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The following articles related to employment law topics and issues are contained in full on this web page. I hope you find these articles useful. Following this listing of article titles, you will find the text of the articles. Scroll down the page to find the articles, listed by title. (Or, use your browser's "find" feature and search for a key word in the article). ARTICLE LISTING: "Five Steps All Employers Can take to Minimize Liability" "Reverse Discrimination Claims" "Age Discrimination Primer" "Workplace Violence - What You Can (and Should) Do" Can an Employer Recover Attorney's Fees for Defending a Claim?" "Child Labor Law Primer" "Background Checks for Job Applicants" "Employment Rights of National Guardsmen, Reservists and Veterans" "Harassment and Discrimination Based Upon Religion and National Origin" "Independent Contractors - Beware the Pitfalls of Misclassification" "Recordkeeping Tips and Suggestions" "Employer Liability for Employee Acts"
ARTICLES TEXT:
FIVE STEPS ALL EMPLOYERS CAN TAKE TO MINIMIZE LIABILITY
copyright Bob E. Lype, 2003
mployment claims are difficult and expensive to defend, and the outcomes are hard to predict. Since juries are typically made up of persons likely to identify with employees, every employer wants to avoid ever having to go to court, and if you ever do go to court, you want your "exposure" to be as limited as possible. Here are five things employers can (and should) do to minimize liability. Improve documentation. The most common gripe of lawyers defending employment claims is lack of documentation by the employer. Relying on one's memory is a dangerous proposition. All personnel actions and decisions should be documented, and the employer should have some uniform method and form for doing so. It is wise to have a form for disciplinary actions and routine evaluations which permits the employee to give input, since the employee's comments can alert the employee to problems and may, in some cases, be an acknowledgment that the employee was at fault. Supervisors should be trained about how and when to document things, as well as the importance. Train your supervisors. Far too many employers view training supervisors regarding personnel matters as a burdensome, unnecessary task. By far the most employee lawsuits are based, in one form or another, on the words or actions of a supervisor. At a minimum training in equal opportunity laws is necessary. Not only can good training be part of a defense to liability in some cases, but good training can help avoid the lawsuit in the first place. Have an effective complaint process. One of the easiest ways to learn about potential problems before a lawsuit or discrimination charge is filed is an effective complaint process. The complaint process should be clearly communicated to employees and uniformly followed. Complaints should be investigated, and if an employee has a valid complaint, appropriate action should be taken. If the process always ends in favor of the employer in one way or another, it will lose credibility as an ¿effective¿ complaint process. Never retaliate against an employee for filing a complaint. Deal with "problem" supervisors. As stated above, most employee lawsuits are based upon some words or actions of a supervisor, and good training for supervisors is key. However, many employers fail to take proactive steps to address problem supervisors, even when they are aware of problems. If it becomes clear that a supervisor has problems which could expose the company to liability, at a minimum the supervisor should be counseled and further training should be considered. If more drastic action is required, the employer must take it. One of the worst situations for an employer is to watch evidence being presented to a jury that a given supervisor had repeated problems, which the employer did nothing to correct. Periodically audit your policies, procedures and practices. Keep up with the latest developments in employment law. Review and update the forms you use, including job applications, interview procedures, job descriptions, handbooks, evaluation forms, leave forms, etc. Review your designations of exempt and non-exempt employees. Make certain personnel files are being properly maintained. Update required postings. If you are unclear about any particular requirement, ask your employment lawyer. If employers will take steps to improve in these five areas, they will be in a much better position regarding most employment claims.
Reverse Discrimination Claims - When Trying to Do the Right Thing May Backfire
copyright Bob E. Lype, 2003
Can an employer get into legal trouble for making an effort to hire more females and minorities? Maybe. Talk about being between a rock and the hard place...
Can an employer really get into legal trouble for going out of its way to seek diversity in the workplace by hiring more females and minorities? To the surprise of some employers, the answer is yes, it could happen. In particular, employers should be aware that discrimination laws like Title VII prohibit hiring and certain other employment decisions motivated by sex, race, etc. These requirements create certain "protected classes" of employees and applicants, consisting of females and certain minority groups. However, the basic premise of discrimination statutes is that an employer cannot make employment decisions on account of race, sex, or any other identified characteristic. While this typically refers to making decisions against a member of a protected class, what happens if the employer makes a decision for a member of a protected class and in so doing rejects an equally or better qualified candidate who is not in the class (typically, a white male)? That white, male candidate could make a claim of "reverse discrimination." Actually, "reverse discrimination" is a poor choice of terminology, because what discrimination laws make unlawful is any sort of discrimination based upon a characteristic like sex or race. Therefore, when a white applicant is denied a job so that a lesser qualified minority applicant can be hired, or when a male employee is denied a promotion so that a lesser qualified female employee can be promoted, it is arguable that there has been "discrimination" because of sex or race, and there is no need to label it "reverse" discrimination. It just happens that the employment discrimination has occurred against a member of the majority class, rather than against a minority class. Still, the term "reverse discrimination" has achieved a popular understanding and continues to be used by many courts. Stating a claim. In typical race and sex discrimination cases, the employee or applicant must show that he or she was in the protected class (the racial minority, or a female), that he or she was qualified for a given job, that he or she was rejected for the position despite being qualified, and that thereafter the employer hired or promoted a non-minority or a male with no better qualifications. The anti-discrimination statutes were passed in part because the legislature determined that there had been a historic pattern of discrimination against racial minorities and women, and the statutes were designed to remedy this persistent problem. There has been no long-standing, prevailing problem with employers rejecting white, male applicants or employees. Therefore, in reverse discrimination cases, some courts require an employee or applicant to prove more than the fact that he is white or a male in order to state a claim. Instead, the employee must demonstrate additional "background circumstances" supporting the proposition that the employer is that "unusual employer" who discriminates against the majority. For example, a white applicant or employee may show that the employer has some particular, specific reason or an identifiable inclination to discriminate against whites or males (e.g., its employment decision-makers are predominantly minorities or females, or there is some historical over-representation of minorities or whites among successful candidates), or that there is something else "fishy" about the circumstances which would warrant an inference that discrimination has occurred (e.g., a comparison of qualifications shows the plaintiff was a clear-cut leader for the position). Affirmative action plans. Some employers are subject to federal law requiring the employer to put in place an "affirmative action plan." Typically affirmative action plans are required of employers who work on government contracts, as well as employers who, in the past, have been found to have violated non-discrimination laws. Affirmative action plans require covered employers to look at statistical data concerning the number of minority job candidates available in the local labor pool, then attempt to implement goals of making certain that a corresponding percentage of their workforce represents those minorities. Affirmative action plans are supposed to represent goals, not quotas on the actual number of employees who must be hired in each minority group. If an employer is subject to an affirmative action plan, then that plan can be at least a partial defense to reverse discrimination claims, depending upon the circumstances. However, even being subject to affirmative action plan requirements is not an absolute defense against reverse discrimination claims. An employer subject to affirmative action plan requirements is really tracking statistics and making certain that information about job openings is placed in the hands of qualified minority applicants. But there is a difference between providing more information to members of the job pool, versus selecting employees based on race. Recent examples. Why bring up reverse discrimination now? Don't employers already have enough to think about? The reason is that unlawful discrimination based on race or sex, even discrimination against a majority applicant in favor of a minority applicant, can be a costly mistake. Moreover, even when the employer prevails in a discrimination lawsuit, that result usually comes at a significant cost. For example, in late May, 2003, a Tennessee frozen food company negotiated a settlement with the U.S. Department of Labor to pay $125,000-plus to more than 300 black and white job applicants who were rejected in favor of Hispanic workers, plus the company must offer those rejected applicants jobs as general laborers. Census figures showed that about 5% of Perhaps more frightening is a case arising out of Lessons. In hiring and promotion decisions, employers should be careful to document the basis for their decisions. If an employer can back up its decisions with legitimate business reasons (e.g., here is what we were looking for, here are the applications or resumes, here is why we made the decision), the employer has the groundwork to defend any discrimination claim, reverse or other.
