First up, the post on Sunday 3/23/14 was about how NOT to choose a manager. The guidance here applies to any industry or market. So, what were some of the tips? Don’t assume someone wants to be a manager. Don’t base the decision (on making him/her a manager) solely on length of employment. Don’t overestimate the role of the person’s technical experience to his/her being a manager. More tips are in the post.
TAKEAWAY: There are leaders and there are followers; make sure your leaders will succeed, not just be a title.
On Monday 3/24/14, we listed 3 of the EEOC’s top enforcement priorities for the 2013-15 period: eliminating barriers in recruiting &hiring, (im)migrant worker issues, and pay discrimination by gender.
TAKEAWAY: The EEOC will be concentrating on these (and other) priorities, but employers must beware ANY illegal action in the workplace.
Next, on Tuesday 3/25/14 we listed other top enforcement priorities for the EEOC in 2013-15: not impeding the exercise of individual rights; preventing systemic harassment, and emerging areas (including pregnancy–related limits and coverage of LGBT individuals under sex discrimination laws).
TAKEAWAY: If employers comply with the law, they need not worry about what the EEOC has as its priorities.
Wednesday 3/26/14 we talked about how much is enough to constitute sexual harassment. In this case, the female employee said her male boss reached around her back and placed a hand on her shoulder twice, keeping it there for a few minutes (while he was driving her back to her hotel after dinner with other trainees) and also told her that “she owed him” for hiring her. Almost a year after those incidents, she was fired for poor performance and filed a sexual harassment retaliation claim. The federal court found the shoulder touches insufficient to constitute harassment under the law (as not being severe or pervasive enough even though they were “creepy and inappropriate”). The court also said that she didn’t report it and didn’t even describe it as sexual harassment when she did eventually complain. Finally, she did not show that her complaint was the “but-for” cause of her discharge.
TAKEAWAY: Employers should not condone anything inappropriate between employees at any level, but also should not shy away from discharging an employee if the facts support that action.
On Thursday 3/27/14, we talked about how a good defense to a suit under the FMLA, FLSA or ADA can win the day. The post gave background facts about the employee’s position, her medical condition, and what she did during work that led to the federal court case. So how did she lose? (1) The employer had records that clearly showed she was not eligible for FMLA leave, (2) the individual she sued under the FLSA did not have anything to do with payment of accrued comp time, and (3) the employee could not perform the essential functions of the job (which the employer documented based on a job description that it kept current and followed).
TAKEAWAY: Document, document, document. An employer should always have a legitimate, legal reason for taking any adverse action, and that reason should serve as a defense in case of suit too.
The post on Friday 3/28/14 reiterated that employers must not only stop any harassment in the workplace, but make sure it stays stopped. In a federal case out of New Jersey, the employer was aware of the employee’s disabilities. After harassment of the employee and his complaints, discipline ensued as well as some re-training of other employees. The harassment did not stop though, so the employee quit; this formed the basis of the court’s ruling that the claim for harassment could move toward trial.
TAKEAWAY: An employer cannot just stop harassment or discrimination; it must make sure the actions stay stopped!
Finally, yesterday 3/29/14 was a reminder for employers to do their spring cleaning – of wage & hour cobwebs, that is. An FLSA audit is one way employers can ensure proper classification of employees (as exempt or non-exempt) and contractors, as well as identify any special pay or other issues.
TAKEAWAY: Employers should periodically review how they have classified employees and contractors, and how they are being paid, to ensure legal compliance.
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.