A New York City broker of apartment rentals and sales may face legal liability for alleged age bias—not because it discriminated, but because its independent contractor did. It’s a cautionary tale for any organization that outsources hiring.

Outdated workplace posters aren’t just a minor mistake that, at worst, could trigger only a small fine. As a new court ruling shows, poster mistakes can actually breathe new life into supposedly dead employment lawsuits …

Older employees who believe a supervisor is trying to get rid of them because they’re too old can voluntarily retire—and then turn around and sue their former employer. By citing the so-called constructive discharge theory, they can show they had no choice but to quit.

Retail giant Sears will pay $6.2 million to disabled workers it refused to accommodate. The EEOC sued Sears after uncovering more than 100 employees who claim the company refused to discuss accommodations before firing them.

Employees you don’t hire can’t cause too much legal trouble, right? Wrong! In today’s tough economy, frustrated job-seekers are more likely than ever to sue. And if they sue for discrimination and win, courts are increasingly likely to award both back pay and lost future earnings ...

If you haven’t reminded supervisors in a while, do it now: Never write, say or even think that you’d prefer someone of the opposite sex to do a job.

Is your organization a subsidiary of an overseas company? If so, you may have to warn managers who are used to a different set of rules that comments about age preference can lead to trouble.

Greater Metroplex Interiors, a Southlake drywall and light construction company, has agreed to settle claims that it fired a female employee in retaliation for her complaints about sexual harassment and gender discrimination.

Do you have a progressive disciplinary system? Don’t short-circuit it!

Judges rarely second-guess the decisions of employers that use reasonable methods to hire or promote the best candidates. By using objective criteria and documenting the selection process, savvy employers win most cases.

Many employers believe that if an employee needs accommodations for a disability that’s related to the same serious health condition covered by the FMLA, they don’t have to provide any additional leave once the employee has used 12 weeks of FMLA leave. That’s not always true. In fact, additional unpaid leave after FMLA leave has been exhausted may be a reasonable accommodation under the ADA.

Attorneys seem intent on finding some form of discrimination in every adverse employment decision—and courts seem increasingly inclined to go along. Consider this recent case, in which a pregnant black employee won the right to a jury trial on race and national-origin discrimination based on the allegation that a white pregnant employee was treated better.

Despite a summer of political circus distractions in Albany, the New York Legislature continued to crank out laws that further regulate New York employers. Here are some recent changes to New York State laws that you need to take into consideration.

Q. Can I implement a rule against hiring people who are overweight?

Disciplining employees often requires making tough calls, especially when the disciplinary action is based on the word of co-workers. You may be forced to choose whom to believe. Don’t be tempted to ignore the complaint just because you can’t be sure who’s right. As long as you are honest, courts will be reluctant to second-guess you.

We all know that it costs money to train employees—and that turnover after investing in advanced training is a genuine and expensive problem. That doesn’t mean employers can get away with refusing to train someone approaching retirement age. That may be seen as age discrimination.

Like the ADA, Ohio’s disability discrimination law covers only some injuries, illnesses and conditions. It doesn’t cover temporary injuries.

When promotion processes bypass qualified candidates, discrimination lawsuits are almost sure to follow. That’s because employees can easily poke holes in complex candidate-ranking systems, and supervisor bias emerges when promotions are on the line. If you have set criteria for promotions, make sure you follow your own rules.

A former cashier for a Home Depot store in Okeechobee claims the retailer fired him because he refused to remove a button on his orange apron that said “One nation under God, indivisible.” Now Trevor Keezor has threatened to sue for religious discrimination.

Sometimes employees balk at following their supervisors’ directions—especially when they consider an order ill-advised or even stupid. But the underlying wisdom of the directive doesn’t excuse an employee’s angry reaction. He or she can still be terminated for insubordination if he responded inappropriately.

Supervisors sometimes get angry when employees accuse them of some form of discrimination. But if that anger spills over into increased scrutiny, more job tasks and other unpleasant conditions for the employees who complained, count on even more legal trouble. That’s why HR must do more than simply warn supervisors against retaliation.

If your organization uses arbitration agreements to help keep employment disputes out of court, make sure the agreement is drafted to be as broad as possible. Your best bet: Have an attorney write or review the agreement.

Employees who come to HR with complaints about alleged discrimination are protected from retaliation, as are employees who go to the EEOC or state and local anti-discrimination agencies. But what about employees who voice informal complaints? They’re protected from retaliation, too, even if all they did was simply voice concerns about how the company is treating other employees.