Age Discrimination Primer
copyright Bob E. Lype, 2003
With age discrimination claims on the rise, employers should be mindful of the basics.
In the first three quarters of 2002, the EEOC reported nearly a twenty percent increase in age discrimination claims over the same period in 2001, and similar state law claims also appear to be on the rise. A combination of three factors seems to have spurred the increase: (1) both the nation¿s population and the workforce are aging (according to the U.S. Census Bureau, 12.4% of the national population is over age sixty-five, and by 2010 one-third of the workforce is expected to be at least age fifty-five); (2) in the current economy, with significant downsizing and layoffs, more and more employees are facing job losses and are considering legal claims; and (3) in general, age discrimination claimants are one of the most "sympathetic" of the protected classes, making more plaintiffs' lawyers willing to pursue their claims. Therefore, employers should bear in mind the possibility of age discrimination claims as they make employment-related decisions. This article will serve as a reminder of the basics of the law. What employers and what employees are covered? Employers with at least twenty employees are subject to the federal Age Discrimination in Employment Act (ADEA). Moreover, if an employer had twenty employees for each working day in at least twenty calendar weeks, either during the present calendar year or the previous calendar year, the employer is covered by the ADEA. State and local government agencies are covered by the ADEA. In addition, All employees age forty or above are in the ¿protected class¿ under both the ADEA and the THRA. There is generally no ¿cap¿ on the age of persons who are in the protected class. What employment practices are prohibited? Generally speaking, age discrimination statutes apply in the context of hiring, firing, promotion, layoff, discipline, raises, pay, fringe benefits, and similar decisions. Under most circumstances, any such employment decision cannot be based upon the employee¿s age. The critical question in an age discrimination case, as in most other types of discrimination cases, is how the employee might prove that an employment decision was based upon age? If the employee can establish that he was within the protected age group, that he was qualified for the position, that he suffered some adverse employment decision, and that there are circumstances which would support an inference that the decision was based at least in part on age, then the law requires the employer to come forward with a legitimate reason for the decision which is not age-related. If the employer's reason is false, or if it is a mere cover-up for the real reason (that being age discrimination), then the employee may argue to the jury that unlawful discrimination has occurred. What kinds of evidence would support an inference of age discrimination? In a firing case, for example, the replacement of an older employee with a younger employee may suffice. Comments or even jokes about the employee¿s age may become important evidence, especially if they were made at or near the time of the employment decision. In hiring cases, anything which shows a preference for younger employees may serve as evidence of discrimination, such as advertisement for "young" workers, or possibly even asking for an applicant's birth date. Most Courts, including our own Sixth Circuit, recognize "hostile environment" claims in the age discrimination context, as well. Therefore, creating an abusive or offensive environment which unreasonably interferes with the employees's ability to perform his job, such as constant age jokes and innuendos, put-downs, etc., could give rise to a claim. Reductions in force and layoffs. When an employer must make a reduction in force ( Exceptions and defenses. An employer can win an age discrimination case by proving that the employment decision was based upon reasonable factors other than age. Therefore, employers are not handcuffed when it comes to disciplining or terminating older workers for legitimate reasons, such as poor performance or misconduct. Under some limited circumstances, an employer may be able to establish that age is a bona fide occupational qualification (BFOQ), such as a rule regarding the hiring of airline pilots or employees in some strenuous occupations. However, this is a very narrow defense which should not be relied upon absent special circumstances. Employers may also treat older workers differently under a bona fide employee benefit plan, or under a bona fide seniority system. Finally, under some circumstances a bona fide executive or high policymaker may be excepted from coverage under the statutes. Liabilities. Similar to other discrimination cases under Title VII, a successful age discrimination plaintiff under the ADEA may recover back pay (i.e., lost wages from the date of the discriminatory conduct through trial), front pay (i.e., anticipated lost earnings for the future), attorney's fees and litigation costs. Unlike Title VII, compensatory damages (e.g., for emotional distress, pain and suffering) are not available under the ADEA, nor are punitive damages. However, because procedures and remedies under the ADEA were originally written to parallel those under the Fair Labor Standards Act, under the ADEA a successful plaintiff may recover "liquidated damages" equal to a doubling of his damage award, if he can prove that the employer's violation was "willful," meaning that the employer knew its conduct was unlawful or showed reckless disregard for whether its conduct was unlawful. A specific intent to violate the ADEA is not required in order to recover liquidated damages. Finally, jury trials are available under the ADEA. Under the THRA ( Practical advice. First, employers should be familiar with age discrimination laws and recognize when a situation may implicate those laws. It is wise to run employment decisions affecting older employees by your attorney. Just as you would not tolerate jokes and the like at the expense of an employee on account of her race or sex, do not tolerate the same things on account of age. Make your policies age-neutral. Do not take an employee's or applicant's age into account in making hiring, firing, pay, and similar decisions. Just as importantly, be mindful of things which might give the appearance of an age-based decision, even when there are other legitimate factors.
