKEAWAY: While being careful that adverse decisions do not run afoul of the dictates of the NLRA – which, remember, go beyond unionized workplaces — employers still have the right to discharge employees in the right circumstances.
Wednesday 2/19/14 brought a post about how an employer can do everything wrong – as to race discrimination and retaliation. There, the employer was a casino and the employee (Harris) got a $600,000 judgment. The brief facts: Harris, an African-American, interviewed for a position, it remained vacant for 6 months, and she assumed the job duties in the interim. Then a younger, less-experienced Caucasian woman was hired for the position and Harris had to train her. The employer then fired the Caucasian employee and hired another younger, less-experienced Caucasian female in her place; again Harris had to train her. The second hire was also fired. Harris then filed a charge of discrimination with the EEOC and, a month later, was fired (resulting in the retaliation charge).
TAKEAWAY: When it looks strange, it probably IS strange. Employers should not give anyone a reason to look.
Thursday 2/20/14 the post was about mishandling of an accommodation request. What did the employer assert and how did the federal court rule? The employer tried to argue that the employee could not perform the essential functions of the job (with or without reasonable accommodation) and that it had a legitimate nondiscriminatory reason for her discharge. The court found against the employer on both counts. On the essential functions argument, there were several variations of what those functions might be, such that there was no true definition (and thus the employer couldn’t win that argument). As to the other argument, the court found that the employer did not engage in the interactive accommodation process, so it got its wrist slapped again. The case was sent on for trial.
TAKEAWAY: Employers must make sure that they properly and fully respond to anything sounding of a request for accommodation – or be prepared to explain to a judge or jury why it didn’t.
The post on Friday 2/21/13 dealt with 10 ways HR departments might be violating the law. The article listed the 10 things – without asserting that any action is intentional – and suggested ways to avoid them. Read the article and maybe you will pick up a tip too.
TAKEAWAY: Employers and their HR personnel must ensure legal compliance – or they will be taken to task (and possibly purse) by employees.
Finally, yesterday, 2/22/14, brought a post about whether or not someone is a covered employer for discrimination purposes. The post linked to the EEOC website and its various definitions and helpful tips. Employers (and HR personnel) should be familiar with whether or not the employer is covered under various laws – the answer may vary.
TAKEAWAY: not all employment-related laws have the same threshold for employers – know whether or not your business must comply and with which statutes.
Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.
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