Here’s a problem you might not see coming. Let’s say you have an employee who belongs to a protected class, and whose skills you believe will help when relating to others of the same protected class. Before you decide to assign work to the employee based on those skills, consider whether doing so is, in effect, unspoken segregation.

The EEOC has filed pregnancy discrimination charges against Orlando-based Hilton Grand Vacations after the company failed to rehire a worker who resigned to deal with pregnancy-related health problems.

Roque Pastorius sued his former employer for disability discrimination covered under the ADA Amendments Act (ADAAA), which took effect on Jan. 1, 2009. The court tossed out his case, saying the law didn’t apply to alleged discrimination that occurred before the amendments became law.

Employees who discover their colleagues are making more money for doing the same work often conclude that there can be only one reason—discrimination. Next stop: an attorney, who will try to confirm the pay bias by comparing the employee’s paychecks with his co-workers'. That’s why you have to be proactive, consistently keeping good records that show why you’ve made every compensation decision.

Q. Our job application doesn’t ask for the applicant’s age or date of birth. However, we plan to start conducting background checks on job applicants we’re seriously considering. The company that will conduct the checks for us said the birth date is on all the applications they see and that it’s instrumental to conducting the checks. What should we do?

If you tack the phrase “women and minorities are encouraged to apply” onto the end of a help-wanted ad, could that be construed as race or sex discrimination? In a carefully worded opinion letter, the EEOC has said “no.”

If you have a strict grooming policy or are considering implementing one, make sure you first understand what you can and cannot require employees to wear or what grooming standards you can legally enforce. Employees can and do sue when their employers try to impose rules that interfere with religious beliefs, reflect sexual stereotypes or are simply demeaning.

Protecting yourself and your organization from lawsuits starts the minute you decide to hire someone. Potential lawsuit land mines line your path. To stay out of court, build your hiring process around these principles:

Employees who need to take care of a disabled relative may be eligible for FMLA leave if the disability qualifies as a serious health condition—but only if the employee has worked enough hours to be eligible for FMLA leave. Likewise, employees sometimes think their employers must provide them with reasonable accommodations so they can care for a disabled relative under the ADA’s so-called association clause—that’s simply not true.

If you have a robust college-student recruiting program, make sure you consider students from all age groups for your open positions—co-op and internship programs, too. That way, other employees can’t point to your college-student recruiting program as direct evidence of age bias.

If you’re looking to remedy past discrimination by adopting employment policies that encourage minority hiring, watch out! You may be vulnerable to a reverse discrimination lawsuit. That may be true even if your policies resulted from a court order to address discrimination.

Technology changes fast, and so do the skills employees need to succeed in their jobs. But some employees don’t feel comfortable taking the steps needed to adapt. If those employees happen to be older and you end up having to replace them, you could face an age discrimination lawsuit. You can avoid such lawsuits with a good skill-building plan ...

When co-workers involved in a romantic relationship break up, tensions can boil over in the workplace. And when an ugly situation creates a need for discipline, things get sticky for employers. Be wary of any discipline that targets just one of the former lovebirds. As the following case shows, doing so can lead to a sex discrimination lawsuit.

Q. Can we legally set a mandatory retirement age for our workers?

Q. I know employees can be required to waive their rights to sue to resolve employment-related disputes, either through a negotiated release or binding arbitration agreement. Can an employer also require employees to agree to waive their rights to file EEOC charges?

The EEOC has filed a disability discrimination lawsuit against UPS in federal court in Chicago. The suit alleges the package delivery giant consistently refuses to allow disabled workers to take extended medical leave as a reasonable accommodation.

Some employees believe the Pregnancy Discrimination Act makes it illegal to discharge a pregnant woman for any reason related to the pregnancy. That’s not quite true. The PDA merely requires employers to treat pregnant women no differently than other employees. That may mean discharge for complications associated with pregnancy—under the right circumstances.

Your supervisors have probably heard the horror stories of how negative performance reviews have sparked lawsuits from disgruntled employees. That could cause some supervisors to shy away from criticism and give excessively positive reviews to even their poorest-performing workers. The better thing to do is to urge your supervisors to “get real” with reviews.

Q. We give employees who opt out of our health plan a bonus. Do we withhold federal taxes on that bonus?

Have you warned all your supervisors and managers against using any slurs, no matter what background the slurs reference? If not, do so today! Otherwise—if the target of the slur happens to be discharged or demoted later—you’re risking a lawsuit for national-origin discrimination or some other form of bias.