Workplace Violence - What You Can (and Should) Do
copyright Bob E. Lype, 2002
Taking steps to protect employees is an employer's obligation, and failing to do so could have expensive consequences. We have all heard the horrible stories of postal workers going on shooting rampages, and we have seen news coverage of similar killing sprees at other places of employment. However, workplace violence involves much more than homicidal binges by disgruntled workers. According to statistics from the Department of Justice, there are 2 million assaults annually in the workplace in Moreover, approximately half a million "aggravated" assaults, rapes, robberies and murders occur in the workplace each year in Who are the perpetrators, and which employees are most at risk? One of the first steps in preventing workplace violence is knowing who are the most likely perpetrators, as well as which employees are most at risk. Studies show that certain groups are more likely to be perpetrators of violence in the workplace, and often victims share certain characteristics. Many violent acts in the workplace are committed by strangers, or "criminal perpetrators." These are persons who have no legitimate reason to be at the workplace, and who have no relationship with the employer or the employees. These perpetrators typically commit violent acts in the course of committing a crime, such as robbery, burglary, shoplifting or trespassing. Studies show that most workplace homicides are committed by these strangers. The employees most at risk of violence committed by a criminal perpetrator are those most likely to be targets of thieves or robbers, such as convenience store clerks, drivers, small store proprietors or managers, and others who handle money. Also at risk are employees who work alone, or who work late evenings or early mornings. Besides criminal perpetrators, clients, customers or business patrons sometimes make threats or engage in violent behavior in the workplace. These are persons who have a legitimate relationship with the business, including patients in the healthcare fields. In fact, healthcare workers, such as nurses, are the most frequent victims of crimes by "clients or customers," followed by schoolteachers. In addition, receptionists and other employees who have the most public contact seem to be more at risk. Employees (present or past) are responsible for about 7% of workplace homicides. In difficult economic times, it is not hard to imagine a laid off or disciplined worker bearing anger at his supervisors or resentment against other employees. Supervisory employees who discipline workers are frequently victims of these assaults, although attacks against other co-workers are not uncommon. Finally, family members, acquaintances, and persons who have personal relationships with employees are sometimes perpetrators of violence at the workplace. In most cases, these violent acts are a continuation of domestic violence outside the workplace. About 5% of workplace homicides are committed by these individuals. Statistically, these perpetrators (and, in fact, most perpetrators) are far more likely to be males. Victims of violence from these perpetrators tend to be females, but males are also at risk as bystanders, perceived romantic interests, etc. The "costs" of workplace violence. First and foremost, there are serious psychological costs when an employee is injured in an act of workplace violence, both to the injured employee and to the morale of the rest of the workforce. These costs are difficult to measure, but they are nonetheless real. Employee efficiency and effectiveness can be severely hurt by an incident of workplace violence and the resulting anxiety, stress, grief and fear. Beyond that, nonfatal injuries sustained in acts of workplace violence usually result in missed work, and more than half of the employees who miss work for these reasons miss at least three days. There is a higher rate of employees simply quitting after such an incident. If a serious incident occurs, it is not unusual for a business to close down for several days. While these costs are difficult to calculate, many estimates place them in billions, or even tens of billions, of dollars annually across On top of those costs, employers may also face legal liabilities for their acts and omissions (discussed below). Potential employer liability. The Occupational Safety and Health Act (the OSH Act, administered by OSHA), which applies to virtually all employers, requires an employer to furnish employees a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." If an employer has reason to know of possible workplace violence (e.g., threats, intimidation) but does nothing to protect its employees, OSHA may impose civil fines and penalties of $5,000-20,000 per violation, depending upon the seriousness. Apart from OSHA, the employer may face liability for workplace deaths or injuries under various common law claims. Employers should bear in mind that workplace violence may not only result in injuries to employees, but also to customers, patrons, visitors, vendors, etc. In short, if an employer fails to exercise reasonable care or control over employees to prevent foreseeable injuries, the employer may be liable. What is "foreseeable," however, is highly debatable. An employer may be liable for "negligent hiring" if it knew or should have known that an employee was somehow dangerous or unfit to perform his duties. For example, if the employer failed to conduct a basic background check which would have disclosed a violent criminal history, it would be arguable that the employer was negligent. Likewise, once an employer has actual knowledge of an employee¿s violent tendencies, if the employer fails to take reasonable precautions and someone is injured, the employer may face liability for negligent retention or supervision of the violent employee. If one employee injures another employee, rather than a visitor or guest, then there may be questions as to whether the injured employee is limited to seeking recourse under workers' compensation law. If an employee is injured in an assault which is "connected to" the employment, then the employee may be limited to workers' compensation benefits and unable to sue the employer under a common law negligence theory. On the other hand, when a clearly private dispute spills over into the workplace resulting in an injury, workers¿ compensation law probably will not cover the injuries, and the employee may be able to pursue a common law negligence claim against the employer. Thus, when a stranger assaults an employee, and when the employment put the employee in harm's way, there is a strong argument that the employee should be entitled to recover under workers' compensation, but he would not be able to sue the employer under a negligence theory. On the other hand, if a co-worker assaults an employee solely because the co-worker believed the employee was having an affair outside the workplace, there is a strong argument that workers' compensation would not be triggered. Thus, if the employer was somehow negligent in not preventing a foreseeable altercation, it might be liable to the employee. Bear in mind that any recovery under workers' compensation law would be limited by statutory provisions, and would not include recovery for difficult-to-measure "pain and suffering" and other general damages. On the other hand, recovery under a negligence theory would allow such damages, and generally speaking the employer¿s risk of liability is much greater. These cases are very fact-specific and sometimes the outcome is difficult to predict. Still, a prudent employer will recognize this potential liability. Of course, if a non-employee is injured in an act of workplace violence, then there is no workers' compensation coverage, and the employer faces possible liability under common law negligence theories. How significant is the risk of liability for employers? Consider these cases: in Asheville, North Carolina, an employee with known violent tendencies walked into a manufacturing and warehouse facility and killed three employees with an M-1 rifle. Despite knowing of the employee's violent tendencies, managers working for the employer decided not to do anything, although it was suggested that they bring in an armed security guard. In May, 1999, a jury returned a $7.9 million verdict against the employer in favor of two slain co-workers (although recovery was denied for one injured and one slain management worker). A Connecticut jury awarded an Amtrak supervisor who was shot by an employee with known violent tendencies $3.5 million. A $5.9 million verdict was returned against a California temp agency for a fatal stabbing committed by an employee. A Michigan jury awarded $4.25 million to the family of a postal worker fatally shot by a co-worker. Once again, if the claim is allowed outside the workers' compensation context, the exposure to liability could be very significant. Between the rock and a hard place. So, should employers comb through their workforce and get rid of those who may appear to present a threat? Should all applicants be asked about their mental health history? Not necessarily, because this could expose the employer to liability to the employee. The Americans with Disabilities Act (ADA) does permit employers to exclude from the workplace employees who pose a "direct threat" to the safety of themselves or others, but a "direct threat" requires a "high probability of substantial harm." Under the ADA it is virtually impossible for an employer to inquire into an applicant's history of mental illness. What if, during the course of employment, the employer learns that an employee has a diagnosed psychiatric disorder? If the disorder qualifies as a "disability" (likely), then the employer has a duty to provide reasonable accommodation to permit the employee to work, and it probably will be necessary to have a meaningful dialogue with the employee relative to whether an accommodation can be made... yet if the employer allows the employee to remain at work and the employee engages in aggressive behavior which injures someone, the employer may be at risk of liability. So what should the employer do? There are things an employer ought to do. In the fields of healthcare and night retail industries, OSHA has published guidelines and recommendations which are worth