Supervisors can learn a lot from others' mistakes, particularly when it comes to employment law issues. Here are four recent court decisions that provide lessons on how supervisors can keep their organizations (and themselves) out of legal hot water.
1. Don't try to muzzle employee talk of pay, work conditions
You may not like employees comparing their paychecks or bad-mouthing their managers in the breakroom, but don't try to silence such off-duty chats.
That's because the National Labor Relations Act makes it illegal to ban or punish employee discussions of working conditions, pay, benefits and promotions. That law sounds like it only applies to unionized work forces, but it actually applies to every U.S. workplace, unionized or not.
Example: An employee was fired soon after he began complaining to his co-workers about the company's compensation system. His supervisor says the employee was fired for being a "troublemaker." But the employee filed suit, saying the real reason was his legally protected wage complaint. The court sided with the employee.
Final tip: While you can't limit such discourse, you can limit certain on-the-job discussions if they'd disrupt the workplace. For example, you can tell employees to discuss nothing but business in front of customers.
2. Write e-mails and reviews as if they'll be read in court
Whenever you write an e-mail, memo, performance review or any other employee-related document, think about how your words could appear if they're read to a jury during an employee's lawsuit.
Be especially sensitive to comments about employees' illnesses or disabilities that could be interpreted as discrimination. That applies to documents going into employees' personnel files, as well as to such unofficial documents as e-mail correspondence.
Why all the carefulness? The ADA says that if you treat employees as disabled, they'll earn ADA job protections (even if they're not truly disabled). So, you'll be asking for trouble if you make assumptions about an employee's ability to do a job without testing or asking that person.
Example: A sanitation worker on the night shift developed night blindness, which meant he couldn't see well at night. During negotiations to move him to the day shift, a supervisor wrote a memo that recommended his firing, saying that, "If his disease continues to degenerate, why are we waiting to terminate him?"
The employee was fired, filed an ADA lawsuit and won. The supervisor's "diagnosis" was wrong, and the employee was perfectly capable of working the day shift. The court cited the internal memo as evidence that the employer perceived the worker as disabled and had wrongly terminated him.
Do you ever wonder if the one thing you do or don't do when dealing with your employees is the thing that will trip you up and land you in court facing a disgruntled employee – and a judge who may or may not sympathize with your side of the story? Find out what else you need to know about management concerns in Managers' Pocket Guide to Employment Law. Get your copy here.
3. Customer preference is no reason for biased hiring choice
When it comes to hiring, the applicant's age, race, sex or religion should never play a role in your decision, even if you believe that customers or clients would favor one type of person over another.
Courts have consistently said that discrimination is discrimination even if hiring managers push off their prejudice onto a third party, using excuses such as, "Our customers feel more comfortable dealing with (white or younger or male) employees."
Basing hiring decisions on the prejudices of your customer base, even for organizations that depend on customer satisfaction, is a sure way to land in court.
Example: An African-American poker dealer was well qualified, but he was repeatedly turned down for a permanent dealer position at a Mississippi casino. The man sued, alleging race discrimination, and won. As evidence of the company's bias, the employee's lawyer brought forth a casino employee who said she heard the hiring manager say, "These good old white boys don't want black people touching their cards."
Final tip: This case also serves as a good reminder to avoid such unguarded, judgmental comments at work. Employees often remember (and take notes on) comments such as the "white boys" remark noted above.
4. Nonsexual bullying can equal sexual harassment
Sexual harassment doesn't just involve inappropriate touching or sexually charged comments. If you tolerate an employee who singles out co-workers of one gender for abusive or bullying treatment, your leniency could open the organization to a sexual harassment lawsuit based on a "hostile environment."
That's because federal law bans work discrimination on the basis of gender. And that ban encompasses sex-based harassment: hostile behavior targeted at employees of one gender.
Example: Three female office workers complained that their boss berated female workers in public, while going easy on male workers.
The women sued for sexual harassment and won. The court said the boss's bullying, although not sexual in nature, was discrimination based on sex.
Bottom line: Sexual harassment doesn't have to involve sex to be illegal.
"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."
Managers' Pocket Guide to Employment Law is full of real-life examples, practical advice and suggestions to help you stay in compliance when it comes to how you treat your employees. Our 36-page Pocket Guide Booklet is a quick read, but it's full of information to help you be both fair and legal, 100% of the time.
The guide is designed to help you stay well within legal boundaries when dealing with tough employee problems. Each section covers a specific law or related legal topic. You'll get actionable advice on dealing with everything from the Americans with Disabilities Act to workers' compensation, plus touchy topics such as sexual harassment claims and retaliation charges.
Order your copy of Managers' Pocket Guide to Employment Law and review management situations that might trigger employee-related lawsuits – plus ways to defuse them.
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- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- How to Write Meeting Minutes
- Prepare for even more disclosure of exec compensation
- Remind bosses: Reference check calls go to HR
- Inadequate screenings at DCF
- Company itself may be liable when CEO is the harasser