Uncle Sam wants you to save for retirement—and this time he really means it. The agency has issued new guidance on retirement savings in a series of rulings that clarify the existing rules, enhance others and generally provide incentives for socking away more money for retirement. Here’s a roundup of the latest developments in this area:

According to a recent working-conditions survey, many employers are not doing the routine maintenance they should to keep their labor and employment compliance in tip-top shape. There’s no guarantee that tuning up your workplace policies like you do your car will avoid lawsuits. But, some routine preventive maintenance will go a long way to ensuring better compliance and fewer problems.

As you try to cut costs in a tough economy, it may be tempting to outsource some HR functions to an independent contractor instead of continuing to do them in-house. Before you make that move, consider this: Employers may be liable for discrimination practiced by the outsourced independent contractor.

A U.S. District Court jury in Texas has awarded $992,500 in an age discrimination lawsuit filed by a former employee of the company that provides food and beverage services for El Paso International Airport.

It may be tempting to ignore complaints you suspect are frivolous or unfounded. Don’t give in to that temptation! Instead, investigate the case as you would any other. Then resolve the matter and document everything—including whom you talked to and what they said. It’s the best way to short-circuit a meritless employee lawsuit.

Q. We have been threatened with a race discrimination lawsuit. Frankly, we think we made a mistake. Can we settle the matter just between the employee and us?

Sometimes, employers have to fire employees—even those who have recently filed successful discrimination complaints. Don’t be afraid to do so. You can beat a bogus retaliation claim by making sure you have good, solid documentation to substantiate the firing.

An Alice-based oil field services company has settled a reverse race discrimination lawsuit filed by the EEOC. The commission filed the suit in 2008 on behalf of Bert Yaklin, a white parts-department employee of Coil Tubing Services, which supports the petroleum industry in Texas and Louisiana.

Employees who complain about alleged discrimination by a supervisor can set up a retaliation claim if they are disciplined or otherwise punished shortly after complaining. Relying solely on the say-so of the boss the employee initially complained about may cause trouble if that supervisor’s reasons are flimsy.

Q. Our company maintains an affirmative action plan. I’m concerned, however, that if we refuse to hire a white applicant because of the plan, that person might be able to sue us for discrimination. Yet, if we don’t follow the plan, minority applicants can sue us. It seems like a Catch-22. What do we do?

The Age Discrimination in Employment Act protects workers age 40 or older from discrimination based on age. To win an ADEA lawsuit, an employee has to show that a younger employee replaced her. However, that younger employee must be at least six years younger unless there is direct evidence of age discrimination.

Businesses and nonprofits that receive taxpayer money and contract with government agencies to provide services may be prohibited from using religious criteria in hiring and firing. And hiring on the basis of someone’s religious beliefs or affiliation may be proof that an employer has crossed the line.

When it comes to termination, courts cut employers lots of slack—if employers can show they sincerely believed they were firing an employee for good reasons. You can show that good faith by having HR review all disciplinary actions, especially double-checking on termination decisions before they are finalized.

Although state and federal laws protect new mothers from discrimination, the Ohio Supreme Court has ruled it was legitimate for an employer to fire an employee who did not ask for an accommodation to pump breast milk. The court concluded that the employer didn’t discriminate on the basis of sex, but simply terminated an employee for insubordination.

New York employers found to have discriminated against employees can be assessed fines up to $50,000 under new terms of the New York Human Rights Law. If a court finds employment discrimination to have been willful, the fines—payable to the state—may be as high as $100,000.

You need a zero-tolerance policy banning all comments about race or ethnicity. It doesn’t matter whether the race being singled out is a majority or a minority race. The act of harassing someone because of his race is illegal either way. It also doesn’t add one bit to workplace harmony or the bottom line.

In two recent decisions, our firm was successful in recovering monetary relief for employers that had either been victimized by employee wrongdoing or unsuccessfully sued by employees. We covered the first case in “Payback time: Employer wanted its money back—and got it!” Now we’ll discuss a case in which an employer recovered substantial court costs because a court applied plain-old common sense when it looked at existing rules.

Here’s a bit of good news for employers fighting baseless lawsuits: The 7th Circuit Court of Appeals has signaled its willingness to allow trial judges to order attorneys’ fees for employers forced to defend themselves from litigation that has no merit.