reviewing, even by employers not in those industries. First and foremost, employers should adopt and publish to employees a "zero tolerance" policy toward aggressive or violent behavior at the workplace. This includes a safe complaint procedure for employees to report their concerns about potential or actual threats, intimidation or violence, without fear of reprisal. The procedure should protect confidentiality and should identify a designated official to receive such reports. The policy should be written and communicated to all employees and applicants. Second, it is not enough to have the policy in place - it must be enforced across the board. Supervisors should be trained in handling situations. "Zero tolerance" should literally mean "zero tolerance." Even if an employee has a history of mental illness, and is therefore covered by the ADA, a uniformly applied zero tolerance policy means that his aggressive acts are not in any way protected. As part of the workplace violence policy, Tennessee employers should consider specifically stating that the possession of weapons, including handguns, on company property is prohibited. This would include employees who are authorized by law to carry concealed weapons. Oddly enough, there is no specific prohibition against carrying such weapons on the workplace premises unless the employer specifically posts such a policy, as allowed by Tenn. Code Ann. section 39-17-1315(b). Supervisors and managers should also be trained to recognize various danger signals, including: when an employee has been fired or laid off; an employee who has made verbal threats; an employee who is under visible stress or has had changes in habits; an employee making bizarre remarks; an employee overreacting to situations; an employee with mood swings or depression; an employee suffering marital or family problems, or financial problems; an employee expressing anger, paranoia, or having difficulty accepting criticism. If a situation or incident is reported, the employer should investigate, interview witnesses, informants and targets quickly, prepare thorough written reports, and take whatever actions are called for. Many employers provide free Employee Assistance Programs (EAPs) as a benefit of employment, which allow troubled employees a means of discussing problems confidentially, as well as obtaining counseling. Such programs can help employees deal with stresses, alcohol, or drug problems. Employers should conduct thorough pre-employment background investigations of prospective employees, particularly in certain situations, bearing in mind the limitations of the Fair Credit Reporting Act if a third party investigator is used. At a minimum, follow up on job references, talk to former employers, and ask about any gaps in employment history. The interview process should be treated as critically important. The interviewer should use open-ended questions and be observant of "red flag" responses. One of the best ways to avoid workplace violence is to avoid hiring violent workers in the first place. Finally, put some real thought into this potential problem, from a practical perspective. Analyze your workplace and identify particular areas of risk. Think about your reception area, parking lot, break room and locker room - how could they be made safer? Consider inviting a law enforcement officer to tour your facility and make suggestions. Arrange furniture to prevent employees from becoming trapped, and consider installing panic buttons. Make visitors sign in and out, require name tags, post security numbers by telephones, and keep doors locked after hours. Survey employees and get their input. Consider closed circuit cameras, keypad access to work areas, and security guards. Train employees on an evacuation plan, and train them to recognize and anticipate problems. Take precautions regarding money you collect and bank deposit procedures. Avoid doing anything to antagonize a discharged employee. If you must terminate employment, allow the employee a brief opportunity to speak his mind. Schedule the discharge for the end of the day and do not allow the employee to go back into the workplace unescorted, but instead make arrangements for the return of his personal property or allow him to collect his effects under appropriate security. Conclusion. Dealing with workplace violence is a blend of common sense, good planning, and commitment. Employers should recognize the potential problems of workplace violence and their obligations to do whatever possible to prevent it. The prudent employer can minimize his costs and losses, can avoid exposure to certain liabilities, and can provide the security of a safer workplace for employees.
Can An Employer Recover Attorney's Fees for Defending a Claim?
copyright Bob E. Lype, 2002
This is a question frequently asked by employers, especially employers who have spent sizeable sums of money successfully defending against meritless legal claims by employees or ex-employees. Even though stories about employees winning major judgments against employers make the news, the truth is that far more employees' claims are resolved in favor of employers, often on summary judgment. However, even getting to the point of summary judgment can be an expensive proposition, since usually a number of depositions will be taken and other time-consuming discovery completed. So, what if you prevail on summary judgment? What if it's a slam dunk win for you, clearly recognizing that the employee had no basis for a claim, and clearly vindicating your decisions and practices? Can the employee be made to pay all or part of your legal fees and expenses? If the employee's claim was under While recovery of attorney's fees generally is not permitted under Under certain federal discrimination laws, namely Title VII and the Americans with Disabilities Act (ADA), attorney¿s fees may be awarded to the "prevailing party," whether that party is the plaintiff or the defendant. Under the federal Age Discrimination in Employment Act (ADEA), only prevailing plaintiffs can recover, although at least a few courts have permitted an occasional recovery by a prevailing defendant. However, before you get your hopes too high, a defendant generally can only recover attorney's fees under these federal statutes if the plaintiff's claim is adjudged frivolous, unreasonable, or without foundation. Literal "bad faith" by the plaintiff is not necessary, although "bad faith" can independently justify an attorney's fee award against a plaintiff. Such "bad faith" includes claims which lack factual or legal basis, or which are pursued for improper purposes, such as to harass, oppress, or delay. In addition, if a plaintiff's lawsuit was not frivolous when it was filed, but if in the course of the lawsuit it became clear that the suit was frivolous, attorney's fees could be assessed for continuing to pursue the frivolous suit. As a rule of thumb, a prevailing plaintiff in a federal discrimination lawsuit will almost always be permitted at least a partial recovery of attorney's fees against the employer, but a prevailing employer will rarely be awarded fees on account of a frivolous claim. Courts will jealously guard employees' rights and generally fear the "chilling effect" on other employees' rights resulting from such an award. Typically even a losing plaintiff can make some good faith argument in support of his or her position, such that the claims will not be considered frivolous. Therefore, by far most of the costs of meritless employee claims will continue to be borne by employers. However, in appropriate circumstances, the employer may use the possibility of an attorney's fee award or a discretionary cost award as a disincentive for the employees or their lawyers, and in some cases the employer may even recover its fees.
CHILD LABOR LAW PRIMER
copyright Bob E. Lype, 2002
In the good old summertime, many school-age young people look for jobs, and many employers need summer help. But whether an employer hires young workers on a seasonal basis or year-round, there are numerous rules to be considered. There are both federal and state laws governing child labor, and whichever law provides the stricter or more specific standards applies. The applicable federal law is part of the Fair Labor Standards Act (FLSA), and like nearly all other states, Children under age 14. With limited exceptions, neither the FLSA nor Children ages 14-15. Children ages 14 and 15 may work, but generally only outside school hours and in nonhazardous jobs. These children may only work up to a maximum of eight hours per day or forty hours per week during non-school time. When school is in session, they may only work three hours on any school day and up to eighteen hours per week. If the next day is a school day, children ages 14-15 may not work between 7 p.m. and 7 a.m., and even when the next day is not a school day they may not work after 9 p.m. or before 6 a.m. Children ages 16-17. If they are enrolled in school, children ages 16-17 cannot work during school hours. Whereas the FLSA does not contain restrictions as to the hours or days of the week when 16-17 year olds can work, under Work prohibitions. Apart from the above-referenced rules related to work hours, both federal and state law prohibit minors under 18 from working in certain hazardous occupations, including jobs involving: mining, use of explosives, logging and sawmilling, various power-driven machines, punch presses, meat packing, roofing, wrecking and demolition, and some other activities. Under Other provisions. Employers should also bear in mind that both federal and state law require that child labor notices be posted in the workplace. Finally, the penalties for violations of these child labor laws can be severe, and they include both civil and criminal penalties. Under the FLSA, a willful violation can result in fines of up to $10,000. Civil penalties of up to $11,000 for each violation, for each child, can be assessed if a serious injury to the minor occurs. Under Many business are dependent upon employing minors, who typically command a lower wage and may be willing to work less desirable hours. Even businesses which do not typically employ minors may choose to do so on a temporary, seasonal basis. As with all employment laws, it certainly helps to know the rules of the game before you begin playing, and this includes child labor laws.
