Category Archives: Discrimination

Update Your Job Descriptions

Discrimination

When the new Americans with Disability Act (“ADA”) amendments go into effect on January 1, 2009, millions more disabled Americans (or those perceived as disabled) are expected to be protected by the law than have been helped since the 1991 law was enacted. Click here for more information about these amendments. This of course means that your odds as an employer of being sued for disability discrimination will increase.

As a business owner or manager, if you aren’t completely comfortable about how to apply the ADA in your workplace, now is the time to prepare before the January 1 deadline. There are many ways to prepare, including training all of your supervisors on working with and accommodating disabled employees and developing internal procedures for dealing with requests for accommodation. You should review the company interviewing procedures to assure yourself that no one is asking about an applicant’s prior worker’s compensation history or other loaded questions. You should also be certain that medical exams are being given to all persons to whom you offer jobs (or to none), so that it is clear you are not trying to weed out disabled applicants.

One important preparation that you should undertake today and complete by the end of 2008 is a review of all of your job descriptions. I can hear every manager reading that last sentence expel a heavy sigh. I know that writing job descriptions is a pain, but it is the single most important piece of evidence during a disability discrimination case. Continue reading Update Your Job Descriptions →

What Every Supervisor Must Know

Discrimination, Management, Training,

Most employee lawsuits are caused by the actions of a first-line supervisor. In other words, that woman that you just promoted from cashier to assistant manager is the one most likely to get your company sued by a disgruntled employee or former employee. Why? Because the first-line supervisor has the most day-to-day contact with your employees. And during that contact, the first-line supervisor may make racist comments, forget to accommodate the disabled, show favoritism to those of his/her own religion, or make an employee work “off the clock”.

Remember that your lowest-ranking supervisor still represents “the company” and can make your business liable for discrimination, retaliation, compensation errors and other legal violations.

So from a preventative viewpoint, the selection and training of a new supervisor involves much more than just taking your hardest-working employees and giving them a raise and the keys to the storeroom.  Here are some of the things to consider when promoting an employee to a supervisory role: Continue reading What Every Supervisor Must Know →

Risks of Going to Trial

Discrimination, Litigation

You’ve heard it before. Ninety-five percent of lawsuits settle before they are tried. Knowing this, doesn’t it make sense to study settlement and trial outcomes to see if settlement is usually a good idea? Some new research did just that and found that plaintiffs in lawsuits, such as the employee in a discrimination claim, who turn down a settlement offer often do much worse at trial than if they had taken amount the defendant was offering.

A new study in the September 2008 issue of the Journal of Empirical Legal Studies found that 61% of plaintiffs who gambled on going to trial were disappointed with the outcome because they received a smaller award than the amount they had been offered to settle before trial. The average settlement offer was $48,700 and the average award at trial was only $43,000 in the more than 2000 cases decided in California between 2002 and 2005 that were included in the research.

It was an error for defendants to go to trial instead of paying a settlement demand in 24% of the cases reviewed. Unfortunately for those defendants that chose to go to trial, the price of that mistake was high. In those cases, the plaintiff’s average settlement demand was $770,900 but the average verdict was $1.9 million, meaning that $1.1 million could have been saved in those cases if the defendant had settled. Don’t forget that these verdicts occurred in California, so they don’t reflect conservative Panhandle jury awards, but the percentages are worth thinking about if your company is defending a lawsuit.

The study also looked specifically at employment law cases. Continue reading Risks of Going to Trial →

Test Your Employment Law Knowledge

Compensation, Discrimination, Personnel Policies,

Just for fun today (if you are like me and have no life!), test your knowledge of federal and Texas employment law. If you manage people in the workplace in Texas, this is the kind of information you should know off the top of your head. Give yourself about 10 minutes to answer these questions, then click on the answer page and see how you did.