In a case that has simple yet profound lessons for employers, the 7th Circuit Court of Appeals has ruled that an employer wasn’t liable for co-worker harassment—all because the company acted fast and effectively when it discovered the harassment.

The EEOC has filed national-origin and race discrimination charges against Immokalee-based packing company Six L’s. The complaint alleges Haitian employees endured a hostile work environment in which they were continually degraded by a largely Hispanic cadre of manages who considered Haitian workers “slaves.”

Before you fire any employee, double-check to make sure others who performed just as poorly or made similar mistakes were also terminated. Doing so may prevent a lawsuit … or, if you are sued, at least provide evidence that you treat everyone alike.

Here’s a novel twist on the ADA violation of regarding someone as disabled. The 11th Circuit Court of Appeals has ruled that an employer doesn’t necessarily consider an employee disabled just because a manager uses a health-related excuse to help a worker get out of jury duty.

You can preach your zero-tolerance policy on discrimination and retaliation until you’re blue in the face—and sometimes it still makes no difference. Occasionally a supervisor will say or do something stupid that gets the company dragged into court. However, there are steps you can take to avoid liability.

Q. Our company is owned by a foreign parent company. A former employee who was discharged last year recently filed a suit against us and our parent, claiming age discrimination in violation of the Minnesota Human Rights Act. Will the court dismiss our parent company from the lawsuit?

The 8th Circuit Court of Appeals in late September upheld a lower court ruling that the National Football League cannot suspend Minnesota Vikings defensive tackles Kevin Williams and Pat Williams for violating the sport’s drug policy.

An employee who has been discharged may go looking for some underlying reason other than poor performance to explain why she got the ax. And she may suddenly remember incidents that now seem awfully a lot like sexual harassment. Your best defense to such charges is a robust harassment and discrimination policy that tracks every complaint.

Employees who complain about discrimination are protected from retaliation—but not from every consequence of their complaint. Take, for example, what often naturally occurs when someone files a harassment complaint that turns out to be unfounded or unworthy of drastic action like firing the alleged harasser. There’s bound to be backlash from other employees ...

Employees who complain about discrimination can win retaliation cases even if it turns out their underlying complaint didn’t amount to discrimination. That’s why it’s so important to review all post-complaint discipline—to make sure it’s fair, justified and not potential retaliation.

 We all like to think we’ve moved beyond race discrimination, but the number of race bias lawsuits being filed suggests otherwise. That’s why employers need to make sure their hiring and discharge practices don’t discriminate. 

Employees who sue under the FMLA for alleged interference with the right to take covered leave can’t throw in an additional claim for wrongful termination under state common law. That’s because North Carolina allows wrongful termination claims only in very limited circumstances ...

A federal court hearing a North Carolina case has dismissed a discrimination lawsuit based on failure to file that lawsuit within a shortened time limit that the parties had agreed they would use.

According to an EEOC complaint, Professional Building Systems has subjected African-American employees at its headquarters in Mount Gilead to harassment that included drawings depicting the workers and members of the Ku Klux Klan.

Employees who complain about alleged discrimination engage in what is commonly called “protected activity”—and that means they can’t be punished for doing so. Thus, it’s illegal to retaliate against an employee who goes to HR to report possible discrimination. But what about employees who never come forward on their own, but who simply respond to a supervisor’s question about equal treatment? Are they also protected?

Sometimes, it makes financial sense for companies to engage workers as independent contractors rather than as employees. It can have advantages for workers, too. But whether a worker is an employee or an independent contractor has nothing to do with the desires of the organization or the worker. Not even a written contract can make someone an independent contractor if that status isn’t legitimate.

Employees don’t have to actually be handicapped to be protected from discrimination under the New Jersey Law Against Discrimination (NJLAD). It’s enough that an employer perceives them as handicapped. As the following case shows, it doesn’t take much to send such a case to a jury trial.

The 3rd Circuit Court of Appeals has reversed an earlier decision made just months ago and ruled that when a woman asks for a raise to equal her male counterpart’s pay, ignoring the request is the same as denying the request. The employee may then file a Title VII pay discrimination claim ...

Here’s another good reason to push for early dismissal of employee lawsuits when it’s clear the employee has missed an important filing deadline: Doing so may kill state claims that have yet to be filed—if those claims are based on the same facts.

Unlike employees, independent contractors can’t sue under Title VII for alleged discrimination. But that doesn’t mean they don’t have legal options if they believe they’ve suffered race discrimination. The 3rd Circuit Court of Appeals has just concluded that an old Civil War-era law still outlaws discrimination in contracting.