Background Checks for Job Applicants
In the changed world since September 11, employers should revisit their policies concerning background checks.
Many employers have long considered background checks for job applicants to be a waste of time, or they have engaged in only minimal efforts to learn any useful information about their new hires. The events of September 11 have changed the American workplace in many ways, and more employers are beginning to view background checks in a new light. Employers have a general duty to provide a safe workplace and to take reasonable steps to prevent workplace violence. In addition, every employer wants honest, trustworthy employees. In many instances, background checks for applicants can help ensure that new hires "are who they say they are," that they truly have the skills or background you need, and that they have no record of violence, criminal activity, etc. But how can a useful background check be conducted, and what information can be collected? This article will discuss some of the basics of background checks. Some reasons for background checks. As noted above, one of the main reasons for a background check of job applicants is the employer's duty to provide a safe workplace for coworkers, as well as for clients and customers. Health care employers may be subject to OSHA advisory guidelines pertaining to their industry, related to prevention and response to workplace violence threats, as are employers engaged in late-night retail establishments. But regardless of the business or industry, employers have a duty to take reasonable steps to provide a safe workplace. After all, employees are an employer¿s most valuable asset, and they are certainly worthy of protection. In addition, employers can reduce their possible liabilities for negligent hiring and retention if they give proper attention to background checks. Most of us have heard the stories of the delivery man who was hired without ascertaining that he had multiple sex offense convictions, or the driver who was hired without learning that he had a horrible driving record, or the nursing home assistant who was hired without a check of the available abuse registry - all with devastating results. An employer's due diligence in the hiring process can provide a defense to liabilities for such claims. Finally, it is generally understood that employers lose countless dollars each day as a result of dishonest, unqualified or unreliable employees. One industry source states that 30% of all applicants falsify information about their educational background. (Look at George O'Leary, short-term head football coach at the University of Notre Dame). Checking an applicant's employment or educational background, work experience, and the like can save an employer headaches, time and money down the road. Risks and pitfalls - Discrimination laws and the Fair Credit Reporting Act. Of course, there can be no good rule of thumb in employment law unless there are a myriad of corresponding risks and pitfalls. Such is the case with background checks. First, although an employer need not perform a background check on every applicant for every position, there should be legitimate business reasons for any differentiation. By all means, an employer should not selectively choose to perform background checks for only certain applicants for a given position. An employer may be held liable for discrimination, even if it did not intend to discriminate, if its investigation practices result in unequal treatment or impact to members of a given race, national origin, ethnic group, religion, sex, age, etc. If you have a legitimate reason, you can decide that background checks are necessary for one position but not another, but you should not differentiate between applicants for the same position. An employer may conduct all or part of a background check itself, or it may seek reports from some third party database or consumer reporting agency (e.g., Equifax). To the extent an employer uses these outside sources, the employer must be careful to comply with the requirements of the Fair Credit Reporting Act (FCRA). The FCRA applies whenever "consumer reports" or "investigative consumer reports" provide information which is used, or may be used, for employment purposes. Once again, the FCRA only applies when the services or databases of outside agencies are used. To comply with the FCRA, the employer must first provide a disclosure to the applicant (or the employee) that the report will be requested, which must be provided in a separate document which does not refer to other subjects. Therefore, the disclosure cannot be part of the job application, but should be a separate document provided as part of a packet for applicants. In addition, the employer must obtain written consent from the applicant to the collection of the report. The written consent need not be in a separate document, and therefore it can be part of a signed job application, if the consent language is made conspicuous. Then, before obtaining the report, the employer must provide a certification to the consumer reporting agency. This is usually accomplished by a document signed by the employer when the report is requested. When an employer has obtained a consumer report which influences the employer¿s decision not to hire an applicant (or to terminate or take any adverse action with respect to an existing employee), before making the final decision, the employer must provide the applicant a copy of the actual consumer report relied upon, as well as a summary of consumer rights prescribed by the Federal Trade Commission (FTC). There is no set rule about how long the employer must wait between providing these items to the applicant and making a final decision, but the FTC says that the employer must wait a "reasonable" amount of time. Finally, after the items have been provided, the employer has waited a reasonable period of time, and a final decision has been made, the FCRA requires the employer to provide an "adverse action notice" to the applicant. The notice is not required to be written, but a written notice is clearly preferable. The notice must contain identifying information about the consumer reporting agency, a statement that the agency did not make the decision in question, a statement of the applicant's right to obtain an additional free copy of the report, and a statement of the applicant¿s right to dispute the accuracy of the report with the agency. The notice need not contain any explanation about what part of the report influenced the adverse decision. If the employer fails to follow these requirements, then it can face a lawsuit to recover actual damages, fixed penalties, or both, even if the employer can conclusively show that the applicant would not have gotten the job, regardless of the contents of the report. Whew! Those sound like some stringent requirements. And in a sense they are. However, compliance is really pretty simple, if a policy is adopted and followed, and if proper forms are used. Some reporting agencies will help by supplying some of the required forms. And while the FCRA imposes significant requirements upon employers obtaining consumer reports, in many cases the benefits of having the reports greatly outweigh any inconvenience. What information should be checked? Once you have decided a background check is needed, you will also have to decide what information is needed. Sometimes obtaining a consumer report, as discussed above, is necessary, and other times it is not. Even without a consumer report, an employer can obtain or verify certain critical information, either through its own investigation or through pointed interview questions. For example, the employer can check personal references given in an application, as well as prior employment and educational history. Employers should pay particular attention to any gaps in employment history. There may be legitimate explanations, such as school attendance, military service, or even taking time off "to get one's life in order." But questions need to be asked. Consider the applicant who explained a two-year gap in his employment history by saying that he had been taking computer courses. Only after asking several additional questions did the employer learn that these were courses offered in prison. How much of a check is required will often depend upon the position applied for. If the position calls for handling money, for example, it may require a more thorough check that a forklift operator's position. Depending upon the circumstances, employers may check criminal records, driver's license and motor vehicle records, social security numbers, credit reports, employment history, employment references, personal references, educational background, professional license records, sex offender registries, nurses' aid registries, and other items. Costs for checks performed by others will vary, but a fairly thorough background check can usually be performed for $100-200, and basic criminal records checks can cost as little as $25. Conclusion. Many employers are re-thinking their background check policies and procedures. The costs and aggravation of performing a check must be weighed against the potential costs of hiring the wrong person. Each employer, personnel manager or human resources manager should understand the basic requirements of the FCRA. Always make sure you get two forms of ID, as required by the INS in completing your I-9 forms. Always, always require applicants to complete job applications, with such information as employment history, personal references, and questions about criminal records. Compare job applications to any resumes the applicant provides. Ask pointed questions in the interview. And if a background report or a consumer report is created, actually read it. (Surprisingly, this is frequently overlooked). Employers will never achieve true peace of mind when it comes to employee relations. However, gaining a sense that you know your new hire, and that you have hired the right person, can go a long way.
