EMPLOYMENT LAW: CLEARING THE MINEFIELDS
by Donald Phin
The way I look at it, most of today's employment lawyers (like most other professionals) do a poor job of working on their business-as opposed to in their business. How many create added value and sustainable partnerships with their clientele?
The fact is, most business owners and managers never establish a strategic business 'partnership' with an employment attorney. This is like putting your head in the sand. In today's insane legal environment, front-end compliance strategies are a must. Compliance audits, employee handbooks, personnel policies and procedures, hot-line services, training, and so on cannot be ignored without disastrous consequences. Good legal advice must take into account your business philosophy, structure-and financial resources.
These short articles can help you steer clear of the perils lurking in employment law:
WATCH THOSE JOB APPLICATIONS
According to the 10th U.S. Circuit Court of Appeals, a company whose job application asks whether an applicant ever received Workers Compensation or had a disability can be sued under the Americans With Disabilities Act if it then fails to give him or her the job-even if the applicant wasn't disabled! Because the courts and agencies are concerned about possible retaliation against a job applicant who may have filed any form of employment law claim, any such questions should be removed from a job application or interview process. Experts say that the best way for employers to protect themselves from these kind of suits is to avoid asking any claim-, disability-, or health-related questions during the interview. Once a conditional job offer is made, you can ask job-related disability or health questions.
How the question is asked makes a difference. For example, you shouldn't ask if someone has a disability that will prevent them from doing the job, but you can ask if they're capable of doing the job with or without accommodation. Only if the applicant has an 'obvious' disability (and who knows what that really means) can you ask if an accommodation is necessary. For more information, call Lawyer's Weekly at (800) 933-5594 and ask for Opinion No. 9914425. You can also obtain the full text of the Equal Employment Opportunity Commission's Enforcement Guidelines by accessing the Lawyer's Weekly Archives.
HOW MUCH PUNISHMENT IS ENOUGH?
One of the biggest issues in the courtroom is what type of conduct warrants punitive damages. Theoretically, at least, punitive damages are designed to punish and deter wrongful conduct. Although this is in large part semantics, the issue facing the U.S. Supreme Court is whether all intentional conduct is, by definition, 'egregious and, therefore, subject to an award of punitive damages.' The U.S. Court of Appeals in Washington, DC held that punitive damages would be proper when the evidence shows that the defendant engaged in a pervasive pattern of discriminatory acts, manifested genuine spite and malevolence, or otherwise showed a 'criminal indifference to civil obligations.' The dissent in the case suggested that the standard should be set lower, rendering employers liable any time they act with disregard for statutory prohibitions.
What this means is that you had better think twice before supporting any employee action that other employees (such as jurors) would consider beyond the bounds of fairness. Ask someone you respect, 'Does this sound unfair to you?' Also consider insulating yourself by seeking legal counsel in such a moment.
WHEN MUST AN EMPLOYEE SPEAK UP?
The recent U.S. Supreme Court case Faragher v. City of Boca Raton created what I'll call the 'duty to complain.' In other words, if you don't like what's being done to you, then speak up about it; if you don't speak up, you might not be able to complain later.
In interpreting the 'duty to complain,' a recent federal court ruling in Virginia stated that isolated sexual comments by a supervisor didn't trigger the obligation. The court stated that 'though unwanted sexual remarks have no place in the work environment, it is far from uncommon for those subject to such remarks to ignore them when they are first made. In this case, the facts indicate that isolated remarks were made, and that for a long period nothing further occurred. When, however, the sexual harassment became virtually impossible to ignore, she took immediate action.' Remember, the 'duty to complain' doesn't exist when an employee has suffered a 'tangible job detriment' at the hands of the harassing supervisor. When that happens, you are liable-period.
I'll say it again: Instead of waiting for problems to come to you, go to the source of the problems. Educate employees about these issues and distribute a Compliance Survey. If you're not using the survey by now, you need to start. If you need a copy, I'll fax or E-mail one to you.