  1. What is “employment at will” and why is it important?
  2. True or false: A “contract employee” is someone who works full-time for you but for whom you do not have to pay payroll taxes nor report as an employee.
  3. True of false: To prevent violence in the workplace, you should check your applicant’s criminal arrest record.
  4. Age discrimination claims can be filed by an employee who is ____ years of age or older.
  5. True or false: if an applicant is mentally ill, you don’t have to hire that applicant.
  6. At what age can you make an employee retire?
  7. True or false: The company can be liable if a customer sexually harasses its employee.
  8. How many people does a company have to employ before the Family and Medical Leave Act applies to that company? ______ employees.
  9. What is required to legally deduct anything other than payroll taxes from an employee’s paycheck?
  10. You can hold an employee’s final paycheck until he turns in : (check all that apply)   ____ uniforms; _____ company credit cards; _____ tools and other company equipment; ____ keys to company facilities; _____ all money owed to the company for salary advances, benefits, etc.
  11. How many days do you have to get an employee’s final paycheck to him in Texas if he has been fired?  ____ days.
  12. What is the current minimum wage? $_____ per hour. What will the minimum wage be on July 24, 2009? $ _____ per hour.
  13. True or false: An employer must prove that the employee committed “misconduct” if the employer wants to avoid an award of unemployment benefits to a fired employee.
  14. True or false: An employee who was fired for poor performance (just couldn’t do the job correctly) has committed “misconduct” so that she won’t receive unemployment benefits.
  15. How many employees do you have to have before you are liable under the federal and state discrimination laws, such as the laws prohibiting sexual harassment or disability discrimination? Continue reading Test Your Employment Law Knowledge →

Employers Vulnerable under New ADA Amendments

Discrimination

President Bush signed amendments to the Americans with Disabilities Act (“ADA”) into law on September 25, 2008, that will make it easier for disabled employees to win lawsuits against their employers.The law goes into effect January 1, 2009.

The amendments specifically prohibit courts from considering “mitigating measures” in determining whether an employee can sue under the ADA. Since 1999, upon direction of the United States Supreme Court, lower courts have looked at aids like insulin for diabetics or prosthetics for amputees to determine whether an employee is actually disabled and therefore can sue under the ADA. If medication or equipment eliminated the effects of the disability, then the employee couldn’t take advantage of the ADA to sue his/her employer.

For example, nearsighted pilots who were barred from flying commercially tried to sue United Airlines for disability discrimination, but the Supreme Court said that corrective lenses meant that they were not disabled. They just didn’t meet the physical criteria required by United Airlines. Granted, this type of circular reasoning made for some strange legal opinions. But the end result was that many employers had less to fear about the exorbitant costs of defending an ADA suit.

Those relatively carefree days are over for businesses. With the new ADA amendments, Congress has specifically directed the courts to interpret the ADA broadly (i.e., in the employee’s favor). Even if an employee is not actually disabled, but only perceived as impaired, Congress and the present Administration mandated that the employee could take advantage of the ADA to sue his/her employer.

What does this mean from a practical standpoint? Continue reading Employers Vulnerable under New ADA Amendments →

Avoiding Ageism Claims, Part 3

Discrimination, Documentation, Termination,

As I have pointed out in the earlier posts in this series on age discrimination, the demographics of the available workforce are soon going to require you as an employer to recruit and retain older workers. With historically low unemployment rates in the Texas Panhandle, that time may already be upon us.

Many business owners and managers that I work with still seem to believe that at age 65, an employee becomes more of a liability than an asset. I recognize that group health insurance premium rates play a big part in that perception, but there is also an assumption that an older employee’s cognitive and technical skills diminish at that point. That may be true for a few employees, but many senior citizens do not exhibit those losses and remain solid performers. They often demonstrate much more loyalty, commitment, experience and emotional maturity than their younger coworkers.

However, there will come a time when you have had enough of an older worker who is not performing up to your expectations. Then you have to consider terminating that worker’s employment. How do you do this without guaranteeing an age discrimination lawsuit? VERY CAREFULLY! Here are a few tips on firing your oldest workers without your actions backfiring upon you: Continue reading Avoiding Ageism Claims, Part 3 →

Avoiding Ageism Claims, Part 2

Discrimination,

In the previous blog in this series on age discrimination, I pointed out the necessity of employers recruiting and retaining older workers in the future. By 2020, workers over 55 will make up almost one-quarter of the workforce. If you like to hire only young, fresh, cool (and cheap) workers, in the next decade you will find that you don’t have enough people to fill all the jobs in your workplace.