Employment Rights of National Guardsmen, Reservists and Veterans
copyright Bob E. Lype, 2001
With more and more National Guardsmen and reservists being called up for active duty, employers must be mindful of their obligations.
Following the tragic and terrible events of September 11, 2001, the Already we have seen a significant call-up of military reservists, as well as National Guardsmen. We can expect more and more men and women to be called into service, leaving their homes, their families, and their jobs to perform vital tasks in the defense of As an employer, you should be mindful of your obligations regarding these circumstances, as well as the rights of the employees called into service. This article will provide an overview and summary. Federal law. Employers should first be aware of obligations imposed under a group of Federal statutes, collectively called the Uniformed Services Employment and Re-employment Rights Act (USERRA). These statutes have been held applicable to employers of all sizes. The primary obligations can be summarized as follows: (1) Employees must be permitted to take time off work, up to five years, to perform their military service. At the end of the service, the employee must report for re-employment within a given time, depending upon the length of time missed. (2) The employer may require documentation regarding such things as the length character of the employee¿s service. (3) For employees who have continuously served 90 days or less, the employer must rehire them into the same position the employee would have attained, if the employee had been continuously at work (unless the employee is not qualified for any advancement, in which case he or she must be rehired into the same position once held). (4) For employees who have continuously served 91 days or more, the employer must rehire the employee, although he or she may be rehired into a position of pay, status and seniority comparable to that previously held. (5) A returning employee must receive all seniority-based benefits they had, or would have received, and all non-seniority benefits established by contract or policies in place at the time the leave commenced. (6) If the employee was gone for more than 180 days, you cannot terminate his or her employment, except for cause, within one year of the return. If the employee was gone for between 30 and 180 days, you cannot terminate his or her employment, except for cause, within six months of the return. (7) An employer cannot require employees to use their accrued vacation, annual leave, or similar leave while performing active duty. The statutes provide that an employer is not required to re-employ someone covered by these sections if the employer's circumstances have so changed as to make the re-employment impossible or unreasonable, or if re-employment would impose an undue hardship, under the circumstances. The burden of proving these excuses is upon the employer. Employers should be wary of making these arguments in borderline cases, because the courts have been liberal in applying USERRA to protect the employee's rights. If an employer fails in these obligations, the employee may file an administrative charge, he or she may ask the Department of Justice to intervene, or he or she may file a lawsuit. The lawsuit may be filed in either state or Federal court. The court may award the employee reinstatement, lost pay and benefits, and, if the employer¿s actions are found to be willful, the amount of lost pay and benefits may be doubled as liquidated damages. In addition, the employee¿s attorneys¿ fees may be awarded. Related Federal law. Although it does not directly affect the employment relationship, business owners should also be aware that the call-up of Guardsmen and reservists may also trigger certain protections contained in the Soldiers' and Sailors' Civil Relief Act, which is designed to minimize the financial impact of active military service to the men and women who serve, and to their families. The purpose of the Act is to suspend certain civil liabilities and obligations of servicemen and women, so they can devote their full attention to their national defense responsibilities. The Act contains these primary protections: (1) collections actions and civil lawsuits against active service personnel are postponed until the service member is able to return and adequately protect his or her interests; (2) repossessions and foreclosures against active service personnel are prohibited, unless there is specific court permission; (3) a maximum interest rate of 6% is available with respect to all pre-service obligations (including home mortgages); (4) service members can terminate leases with 30 days¿ notice; (5) guaranteed life insurance premiums are available in order to continue coverage; (6) courts may not enter default judgments against service members, unless specific guidelines are followed; and (7) the time within which a service member may file suit or be sued is extended while he or she is in active duty. In most cases, it is up to the service member to advise the court or the creditor of the circumstances and request these protections. Conclusion. It goes without saying that the men and women who serve our country deserve our deepest gratitude and appreciation. They take great risks and make great sacrifices. Therefore, the law grants them various well-deserved protections. Sometimes losing the services of an employee due to National Guard or military reserve duty can be a significant hardship to an employer, as well. In times such as these, everyone should be willing to sacrifice and endure certain hardships. If the circumstances are such that your business may be significantly harmed by these obligations, it is possible that some of the employment-related obligations may be excused. However, all employers should be mindful of these legal requirements in the days, weeks and months to come.
Harassment and Discrimination Based Upon Religion and National Origin
copyright Bob E. Lype, 2001
In the aftermath of the September 11 terrorist attacks, employers must be mindful of these "other," lesser known forms of unlawful conduct. Most employers are keenly aware of certain types of prohibited employment discrimination and harassment, such as that based upon sex, age, or disability. And many employers are also aware, at least in some general sense, that employment discrimination law covers other types of unlawful employment discrimination, including that based upon the employee's or applicant's national origin or religious preferences. However, while nearly all employers routinely face employment decisions involving employees or applicants over age 40, or with some physical or mental disability, and while nearly all employers must deal with the equal treatment of men and women in the workplace, a great many employers have never faced situations involving different treatment of employees and applicants based upon their national origin or their religion. The events of September 11, 2001 have left many Americans feeling afraid and anxious, often looking for someone to blame. Television reports have shown us pictures of the terrorists and their suspected leaders, who are identified as Middle Eastern or Arab men of the Muslim faith. Reacting to the horrific attacks, some Americans have vented their anger and frustration against persons in their communities - and in their workplaces - who look a certain way, or are from a certain culture, or members of a different religion. Even when there have been no physical acts or threats, general talk regarding these subjects "around the water cooler" can become heated, emotional, and sometimes disruptive. What should an employer do in times like these to minimize disruptions, as well as to avoid any liabilities which may arise under employment discrimination laws? This article will address employer obligations and provide suggestions. Your policies. First and foremost, make certain your anti-discrimination, anti-harassment policies are written, posted, and properly communicated. If a company can demonstrate that it took steps to prevent and correct harassment, and the person complaining failed to take advantage of prevention and correction mechanisms, then in many cases the company has a successful defense to a harassment claim (whether sexual, racial, religious or based upon national origin). The written policy should not only specify all the types of discrimination and harassment which are prohibited, but it should also include a complaint procedure which will allow the employee at least two avenues of registering a complaint. Besides having the written policy, it is imperative that the policy be properly communicated to employees, that supervisors be properly trained, and that complaints be properly investigated and handled. Even if you have taken all of these steps, it never hurts to issue reminders of the company's strong stand against unlawful discrimination. Under the present circumstances, it might be appropriate to address the particular need to be alert for instances of harassment or intimidation against people of Middle Eastern descent or the Muslim faith. Some employees may automatically link Arab-American co-workers with the Muslim faith, without realizing that many Arab Americans are Christians or members of other faiths, and that many Muslims are not Arab Americans. Employees can be educated about the company's policies, as well as the dangers of making assumptions, all in the context of promoting the company's general directive that all co-workers, vendors, customers, etc., must be treated with dignity and respect. While patriotism runs high at this time, there is nothing un-patriotic about educating employees in these regards, nor enforcing these policies. Be prepared for complaints. Even before the events of September 11, complaints of discrimination against Muslims increased 15% in the year 2001. The EEOC defines "national origin" discrimination to include bias based upon not only a person's place of