As one of the largest investment management companies in the nation, Malvern-based Vanguard Group is used to making money, not paying it out. That could change now that the firm has been sued for racial discrimination after allegedly refusing to hire a black applicant for a high-level finance job.

As the winter months set in, some people may notice that they feel more tired, experience weight gain or struggle to get out of bed in the morning. While the majority of people who experience these symptoms have nothing more serious than the “winter blues,” others suffer from a potentially debilitating condition known as seasonal affective disorder (SAD). Be careful not to brush off employees who complain of SAD.

Your computer-usage policy no doubt prohibits visiting inappropriate web sites. But what if someone surfs forbidden sites using a computer that a group of employees has access to? In such cases, investigate but make sure to check out everyone’s story.

Do you “play favorites” with certain employees? Most managers would probably say “no,” but people often harbor unconscious perceptions that can influence day-to-day decision-making and job reviews of the employees they manage. Several factors unrelated to employee performance can impact evaluations conducted by managers.

Do you "play favorites” with certain employees? Most managers would probably say “no,” but people often harbor unconscious perceptions that can influence day-to-day decision-making and job reviews of the employees they manage. Several factors unrelated to employee performance can impact evaluations conducted by managers.

Family responsibility discrimination (FRD)—discrimination against employees because of their family caregiving duties—has become a hotbed for litigation against employers, and every indication is that this trend will continue. So it’s critical for employers to recognize the potential for liability and take necessary steps to avoid being the next defendant.

Abercrombie & Fitch has been fined $115,000 for discriminating against an autistic customer at a Minneapolis store. Fourteen-year-old Molly Maxson, accompanied by her mother and sister, wanted to try on clothes at the store. But store employees stopped Molly’s sister from entering a dressing room to help her.

Some supervisors become visibly annoyed when receiving a doctor’s note that sets work restrictions on one of their employees. If the employee sees that reaction and then suffers discipline or termination soon after, watch out! He or she could link the timing of the two events as evidence of discrimination or retaliation.

It’s frustrating when an employee continually claims to be the victim of discrimination while internal investigations show that just isn’t so. If an employer is confident the employee’s charges are false, it can terminate the employee. That’s true even if you turn out to be wrong—because what matters is your good-faith belief that the employee made up the discrimination claims.

Sometimes, it’s best to just come clean. Even the best HR pros make mistakes when promoting or hiring employees. When that happens, and another employee sues, alleging that the hiring or promotion process was tainted by discrimination, it may be a good idea to admit that mistake to the court or the EEOC.

A federal court hearing a Minnesota case has concluded that the amendments to the ADA that were enacted in 2008 are not retroactive. That means you don’t have to worry that employees will sue over alleged violations that occurred before the amendments were passed ...

Talking with employees about their performance problems can be an uncomfortable moment for any manager. But it’s also a crucial part of the job and, if done well, will ultimately make a manager’s job much easier. Here are seven steps to planning and executing such discussions:

If I had to boil employment law into one overarching maxim, it would be this: Be fair and document everything, in case someone thinks you’re not being fair. If you doubt the importance of thorough documentation, consider two recent cases decided by the 6th Circuit Court of Appeals.

“We’ve put a freeze on pay raises, so why do we need to keep doing performance reviews?” The recession has led many employers to ask themselves that question. But dropping reviews can be a morale buster and liability magnet.

The 3rd Circuit Court of Appeals has issued an opinion that may result in many more sex discrimination lawsuits at work. The case allowed an avowedly homosexual man to file a sex discrimination and harassment lawsuit based on his effeminate mannerisms—even as the court reiterated that sexual orientation isn’t covered by Title VII.

The 7th Circuit’s recent opinion in Martino v. MCI represents the first opportunity for that court to apply the U.S. Supreme Court’s recently clarified standard for determining liability in disparate-treatment cases brought under the ADEA. Together, the two decisions make it harder for employees to win some age discrimination lawsuits.

Q. The attorney for one of my former employees sent a letter demanding payment for overtime compensation. The letter threatened to sue me personally, along with my corporation. I understood that only the employer—the company—and not the CEO or owners of the corporation could be sued under employment discrimination laws. Can I be sued personally for wage-and-hour claims?

Here’s advice that bears repeating to everyone involved in hiring and firing: Never opine that you’d prefer someone of the opposite sex to do a job. Word will get around … and you’re sure to get sued.

