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 2/9/14 included employment law tips for every business owner. The tips should be obvious but bear repeating: don’t make employment-related decisions based on sex, marital status, or parental status; have in place formal, evenly-enforced policies; and be friendly with employees but remain professional. There are many (other) ways employers can be legally compliant and still have a good business; periodic consultations with an employment lawyer are a good idea.
TAKEAWAY: All employment decisions, not just adverse ones, should have a valid, legal basis.
On Monday 2/10/14 the post included a tip to win a retaliation suit. I won’t give it away (click on the link for the article), but it involves splitting job duties to ensure transparency and less chance of retaliation, and, therefore, a greater chance of winning a suit.
TAKEAWAY: Employers should always take steps to improve the workplace and at the same time reduce risk of legal suit. By splitting job duties, it is easier to defend against a charge of retaliation.
Next, on Tuesday 2/11/14 the post was about whether or not employees need to use any particular word(s) to request FMLA leave. The short answer is NO. As long as what they tell the employer does -or should – put it on notice that the FMLA might be implicated, then the employer is on notice and has obligations to follow up.
TAKEAWAY: Make sure your HR personnel, as well as managers and supervisors, are properly trained to recognize when the FMLA might be implicated and what steps to take.
Wednesday 2/12/14 brought a post about the intersection of religious discrimination and accommodation. As so often happens, every case stands on its own facts, but these are instructive. The plaintiff here was a Nigerian native who moved to the US in 2008. When his father died, he requested 5 weeks of unpaid leave to go back to Nigeria for the burial, describing the rituals that would happen and the timing of same. The employer denied the request. He then submitted another request, this time for one week of paid leave and 3 weeks of unpaid leave, again with details on the rituals and timing. The employer again denied the request. He went anyway and, upon his return, was fired. He then filed suit, alleging religious discrimination. The court noted that protected religious beliefs are not necessarily those from a familiar religion and that no special words must be used by the employee in requesting religious leave to put the employer on notice. The court also found nothing from the employer to support its assertion of an undue hardship. So the employer ended up on the short end of the accommodation/ discrimination gun barrel.
TAKEAWAY: Employers must recognize sincere beliefs held by employees, whether or not of a familiar religion, and reasonably discuss any requests to accommodate based on those beliefs. Also, employers must actually have proof if they assert undue hardship.
Thursday 2/13/14 the post was about the cost of age discrimination. A 65-year old pharmacist was discharged and replaced by someone 27 years of age. After a 2-week trial, CVS was found liable by a federal jury. Judgment was entered against it for $400,000 back pay and an equal amount as liquidated damages due to the willfulness of the action.
TAKEAWAY: The facts of each case stand alone, but every adverse employment action should be rooted in a reasonable business decision.
The post on Friday 2/14/13 dealt with advice for employee terminations. It is never easy to discharge a good employee, but even the discharge of a less-than-stellar employee should result from forethought and have a good legal and business basis. The article provides some advice on discharges that all employers can take to heart.
TAKEAWAY: Sometimes the best thing for a company is to discharge an employee. It should be well thought out and done with dignity for both the employee and the company.
Finally, yesterday, 2/15/14, brought a post about what is considered workplace retaliation. Well, certainly job loss, pay cuts, demotions and reassignments, but also more. As pointed out in the article, retaliation could also include exclusion and ostracizing, giving the cold shoulder, and verbal abuses that may in one situation be allowable conduct or behavior or in another illegal retaliation.
TAKEAWAY: Employers need to be aware of what could possibly be deemed retaliation and work to prevent it before it happens. (Periodic training and education of employees is always a good idea.) If that fails, employers must try to remedy any retaliation that has occurred and make whole any employees harmed.
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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