birth, but also his or her style of dress, physical features, speech, mannerisms, etc. If your company has not trained supervisors regarding handling harassment and discrimination complaints, it should. All of the benefits of a good harassment policy and procedure can be lost when a supervisor ignores or fails to recognize a complaint. Even experienced supervisors may not be aware of how broadly the categories of "religious" and "national origin" discrimination may be interpreted. In addition, because a very quick response to harassment complaints is vital, the person(s) responsible for investigating complaints should be properly trained, as well. Even a trained investigator may need additional tips on handling religious or national origin discrimination claims, especially where Arab or Muslim employees are involved. Religious accommodations. As we have seen in recent weeks, large groups of citizens have turned to prayer, including prayer in public and in groups, in these troubled times. Many employees have organized prayer groups. The employees may be followers of any faith. In fact, those practicing the Muslim religion are expected to set aside a number of times each day to devote to prayer. There has been an increase in requests for accommodations in the workplace to allow for prayer times, observances, dress code deviations, and the like. The requests have come from employees of many different faiths. In general, religious beliefs and observances must be accommodated unless the accommodation presents an undue hardship or is in some way unreasonable. Also, the employer is not required to permit the specific accommodation which has been requested, if it provides an alternate accommodation which eliminates the employee's conflict. Each employee's request for an accommodation must be analyzed for undue hardship, as there can be no blanket rules. In this regard, the employer needs to have its own, internal policy or procedure for handling requests for religious accommodation. For example, employers should require that requests be made in writing, on prescribed forms. If accommodations are made, they should be documented. If they are denied on account of undue hardship, there should be some written analysis or explanation. Moreover, employers must be careful to avoid granting any preferences to one religious group over another. On the one hand, some compassionate employers have "gone the extra mile" to accommodate some employees who have requested time off for religious observances, prayer, etc. However, the employer must keep in mind that each such decision has the effect of setting some sort of precedent. It will be difficult to justify allowing one group time off, or devotional meetings at the workplace, yet deny similar requests which may come in the future from another religious group. Conclusion. Employers must strike a balance between strong feelings of patriotism and recognition that diversity and dedication to civil rights are at the core of our nation's values. These suggestions can help achieve that delicate balance.
Independent Contractors? Beware the Pitfalls of Mis-classification
copyright Bob E. Lype, 2001
An independent contractor is not an employee... or is he? If it's a close question, there are risks to how you classify your independent contractors.
You've heard the old saying: if it walks like a duck, and quacks like a duck, and even looks like a duck, then chances are pretty good that it's a duck. In a sense, the same can be said of your employees - and maybe more importantly, your independent contractors. In various situations, employers frequently use independent contractors to perform part of their customary work. There are many reasons employers may utilize contract labor instead of their own employees, some of which are financial, such as to avoid having to pay fringe benefits, or workers' comp coverage, or the employer's share of tax withholdings, or overtime. These can be legitimate considerations. But because of the potential savings involved, sometimes employers slip into the trap of classifying their employees as independent contractors - and when they do this improperly, there can be serious financial consequences. For example, a number of grocery store chains in the northeast were recently sued by workers who were classified as independent contractors, but who claimed they should have been treated as employees. The stores contracted with a couple of "independent companies" which provided laborers to deliver groceries, or to stock shelves and bag groceries. The stores did not recognize the workers as employees. They were paid as little as 75 cents an hour for their work, and they were paid no overtime, even though they often worked as much as 84 hours in a week. A class action lawsuit was filed against the grocery store chains last year. But not all cases involve blatant examples of worker exploitation. Recently Microsoft agreed to pay $96.9 million to as many as 12,000 mis-classified employees. Microsoft classified the employees as independent contractors or "freelancers." The workers were hired on to perform specific projects, and some of them had been working on their projects for a number of years. Many workers were fully integrated into Microsoft's workforce, working alongside the company's regular employees, under the supervision of the same supervisors, and performing nearly identical functions of regular employees. Microsoft's troubles began (as they do for many employers) when the IRS performed an audit to determine whether the company was in compliance with federal tax laws. The IRS applied its tests for independent contractors, and it found that the workers in question were really employees - so Microsoft had to pay overdue taxes and issue retroactive W-2 forms. Then the employees, armed with the IRS's decision, filed a class action lawsuit demanding the same pay and benefits which the "employees" had received (medical benefits, pension and retirement benefits, etc.). Needless to say, mis-classification can have dire financial results for an employer. Often things will start out with something fairly routine and innocuous, such as a supposed "independent contractor" making a claim with the Department of Labor for unpaid overtime. Then suddenly the IRS becomes involved, or a whole group of independent contractors gets wind of the claims. Quickly things can spin out of control, from the employer's perspective. As noted above, independent contractor status can have a significant impact on an employer's tax obligations, and mis-classifying an employee as a contractor can lead to the employer owing significant back tax obligations. Therefore the IRS guidelines are critical. But in addition, the Department of Labor guidelines will determine whether a so-called contractor should have been paid overtime, or whether he should have received employment benefits. The Department of Labor's guidelines will also determine whether a so-called contractor is an employee for purposes of various employment discrimination laws, including whether the worker was an employee entitled to pursue a claim, or whether the worker should be counted in determining whether the employer has enough employees to trigger coverage. The state's "common law" will usually determine whether a so-called contractor is actually an employee entitled to workers' compensation coverage, or perhaps whether the employer can be held liable for the negligent acts of the worker. Unfortunately, there are no bright lines in deciding when an independent contractor becomes an employee. As discussed above, there are different "tests," factors and criteria utilized by different government agencies, and courts decide these situations on a case-by-case basis. This can lead to some confusion for employers, as well as inconsistent decisions under factually similar circumstances. The following factors are based upon a combination of the various "tests" described above. If your business utilizes independent contractors, you should periodically ask these questions about the workers. If the answers do not leave you with a clear sense that the worker is an independent contractor, it would be worthwhile to seek specific legal advice regarding these matters. C How much skill is required to perform the job? The work of contractors frequently involves a higher degree of skill. C Where is the work performed? In some cases, a contractor may be able to perform work either at the employer's business or away from it. C What is the duration of the relationship? If the worker has been on the job a long time, he looks less like a contractor. C How is he paid? Most often a contractor is paid to achieve a particular result, regardless of how much or how little time is spent. If he is paid by the hour, rather than "by the job," this could mitigate against a contractor relationship. C Who provides the tools necessary to perform the job? Frequently a true contractor will provide his own tools, and the more you provide the tools of the job, the less the worker looks like a contractor. C Who decides when and how long the worker works? Once again, a contractor is frequently retained to achieve a result, without specific guidance over exactly how and when the work is done. The more these things are left to the control of the employer, the more the worker looks like an employee. C Is the worker free to also perform the same tasks for another employer? If so, then he looks more like a contractor and less like an employee. The overriding factor is one of "control." The more the employer controls the details of how and when the work is performed, the more the worker looks like an employee, rather than a contractor. And it really doesn't matter what the parties call the relationship - a court or government agency will look to the realities of the situation. Employers should not be afraid to use independent contractors, when warranted. There are valid and legitimate reasons to do so. But employers should carefully consider the impact of their classifications.
