Have you checked your company’s bulletin boards lately? Do they show the correct, updated federal- and state-law posters? As this week’s new court ruling shows, poster mistakes can actually breathe new life into supposedly dead employment lawsuits …
Case in Point: The Claridge Hotel in Atlantic City, N.J., employed Hau Wai Yip, a Chinese man who worked as a chef, and Kang Mei Chan, a 40-year-old Chinese woman who spoke no English, as a maid. They were eventually fired by their supervisor, Jenny Wong.
Both workers didn’t go quietly. They sued the hotel and Wong for national origin and race discrimination under state law and Title VII of the Civil Rights Act of 1964. Their claim? Yip accused Wong of touching him on his legs and thighs and asking him for sexual favors. Chan accused Wong of saying that Chan could return to China if she didn’t like her job and that Chan was too old to be a maid.
The hotel thought it had a silver-bullet defense. It argued that the lawsuits couldn’t proceed because Yip and Chan failed to file their cases within 300 days of the discriminatory act (the termination), as the law requires. Yip filed his complaint with the state human rights agency 332 days after his termination. Chan filed hers 364 days after.
But the lawyers for Yip and Chan argued that these statute of limitations should be waived because the workers didn’t know about the laws or the time limitations. One reason: The hotel failed to post the required notice of employee rights in the workplace. Plus, race and sex discrimination is not illegal in China, so they had no idea it was prohibited in the United States until they spoke with a lawyer. (Zheng v. Wong, E.D.N.Y., 8/24/09).
What happened next and what lessons can be learned?
The court sided with the workers and sent the case to a jury trial. It said the filing deadlines didn't apply in this case because, “An employer's failure to post the required notices of anti-discrimination laws will equitably toll the 300-day limitations period until such time as the employee learns or reasonably should have learned of her rights through some other means.”
3 Lessons Learned …Without Going to Court
Simply stated: Post it, Post it, Post it!
1. Post federal laws. Make sure your compliance posters describe employees’ rights under all federal laws. The laws have recently expanded, so now is the time to make sure all your posters are updated. Find a list of required federal posters at the U.S. Department of Labor (DOL) Poster Page or use the agency’s E-Laws Poster Advisor.
2. Post state laws. Don’t forget to post employees’ rights under state laws, too. States may grant employees additional rights and they need to know what those are, too. Find links to poster requirements by state at DOL’s Office of Small Business Programs.
3. Post in multiple languages. If you have a diverse workforce, make sure your posters are available in all native languages. As in this case, posters in Chinese would have help defeat these late claims. The DOL's Poster Page also offers posters in other languages.
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