E-mail—often quick and informal—is the standard for most business communications these days. But if you’re too casual in the way you word e-mails, you could wind up in lots of legal trouble, as the following case shows.

The ADEA makes it illegal to discriminate against people age 40 and older in hiring, terminations, pay, promotions, benefits and any other terms of employment. Here are the key areas where age bias claims typically pop up:

Courts traditionally have been lenient with plaintiffs who represent themselves, giving them every benefit of the doubt. As this case shows, that seems to be changing.

Employees who engage in some form of protected activity—such as filing an EEOC complaint, participating in a discrimination case or complaining about possible discrimination to the company—are protected from retaliation for doing so. But often employees who complain about one thing end up suing on entirely different grounds ...

Here’s a potential trap you may not have considered: Punishing a former employee may be retaliation, too. That means that you must carefully consider anything you do involving a former employee before you act.

At some point, a former employee will sue your organization for discrimination. The typical argument: Someone not in the same protected class as the employee was treated more leniently. How will you show that’s not true?

Older employees who are demoted, not promoted or fired sometimes assume they can win ADEA lawsuits simply by proving they were the oldest employee to suffer their fate. That’s not the case.

Texas doesn’t allow so-called intentional infliction of emotional distress claims by employees when the underlying facts show the case is covered by employment laws that address bias. That gives employees one less weapon to wield.

A former Teknor Color Co. employee is suing the Jacksonville company for violating the ADA and the Civil Rights Act when it terminated her from her crew leader position.

Employees who think they’ve suffered discrimination sometimes have a hard time finding a lawyer to represent them. Then, instead of accepting that maybe they don’t have a case worth pursuing, they file their own suits and try to represent themselves. Take those cases seriously.

Employees who complain they’re being discriminated against sometimes seem less than cooperative once you start investigating their claims. If that happens, don’t be too quick to discipline that employee for hindering your fact-finding effort.

According to the EEOC, White Way Cleaners discriminated against a female worker when it first moved her from the cleaning line to the front counter during her first pregnancy and then again when it terminated her after learning she was pregnant again.

When employers discipline employees following an argument or other confrontation, getting the facts straight is crucial. Recent case: Kevin Phillips, who is black, was fired after he got into a fight with a white supervisor. Another supervisor witnessed the incident. However, Phillips was the only one involved who was punished ...

One good way to eliminate discrimination lawsuits is to have the same manager who hired an employee also handle the termination if you need to let the employee go.

Here’s a problem you may not see coming: A group of employees comes forward and complains about a supervisor’s management skills. You decide to take action and demote the supervisor. Before you act, check for potential bias if the supervisor is of a different ethnicity, race or other protected classification than the subordinates.

Thanks to a recent appeals court decision, employers no longer have to hire attorneys to fight unemployment compensation cases. Employers can represent themselves or use the assistance of representatives who aren’t lawyers.

Employees who discover their colleagues are making more money for doing the same work often conclude that there can be only one reason—discrimination. Next stop: the office of an attorney, who will try to confirm the pay bias by comparing the disgruntled employee’s protected class status to those earning more.

According to an EEOC complaint, North Carolina-based Professional Building Systems has subjected black employees in Pennsylvania to harassment that included drawings depicting members of the Ku Klux Klan. The complaint also alleges nooses have been displayed in the workplace ...

Employees who have minor physical problems—even permanent ones—aren’t necessarily disabled and entitled to ADA accommodations. The test in each case is how the impairment compares with the average member of the general public.

The Retaliatory Employment Discrimination Act is intended to prevent employers from punishing employees for reporting unsafe or illegal working conditions or filing workers’ compensation claims. But recently, employees and their lawyers have tried to use REDA to claim more general retaliation for reporting allegations of race discrimination. Fortunately, the courts are shutting the doors on such claims.

North Carolina state employees who take their discrimination complaints to the North Carolina Office of Administrative Hearings lose the right to litigate the same claims later in federal court under Title VII. They don’t get two bites at the apple.

You shouldn’t have to worry about losing a retaliation lawsuit if you consistently follow your internal rules for seeking medical information from employees who ask for sick leave. That’s true even if the employee has already complained about discrimination, either internally or to the EEOC.

Performance improvement plans (PIPs) are great tools to help underperforming employees come up to standards. But some employees think they can file a lawsuit anytime they are placed on a PIP or are justified in quitting. As the following case shows, that’s not necessarily true.

The rise of electronic communication has forced employers and courts to take a fresh look at many issues that used to be considered routine. The age-old concept of attorney-client privilege is the latest one to whipsaw through the courts.

