RP Consultants ~ Business Consultants  Specializing in Labor and Employment Law

Tip Toe Through The Employment-Practices Minefield         Personnelly Speaking by Robert Palow, Contributing Editor What's your greatest asset and your greatest liability? Employees. Today, we're in the midst of escalating employment practices claims. Scarcely a week goes by that you don't learn of an allegation made, a grievance filed, or a class-action suit going to court. It does no good to lament the "good old days" when employees could be (and often were) fired at the employers' discretion. The doctrine of "employment at will" is being eroded. Many employers now consider employment-practices claims to be a cost of doing business and are taking steps accordingly. Most of today's claims are made by former employees and are filed for a variety of reasons. Wrongful-termination cases often result from corporate downsizing, where older employees end up losing their jobs and claiming age discrimination (protection under the Age Discrimination in Employment Act begins at age 40, with no upward cap). Former employees may contend that their rights under the Family and Medical Leave Act or Americans with Disabilities Act (ADA) were not addressed in the workplace, and the "intolerable" situation forced their resignation. Claims by current employees may also cite these reasons. Or, current employees may claim they have been passed over for promotion based on race, color, religion, gender, or national-origin discrimination. And, especially lately, there's sexual harassment claims to consider. Claims are not always filed by past or current employees, however. Indeed, prospective employees may bring suit. A job application may contain illegal questions (e.g., questions designed to ferret out a person's age) or even questions suggesting a bias against a protected-class worker For instance, questions concerning child-care arrangements could be viewed as putting women at a disadvantage. The job interview itself can be a minefield of ticking ADA bombs. An interviewer cannot ask disability-related questions not even those that might seem to impact job performance, such as inquiries into drug addiction or sick days taken. If the applicant has an obvious disability, however, or has voluntarily disclosed a hidden disability, the employer can reasonably discuss the need for accommodation. But the point at which such a discussion crosses the line is not clear The ADA is very complex, and case law is still in the development stage. Generally, employment-practices claims are undertaken for one of two reasons; emotional harm (i.e., an employee's feeling of having been "unjustly abused") or the potential dollar award. Fortunately, there are some risk-management strategies that shop owners and managers can implement. Employment-practices claims can he very costly, not only in dollars, but in hours lost reviewing files, interviewing witnesses, etc. It's a good idea to perform an audit of human-resource practices and procedures already in place. This can be accomplished either by an internal or external agent who specializes in employment practices and should cover applications, interviewing practices, employee handbooks, and complaint mechanisms. These audits can uncover potential problem areas and recommenced corrective actions. However, here's a word of caution: The results of such an audit are not necessarily immune from discovery in the event of a lawsuit. An often-overlooked method of reviewing current practices is through regular employee surveys. Good employees tell their bosses what they want to hear; great employees tell their bosses what they need to know. Employees who feel their concerns are heard and are being acted upon are more likely to use internal complaint mechanisms to resolve disputes. Need-less to say, such surveys must guarantee anonymity. Vertical (i.e., both up and down) communication policies must be in place. Consider an open-door policy, where employees can voice concerns to any manager. Employee handbooks should detail organizational policies on hiring, discipline, and firing, and they should clearly state that discrimination in the workplace will not be tolerated. The handbooks should also contain policies concerning sexual harassment, the ADA, and leave of absence. Any policy must be in compliance with all applicable local, state, and federal laws. Even with what appears to be the best internal procedures in place, a dispute may still end up in court. However, you can avoid litigation through binding arbitration or mediation. Arbitration proceedings are confidential (unlike trial proceedings) and can save in both adverse publicity and high-dollar jury awards. Mediation, on the other hand, although confidential, does not guarantee an outcome, since the mediator's function is to attempt to negotiate a settlement between the parties, not render a decision. Employment practices have become a minefield that can cripple or destroy your company. Shop owners and managers must take a proactive approach within their employment practices to avoid lawsuits. And, when an employer/employee dispute arises, you must have a turnkey solution in place that will resolve the dispute quickly and affordably. About the author Robert Palow is president of RP Consultants, a Placentia, CA based company that specializes in labor and employment practices. He has more than 30 years of management and legal experience in the human resource field. 126/June 1998 Cutting Tool Engineering Copyright © 1998 RP Consultants All rights reserved [ Home | Company Info | Published Articles | Services | Feedback ]