Legal Issues in the Workplace... Are You Prepared?

Harassment

Harassment occurs when a person is subjected to unwelcome behaviors that are so severe or pervasive that they interfere with their ability to do their job or create hostile working conditions. Courts have said harassment is another type of discrimination that is also prohibited by equal employment laws.

Harassment can be verbal - like calling someone a derogatory nickname or telling an inappropriate joke. It can be physical - like touching someone or blocking someone’s path in the hallway because of their membership in a protected group – or hazing and pranking employees, as in this case. It can be visual - like offensive pictures or posters. It can also happen electronically – through text messages, emails, and social media.

Remember, unlawful harassment can be based on any protected class status.

Recruiting & Hiring

The variety of state, federal, and local laws we’ve been discussing impact how you recruit, hire, and promote people. And the best way to ensure that everything is on the up and up is to make sure that every decision is based on the person's ability to do the job - not their personal life, national origin or even religious beliefs.

Make sure that everything relating to the hiring process - from the job posting to the background check and offer - is job-related, and fairly applied to every candidate.

Handling Problem Employees

Mistakes in managing employee performance can cause real headaches - for everybody. A performance review really shouldn't contain any surprises. It should confirm and reinforce the feedback you've given an employee throughout the review period.

That's why you should continually document that feedback, including what the employee did well, what the employee did not do so well, and the actions you took - so you can refer to them in the performance review. It makes completing those performance reviews much easier and less likely to be based on what happened in the last month or two. Also, be sure to use progressive discipline.

The Americans with Disabilities Act (ADA)

Both the Rehabilitation Act of 1973 - which applies to Federal employers and federal government contractors - and The Americans with Disabilities Act of 1990 - which applies to private employers - promote and expand employment opportunities for millions of people who have a mental or physical disability.

Both laws now provide essentially the same protections. They prohibit discrimination against individuals with physical or mental disabilities. They require employers to make reasonable accommodations for qualified disabled applicants so they can participate in the recruiting process. Reasonable accommodations are also required for qualified employees so they can perform the essential functions of their job. Reasonable accommodations are also required so that qualified employees can take part in all terms and conditions of employment. These laws also protect against retaliation.

The Family and Medical Leave Act (FMLA)

One of the things you hear more and more about these days is balance.  You know, balancing your work and the rest of your life. And a law with the purpose of helping employees balance their work and their life is the Family and Medical Leave Act (FMLA). Private sector employers with 50 or more employees, and all schools and government employers are covered by the FMLA.

Employees are “eligible” for FMLA leave if they work at a worksite that has 50 or more employees within a 75-mile radius of it, they have worked for the company for at least 1 year, and they have worked at least 1,250 hours in the preceding 12-month period. Employees who work remotely, or who regularly change worksites, use the worksite they report to for this last consideration.

If an employee meets all three of these “eligibility” criteria, then they may request FMLA time off.

Retaliation

Under federal, as well as many state and local employment laws, retaliation is defined as any adverse action taken because the employee engaged in an activity protected by law that would either dissuade a reasonable person from engaging in that protected activity or punish them for having done so.

Examples of protected activities in the workplace include things like simply talking to your manager about something that you think could be illegal, unethical, or unsafe. It's a protected activity to report or file a complaint... or to refuse to participate in something that is illegal, unethical, or unsafe. In addition, cooperating with an investigation into a complaint... or being a witness in a court case are also protected activities.

Besides having engaged in a protected activity, in order to be considered a target of retaliation, you also have to suffer what is known as an adverse action. For example, being fired can be considered an adverse action. Or being harassed, threatened, or even shunned by your manager or your co-workers can also be considered an adverse action.

To put it all together...when an employee suffers an adverse action after they engaged in a protected activity, and when there is a causal connection or link between the protected activity and the adverse action - that's considered illegal retaliation in the workplace.