Several cases on the U.S. Supreme Court's docket this term involve employment and labor-related issues. One of the most notable of these will decide how much time plaintiffs have to file a lawsuit when they believe they have been unfairly penalized by hiring tests. Other cases will resolve issues involving an alleged whistle-blower, pension benefits, race discrimination and labor arbitration.

The EEOC has filed suit against Belmont Abbey College, a Catholic-run institution in Belmont, claiming the college’s refusal to provide coverage for birth control in its employee health plan violates the federal Pregnancy Discrimination Act.

Here's a roundup of timely questions posed by readers of HR Specialist's Compensation & Benefits newsletter. You'll find answers on such hot topics as health insurance opt-out bonuses, differing pay structures for similar work, unemployment benefits for furloughed workers and paying for travel time.

Departing employees who are asked to sign severance packages now have a new tool to discover if those packages comply with federal law. The EEOC just unveiled a new guidance document that is expected to cause more people to question their severance packages—either to HR or to a court.

Perhaps the irony is lost on those who don’t remember the ’60s. Ruby Tuesday Restaurants—named after an early Rolling Stones hit—has been charged with violating the ADEA by refusing to hire applicants over age 40. If allegations by the EEOC are true, Mick Jagger himself couldn’t get hired at the store’s franchises ...

There’s one silver lining to the rapid growth of employment lawsuits: Courts are losing patience with the rising number of applicants, employees and former employees who file suits that have no basis in reality. Increasingly, courts are approving sanctions against such employees and their attorneys.

Supervisors who stand up for subordinates when they claim they have been discriminated against may be engaging in “protected activity.” That could make punishing those supervisors retaliation.

It happens to every manager: You sit down to prepare a staff member's review and realize you can remember only what the person has done the past few weeks. Supervisors should never rely solely on memory to evaluate employee performance. The most useful, easy-to-implement way is to create and maintain a log for each person. Here's how.

Job postings go up … they come down. They go up … they come down. It all seems quite normal. That is, unless you pull down a job posting to avoid a specific type of candidate. As this new case shows, you can’t delist a job or try to “hide” the position when you don’t like who applies. Peek-a-Boo, the court will catch you!

Paul Falcone, author of 101 Tough Conversations to Have with Employees, offers these scripts to follow when you need to have awkward but essential conversations with employees. Here's what managers should say after they've said, "Hey, got a minute?" Falcone will present more of his powerful advice in Tough Talks: Scripts and Strategies for Difficult Employee Discussions, an HR Specialist webinar happening this Thursday, Nov. 12.

Occasionally, employees work up the nerve to complain about sexual harassment only to get cold feet about pressing their complaints or naming names. What should you do if an employee complains, but then just asks for a transfer instead of identifying the alleged harasser? That’s the situation one employer recently faced.

Here’s a reason to slow down and act deliberately when disciplining an employee who has filed an EEOC complaint: A court has concluded that coincidental timing alone can be enough to keep a case alive. That’s true even if it turns out that all the accusations in the EEOC complaint turn out to be unfounded.

You are no doubt familiar with Title VII of the Civil Rights Act. It prohibits various kinds of discrimination and also spells out tight deadlines for when employees must file complaints with a state discrimination agency or the EEOC. But there is another avenue employees can use to get into federal court, as long as race is at the core of the discrimination claim: Section 1981 of the Civil Rights Act.

Some employees with genuine disabilities may think they can use their physical or mental conditions as an excuse to break workplace behavior rules. They can’t. As long as those rules are clearly explained and enforced equally, you don’t have to listen to my-disability-made-me-do-it excuses. You can lower the boom.

Employers that support pregnant and working mothers fare better if they do get sued by someone who believes she suffered pregnancy discrimination. That’s because courts are reluctant to believe that an organization would suddenly become biased after demonstrating a history of progressive policies for pregnant women and working mothers.

Times are changing in the world of workplace immigration law. Employers now have to complete a new version of the I-9 Form. The feds just launched “a bold new audit initiative” to punish employers who hire illegals. And starting Sept. 8, thousands of federal contractors are required to use the electronic E-Verify system. Result: a greater risk for immigration-related trouble than ever before ...

For years, employers have grappled with the question of what exactly is “sexual harassment” and how much sexual banter is allowable. But lost in that debate is the fact that a workplace is just that—a place where work is supposed to be done. Here’s one good way to end this legal tightrope-walking and prevent potential problems down the line: Implement a policy that clearly bans sexual banter. Then punish those in violation.