Recordkeeping Tips and Suggestions
copyright Bob E. Lype, 2001
Good, systematic documentation can give employers an edge in disputes with employees. Besides, certain records are required by law. Keeping good employment records is extremely important. The byword of the employment lawyer to his employer client is to "document, document, document." But good recordkeeping should be systematic, not haphazard. Below are some general tips and suggestions you should keep in mind. Maintaining Personnel Files. The true purpose of a personnel file is to record all the information the employer needs to know about the events and circumstances of the employment relationship. If no records are kept, and if an employee sues the employer, then the employee may very well make up and distort the facts. Experience shows that juries tend to believe employees over employers, so this is a dangerous scenario. A good paper trail can be the difference between winning and losing a lawsuit. Inaccurate records can be just as damaging, or even more so. If an employer has to explain and correct inaccurate records, the employer's overall credibility will be hurt. Personnel records and documents should be retained for the entire tenure of the employment relationship, and then for at least a couple of years afterward - long enough to survive the statute of limitations for any claims. Experts generally suggest retention between two and ten years. What to Keep in the Personnel File. The following records and documents typically should be kept in the personnel file, if available: * employment applications and/or resumes * copies of I-9 forms * any employment contracts (including, if applicable, any non-compete or non- disclsoure agreements) * handbook acknowledgments and any acknowledgments signed for other policies * performance evaluations * all disciplinary matters, including supporting documentation * changes in job title, pay, address, etc. * records recognizing achievements * any other records critical of performance or behavior * correspondence and memoranda to and from the employ What to Keep Separately from the Personnel File. Besides the actual personnel file, medical and medical-related records must be kept in a separate, confidential file, with limited access. Other sensitive or confidential records may also be maintained separate from the personnel file, but also in a file distinct from medical records and information. Separate files should be kept for each employee containing: medical records health insurance records workers' comp records Family and Medical Leave Act records investigative consumer credit reports records of EEOC or other agency charges of discrimination, as well as the company¿s responses sexual harassment or other investigations records related to lawsuits and litigation involving the employee wage garnishments and other records showing the employee's financial problems Most employers keep payroll and related records, including records of hours worked and wages paid, separate from personnel records for administrative convenience. This could include W-4 and similar documents as well. Other General Tips. With respect to personnel documents and records, employers should also bear in mind some other general rules. First, do not segregate or "code" the records by sex, race, age, national origin, religious preference, etc. Even if you have some legitimate reason for doing so, this creates a strong impression of discrimination. Second, carefully consider the business need for collecting certain information and records, such as fingerprints, arrest records, financial information, etc. Unless you can articulate a strong business reason, the collection of such information in personnel records could end up supporting an employee's claim. And third, adopt and implement policies regarding access to employee records. For example, access to payroll records should be quite limited, and access to medical records is required to be limited. Moreover, it is wise to have a policy for allowing the employee (or former employee) to review his or her own records. Generally personnel records belong to the employer and there is no legal requirement that employees must be permitted to see their own records. However, on a practical level, it is probably wiser to have a policy allowing the employee limited access to review his or her personnel file. Such a policy should probably limit the materials reviewable, excluding personnel evaluations, internal memos, or other records which were obviously not intended to be seen by the employee. On the other hand, any disciplinary forms shown to, discussed with or signed by the employee should be reviewable. The policy should specify that the employee's review will only be permitted in the presence of a company representative. If documents are to be copied, a separate copy should be made, to be stapled to an acknowledgment of receipt signed by the employee. Documenting Misconduct and Poor Performance. As noted above, the byword of the employment lawyer is to "document, document, document." In particular, records reflecting misconduct, poor performance and disciplinary measures should be accurate, truthful and specific. What should be documented? Unjustified absenteeism and tardiness should be documented. Instances of deficient performance should be documented. Misconduct and violations of workplace rules should be documented, as well as disciplinary measures and discussions with the employee concerning these matters. How should these items be documented? Always bear in mind that the records you are creating may be reviewed by someone who knows nothing about the situation (such as a judge or juror), perhaps years from now. The records should enable that person to understand what was happening. The documents should be dated contemporaneously with the event and their preparation. Eyewitnesses should be named in the record. If work rule violations are involved, they should be specified. An honest description of the incident or event should be stated, without embellishment. The record should be signed by the person preparing it. If it is discussed with the employee, the employee should be asked to sign it, and if he or she refuses, that fact should be noted. Conclusion. Consistently following these general tips regarding documentation and personnel files will give you a business edge and, if needed, a legal edge.
EMPLOYER LIABILITY FOR EMPLOYEE ACTS
copyright Bob E. Lype, 2000
When is an employer liable to a third party because of something an employee has done (or failed to do)? Two particular theories of liability are most commonly encountered. One theory imposes liability on the employer "vicariously" on account of the employee's acts or omissions, while the other theory imposes liability directly upon the employer for its own acts and omissions. Respondeat Superior. When an employee commits an act "within the course and scope of employment" which results in injury to some third party, the employer is generally liable to the third party under the doctrine of "respondeat superior." This legal principle is based on the reasoning that an employee on his employer's business is an agent of the employer, so the acts and omissions of the employee are actually the acts and omissions of the employer. The employer is "vicariously" liable. So for example, when your employee is making a delivery and runs a red light, causing an accident resulting in property damage and/or injuries, to the extent your employee was at fault, you will likely be held liable. Of course, hopefully you have adequate insurance coverage. Sometimes it is less clear when an employee is acting "within the course and scope of employment." For example, suppose the delivery driver had his accident when he was making a little detour to take care of a personal errand. Or suppose a managerial employee clearly violates company policy in dealing with a customer or another employee. In either case can the employee have been acting "within the course and scope of employment?" Unfortunately, the answers are not always clear, and these situations are usually decided on a case-by-case basis. Negligent hiring or supervision. But instead of being held vicariously liable for the employee's acts, the employer could face liability for its own acts and omissions, and in particular its own negligence. If an employer hires an employee with a criminal record for sexual assaults, and if the employer then sends the employee to make home deliveries, then the employer may not be acting prudently. If the employee goes into a home to make a delivery and commits a sexual assault, the employer may be liable. This is true whether the employer actually knew about the employee's past offenses (in which case the employer surely acted foolishly), or if the employer was unaware of the criminal past, but did not act reasonably in looking into the employee's background before hiring him. This principal is not limited to criminal offenses. Suppose the delivery driver who ran the red light and caused the accident had a long history of driving accidents. Once again, the question becomes whether the employer acted reasonably and prudently in hiring the employee for a driving position. Were appropriate inquiries made? The question is not what the employee did, but whether the employer was negligent in placing him in that position. Of course, employers walk a thin line when checking into the references and background of a prospective employee. Conclusion. The principles of "respondeat superior" and negligent hiring are the most common bases of employer liability for employee acts and omissions. The common sense advice is to have good liability insurance, to know your employees well, and to place them in jobs for which they are appropriately suited. |