But as you are employing older workers, you have to be careful that you don’t get tripped up by claims of age discrimination. I always tell the corporate and civic groups to whom I am speaking that age discrimination cases scare me more than any other kind of case.

Why? Because the fear of growing old and being considered useless is universal. Every jury member can empathize with the older plaintiff who claims that he was retired against his will to make way for some young “whippersnapper.” Also age discrimination cases are expensive to fight and expensive to lose. According to Jury Verdict Research, age discrimination cases yield the highest dollar amount verdicts of all employment cases.

So every employer should be aware of ways in which you can avoid ageism claims, both now during an economic downturn (when the number or discrimination lawsuits goes up) and as the older worker population grows. First, consider your hiring practices and resist the following mistakes: Continue reading Avoiding Ageism Claims, Part 2 →

Avoiding Ageism Claims, Part 1

Discrimination,

Ten years from now, one quarter of the American workforce will be over 55. Because retiring Baby Boomers will leave a critical shortage of qualified workers, no longer will employers have the luxury of employing “new blood” and “fresh faces” (i.e. young, cheap labor) as employees. The visage of the American workforce will be a little grayer and a little more wrinkled.

Employers will simply have to find a way to satisfy and keep older workers in order to have enough employees to keep American businesses strong. And yet, many employers still mistakenly believe that people should automatically retire at 65 or that older workers will naturally lose their faculties and need to be “put out to pasture” like aging racehorses. Take it from a Baby Boomer: whether realistic or not, we believe that we still have plenty of turns around the track left in us.

One aspect of the graying of the workforce will inevitably be that Boomers, never shy about asserting their rights, are going to be suing their employers who try to force them out of the workforce. Two-thirds of the Boomer respondents in a 2002 AARP survey believed that age discrimination exists, that older workers are always the first to go when there are workforce cuts, and that age 49, when many workers peak in their productivity, is also the average age when workers begin to face age discrimination in their jobs.

So as a business owner or manager, you have to start deciding now how you are going to attract and retain valuable older workers and how you are going to avoid age discrimination claims when you have to get rid of those employees who are no longer able to perform well. I’ll give you some guidance in this series on ageism claims, so please check back at least twice per week for more information on this topic.

Here’s the first tip: Continue reading Avoiding Ageism Claims, Part 1 →

Layoffs Can Lead to Lawsuits

Discrimination, Termination

The Department of Labor released new unemployment figures today. Nationwide, the unemployment rate is 5.7%. That is the highest it has been in 4 years. The DOL found that the manufacturing, construction and retail industries were seeing lots of layoffs, while education and health care are still growth industries.

In the Panhandle of Texas, the unemployment rate is not nearly as high. The last figures I found are for June 2008, and show that the unemployment rate is only 3.7% here. But that doesn’t mean that every industry is solid in our area. Several of my clients have recently laid off a few employees because of increasing expenses, mainly for transportation.

If you have to lay off employees, it is important to know how to do so without discriminating against any of the employees who lose their jobs. Just because you have an economic reason for your actions doesn’t mean that your business is immune from facing a lawsuit by one or more of the employees you laid off. In fact, in hard times, an employee who has been laid off may have difficulty getting reemployed and then decide he/she has little to lose by suing you. So here are some tips to protect your business during a layoff: Continue reading Layoffs Can Lead to Lawsuits →

Required Employee Posters

Discrimination, Employee Rights, Forms and Policies,

For this week’s Friday Form, I thought I would provide you with the links for many of the employee rights notices that you as an employer should have posted in your workplace.

Most of the necessary posters are available free from the agencies that require them, so don’t bother paying money to a commercial vendor for them. The posters change too often to make that a good deal.

Here is where you can find explanations and instructions for downloading almost all the posters required by federal law.

Here is where you can find almost all the posters required of Texas employers in addition to the federal posters.

Failure to post the required notices for your employees to see can cost you as much as $100 per poster per worksite if anyone spots or reports your violation. It is so easy to post these things that there is really no reason not to do so.