Monthly Archives: May 2009

Discrimination Filings Increase Dramatically

Discrimination, Documentation

You might think that by now all employers are careful and correct in their hiring and firing decisions, leading to a decrease in discrimination suits filed by employees and former employees, particularly since the Civil Rights Act has been around for 45 years. You would be wrong.

In 2007, the Equal Employment Opportunity Commission (“EEOC”) saw a 9% increase in the filing of discrimination claims based on race, gender, age, disability, etc. If that weren’t dramatic enough, in fiscal year 2008, the EEOC saw a 15.2% increase over 2007. And that was before the economy hit rock bottom and the  nationwide unemployment rate rose to its current rate of 8.5%. I think it is a safe bet to expect the charges filed with the EEOC in 2009 to increase even more.

What should these statistics say to you as a business owner or manager? They should tell you that you cannot afford to make mistakes in your employee hiring, compensation, evaluation, discipline and termination practices that could be interpreted as discriminatory. Don’t assume that you know what you are doing. Get an experienced HR expert or employment lawyer to help you review your policies and practices.

What should you be reviewing to assure that you have reduced your exposure to an employee lawsuit:

  • Documentation: I can’t say it enough in this blog–if it isn’t written down, it didn’t happen as far as the EEOC or a jury is concerned. Do you discriminate on the basis of race, religion, disability, national origin, age, etc.? You do unless you have a written policy stating that you don’t and you have documents supporting each employment decision you have made and showing that it was made for nondiscriminatory reasons such as performance deficiencies.
  • Written Policies: I still get questions about whether you need to have an extensive written policy manual that you provide to your employees. My final answer: YES, you need written policies! Lots of them! Every governmental agency, whether it is the Texas Workforce Commission investigating an unemployment claim, OSHA investigating a workplace injury or the EEOC investigating a discrimination charge, will first ask for your relevant written policies. Without these, the odds that the governmental agency will make a finding beneficial to your business are pretty close to zero.
  • Layoffs: The decisions you make about which employees to lay off in poor economic times cannot be explained simply by the financial well-being of the business. You won’t be questioned about why you had to lay off 20 employees, you’ll be questioned about why you picked the specific 20 that you picked. If you let your poor performers go, you better have documentation supporting the poor performance of each member of that group, as well as documents showing the outstanding performance of those that you retained. Layoff time is not the time to cherry pick the employees with whom you have the most in common or feel most comfortable, because it is almost a given that you will be explaining your choices to a governmental investigator or a jury at a later time.
  • Retaliatory actions: If someone cooperates with a governmental investigation or files a discrimination claim, you should not fire that employee any time soon thereafter unless you have rock solid documentation of a serious disciplinary violation that employee committed after the claim or the cooperation. Why? Because every claim filed with the EEOC is subject to a retaliation claim. Frequently, an employee who says she was discriminated against can be proved wrong, but if you fired her soon after she made her complaint, you will probably will lose the retaliation claim even as you win the discrimination suit. This would be a very hollow and expensive discrimination “victory”.

Contracts with My Teenager

Documentation

It is very hard to leave a legal job at the end of the day and not take it home with you. I watch TV and guffaw over the ridiculous courtroom scenes that never would occur in real life. I read and reread the fine print on every piece of mail (particularly from credit card companies!). I won’t let my husband sign his teaching contract for the next year without my approval.

But the one area where it has really paid off to be an attorney in my family life is in the area of contracts with my teenage son, Hart. A few years ago when he received his first cell phone, I considered all the horror stories I had heard about runaway bills due to teen texting or replacement phone costs due to teenage negligence. I’ve always been the kind of parent who believes in spelling out my expectations ahead of time and then encouraging my son to meet them. This has worked for grades, for manners and I figured it should work for cell phone ownership also.

So I drafted a simple, plain English agreement for Hart to sign when he received the cell phone. I let him know specifically how many minutes and text messages he could send per month. I explained the rules about free nights and weekends and what time those free periods started and ended under our plan. I let him know the cost of a replacement phone. I told him how much I would charge him for any excess minutes or texts. I emphasized how he would lose his phone privileges if he were to ever use it during class time. And I required him to get permission from the subject of any picture he took or conversation he recorded so as not to invade any other person’s privacy. If I were writing that contract today, I would also include a prohibition of sending or possessing sexually explicit photos with a cell phone, a practice known as “sexting” that can lead to a criminal conviction and sex offender status that could haunt a teen for the rest of his or her life.

In the three and a half years that Hart has had a cell phone, he has paid me $1.10 in overcharges. He has never lost or broken his phone, never had it taken away at school and seems to use it appropriately to keep me informed of his whereabouts. Granted, being a boy, he has little interest in sending thousands of texts in a month or spending every minute on the phone with friends. But I really think that spelling out the rules and the consequences of breaking those rules has helped him be more responsible with the cell phone.

Fast forward to last week, when Hart turned 16 years old. He obtained his driver’s license on his birthday after ten months of driving with a learner’s permit. We gave him my ten-year-old Toyota Avalon to use as his car from now on. Time for a driving contract.

