Legal Issues in the Workplace... Are You Prepared?
Your managers & supervisors are your front-line legal agents.
Most managers and supervisors don’t understand that they are legally considered “agents” of their employers. In the eyes of the law, what a manager or supervisor does, the employer does. And what they don’t do, the employer failed to do.
So… managers can create risk for their employers. Not only that, under some state laws and a few federal employment laws, managers and supervisors can be held individually and personally responsible for their acts or omissions, too. So, they can simultaneously create liability for their employers and themselves.
That provides strong motivation for employers to educate their managers and for managers to pay close attention!
What are some of the legal issues your managers could face?
Employment laws are complex compromises of different viewpoints. It can be pretty easy to make a well-intentioned decision that can land you in the hot seat and cost your organization a lot of money. There are no guarantees. But there are a few things you can do to lower the odds of ending up in litigation. You have to know the law before you can follow it. Here are just a few of the legal topics covered in It's the Law™: The Legal Side of Management.
Federal Equal Employment Laws
Modern day federal equal employment laws began with the Civil Rights Act of 1964 and amendments to it and interpretations by the courts. Title VII of that act applies to private sector employers with 15 or more employees. It prohibits discrimination based on race, color, religion, national origin, and sex. Over the years, it's been amended a number of times and expanded by the courts, and as we’ll see, to protect against discrimination based on pregnancy, sexual orientation, and gender identity.
The Equal Employment Opportunity Act of 1972 extended Title VII coverage to state and local government agencies, as well as public and private educational institutions.
The Pregnancy Discrimination Act of 1978 amended Title VII to prohibit discrimination based on pregnancy, childbirth, and related medical conditions.
The Civil Rights Act of 1991 amended Title VII to allow for jury trials and punitive damages in discrimination cases. It also put caps on compensatory and punitive damages based on the size of the employer.
The Lilly Ledbetter Fair Pay Act of 2009 amended Title VII and two other federal non-discrimination laws to expand an employee’s ability to recover pay lost due to wage discrimination.
And the 2020 US Supreme Court’s Bostock decision interpreted Title VII’s “sex” discrimination prohibition to include Sexual Orientation and Gender Identity discrimination.
The Americans with Disabilities Act of 1990 and the 1973 Rehabilitation Act, protect persons with mental and physical disabilities from discrimination in the workplace.
The 1967 Age Discrimination in Employment Act, protects persons who are 40 years old and older, from employment discrimination based on their age.
The 2008 Genetic Information Non-Discrimination Act protects everyone’s genetic information and prohibits employers from asking for it.
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.
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.
Your team has a responsibility to understand employment law!
Organizations that fail to understand employment laws face the potential for millions of dollars in attorneys’ fees to defend themselves, and damages awarded in lawsuits where the organization loses.
Ready to Implement Roadmaps & Programs
Sollah has the tools and expertise to help you quickly implement legal and compliance training within your workplace. When it comes to employment law, give your management team the information and knowledge they need to stay out of court!
Tackling difficult conversations is hard for just about everyone… especially when it comes to the trickier workplace issues that seem to pop up when you least expect it. Let's T.A.L.K.™ Navigating Difficult Workplace Discussions is designed to assist managers and supervisors in dealing with difficult workplace situations. The program provides several difficult scenarios that managers may face when dealing with employees and each scenario utilizes an easy-to- use, four-step process for working through the employee situation.
ENOUGH!™ is a completely new approach to sexual harassment training. This video program is strategically designed in two-parts to deeply engage each learner, creating empathy – with a realistic view of workplace harassment and the fallout associated with a non-compliant culture. ENOUGH! uses a dramatic story line and character interviews to help participants become more aware of the consequences due to the issues surrounding sexual harassment and to help them identify what they should do if they experience or witness sexual harassment.
Managers today are expected to do more than just supervise daily work activity. They are also legally obligated to understand and enforce company employment policies and procedures to reduce the chance of discrimination and lawsuits. It's the Law™ uses a variety of workplace scenarios to illustrate that taking critical precautions and having a clear understanding of the law will minimize employment discrimination and maximize equal employment opportunity.
Organizations want productive and engaged employees who contribute to the bottom line... but just one aggressive employee can ruin it all. There are real consequences associated with crossing the line at work and more than money is what’s at stake for organizations of all kinds. The effects of bullying, abusive conduct and especially harassment can damage an organization’s morale, brand and leave targets unproductive and fearful.