Obviously, the consequences of irresponsibility with a car are much greater than with a cell phone, so the driving contract is longer and more detailed than the one page cell phone agreement. But again, I used plain English to convey important rules like wearing a seat belt, never using a cell phone while driving, and at least while he is in high school, getting permission before he drives the car out of Potter or Randall counties. Violating those kinds of rules results in a $100 fine (you gotta make it painful).

The most serious consequence is reserved for driving while impaired by alcohol or drugs. There is no penalty if he calls us to come get him and doesn’t get in a car. However, the penalty for driving while impaired is a loss of driving privileges for three months and no chauffeuring by a parent (catch a ride with friends, ride a bike or hoof it for three months). A second violation of that rule results in the car being sold and again, no chauffeuring by parents during the duration of high school.

The driving contract also sets out who pays for any traffic ticket he receives (he does), gas he uses (he does), getting oil changes and regular maintenance on his car (he does), insurance deductibles he incurs (he does) and increases in insurance premiums he causes (he does). I hope this will short-circuit any arguments that may arise over the significant costs of car ownership and irresponsible driving.

Let me say that I don’t think you can solve all teen problems with a contract. There was a lot of parenting that went on before these contracts. Hart is an excellent student, a polite, witty and responsible kid. While his parents are divorced, we have worked hard to achieve a friendly and cooperative relationship that allows us to consult with each other and enforce similar rules at both houses. So we have had few problems with Hart and don’t really anticipate any big issues with his driving.

But why wait until a problem arises to anticipate how to solve it, particularly if you could avoid the problem altogether? That’s what I spent three years in law school learning to do: prevent difficult legal problems or resolve them as painlessly as possible if they can’t be prevented. When it comes to my only son, I am definitely in favor of trying to prevent problems before they arise.

I heard the other day of a parent who required her daughter to sign a college contract, which reminded the girl about the expectations for her GPA, her financial contribution and her behavior if her parents were going to support her for four more years and pay for tuition, room and board and expenses. Looks like Hart has another contract in his future . . . !

Smoking Policy Suggestions

Personnel Policies

Since 1966, we have been warned of the dangers of smoking. Here is a brief history of the Surgeon General’s warnings on cigarette packages:

  • Caution: Cigarette Smoking May be Hazardous to Your Health (1966-1970)
  • Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health (1970-1985)
  • SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy. (1985-)
  • SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health. (1985-)

And yet, many businesses still wrestle with whether the company should have a nonsmoking policy for its employees and visitors. Legally, a company in Texas is free to make any policy it wants regarding smoking on the job or in its facilities.

Should your company have an anti-smoking policy? If you are paying all or part of your employees’ health insurance premiums, you should have a smoke-free workplace policy for economic reasons, if no other reason. A federal study based in Pueblo, Colorado, demonstrated that the rate of hospital admissions for heart attack declined 41 percent in the 18 months after a city smoke-free ordinance took effect compared to the 18 months prior to the ordinance. According to the Centers for Disease Control, smoke-free laws likely reduce heart attack hospitalizations both by reducing second-hand smoke exposure and by reducing smoking. Just think what that kind of reduction could do to your group health insurance premiums!

Since Amarillo and most Texas Panhandle towns have no city ordinances banning smoking, employers have to make their own decisions about what to do. Few employers allow employees to freely smoke in the building. Many Texas employers choose to create areas outside of the building and away from the entrances in which smoking is allowed. Others take it farther and ban all smoking on the premises. Baptist St. Anthony’s hospital in Amarillo created a brief uproar last year when it expanded its smoke-free campus policy to a blanket refusal to hire smokers at all. This is the most stringent smoking policy of which I am aware.

How do you institute a smoking policy at your company? Here’s a good lawyerly response: in writing, of course. Add a policy like this one from the Texas Workforce Commission’s publication, Especially for Texas Employers, to your employee handbook and post it in break rooms and on the employee bulletin board or intranet:

The Company maintains a smoke- and tobacco-free office. No smoking or other use of tobacco products (including, but not limited to, cigarettes, pipes, cigars, snuff, or chewing tobacco) is permitted in any part of the building or in vehicles owned, leased, or rented by the Company. Employees may smoke outside in designated areas during breaks. When smoking or otherwise using tobacco or similar products outside, do not leave cigarette butts or other traces of litter or tobacco use on the ground or anywhere else. No additional breaks beyond those allowed under the Company’s break policy may be taken for the purpose of using tobacco or similar products. Dispose of any litter properly in the receptacles provided for that purpose.

Or if you want a more restrictive policy that bans tobacco everywhere on your premises, here is the TWC’s suggestion:

The Company maintains a smoke- and tobacco-free office. No smoking or other use of tobacco or similar products (including, but not limited to, cigarettes, pipes, cigars, snuff, or chewing tobacco) is permitted at any point during a workday, while on company business, while in transit between work locations or assignments, while at client locations, in any part of a company building or within “x” feet of such buildings, or anywhere on or in company parking areas. There are no designated smoking areas inside or on Company premises, nor does the Company allow smoking breaks during the workday, i.e., no additional breaks beyond those allowed under the Company’s break policy may be taken for the purpose of using tobacco or similar products. If returning from a meal break during which you have used tobacco or similar products, do not leave cigarette butts or other traces of litter or tobacco use on the ground or anywhere else. Dispose of any litter properly in the receptacles provided for that purpose.