Age-discrimination lawsuits have shot up in recent years, climbing 29% last year alone. But a recent pro-business ruling by the U.S. Supreme Court will make it harder for employees to prove age bias in the workplace. Employee advocacy groups are crying foul.

It’s a fact of life: Employees get into arguments at work. Obviously, you can’t let a situation get out of hand. But be careful how you discipline the individuals. That’s especially important if there’s no clear evidence about who said what to whom. If you decide to suspend one employee, suspend the other one, too.

Traditionally, a temporary suspension with full pay hasn’t been deemed an adverse employment action, mainly because courts want to give employers time to determine what an appropriate disciplinary action might be. But if the employer extends that suspension or turns it into a transfer to a no-duties position, courts may take that into consideration.

It often makes sense to give a fresh start to a poorly performing employee who has been complaining about discrimination. Place her in another position with a new supervisor, new co-workers and a clean disciplinary record. Then if her workplace problems persist, you can terminate her without worrying about retaliation claims.

Employees are entitled to a workplace free of discrimination. That includes having equal access to training. In recent months, several lawsuits have been triggered because supervisors allegedly favored certain employees for training opportunities at the expense of other employees who belong to a protected category.

What if a management consultant suggests that you find “young, energetic” people to take over? A court ruling last week sends a clear warning: Be careful who you listen to for advice … and where you write it down.

If discrimination has always been a head-in-the-sand issue for you and your organization, it’s time to get serious about your policies and practices. Discrimination complaints of all types—race, sex, age, etc.—have skyrocketed in the past year as the economy has fallen. Here's how to avoid becoming one of the EEOC's targets.

Q. An employee sent a companywide e-mail inviting employees to attend a morning prayer and Bible study prior to work that will be held on the company premises. Do we have to allow this (or do we have to shut it down)?

Here’s how little it takes to land a good organization in the hottest of legal waters: One verified comment by a supervisor showing that he’s against promoting or hiring minority applicants may mean a costly class-action lawsuit. The good news: You can often ferret out hidden discrimination with some simple statistical analysis.

While courts seldom want to second-guess employment decisions, sometimes employers provoke that scrutiny. That can happen, for example, when companies rely on the “old boy network” to promote from within instead of using a more formal, organized process.

The U.S. Equal Employment Opportunity Commission is accusing Norfolk Southern Railway of sex discrimination in a lawsuit filed recently in Maryland. The lawsuit says Norfolk Southern supervisors deprived a female employee of an opportunity for the training she would need to be promoted to a yardmaster.

Every employer’s goal should be to manage employees in a manner that’s blind to race, sex, age and disability. That doesn’t always happen. But it’s important to realize that it’s only when unfairness harms members of a protected class that the practice is illegal.

Have you ever felt that punch-to-the-stomach feeling of clicking “Send” and realizing you blasted an e-mail to the wrong person? As the CEO in the following case learned, one misguided e-mail mixed with some poor judgment can stir up a potent legal stew …

It sometimes takes extra money to entice an applicant to jump ship. That’s all part of the hiring dance. But there's a hidden peril that could land you in court—and cost you thousands. Learn the best practices that will help you defend yourself.

Q. On our applications, can we include a question that asks if applicants are related to any current employees?

A federal district court in New Jersey recently approved a settlement in an employment discrimination case where an employee received both front pay and back pay. Hashing out the settlement figure, however, was the easy part. Both sides were confused about how to treat the pay for tax purposes. Do IRS regulations consider both front pay and back pay to be wages?

A federal district court has ordered Lufkin Industries, the East Texas oilfield and industrial equipment manufacturer, to pay more than $3 million in back wages to a group of approximately 900 employees who claim they were victims of race discrimination.

Employers know they are not supposed to discriminate against employees based on protected characteristics such as race, age or sex. But HR can’t be everywhere, and in large organizations, it may be hard to monitor equal treatment. A centralized discipline-tracking system can help you check for possible hidden discrimination by comparing proposed discipline against past discipline.

An employee facing discipline may bristle if you choose to believe someone else’s version of what happened instead of his own. He may even offer to take a lie detector test to prove what he’s saying is true. You don’t have to accept that offer.

Managers of the massive federally funded Starrett City housing complex in Brooklyn have settled with the EEOC, bringing a halt to a lawsuit that accused the management company of disability discrimination after it allegedly failed to promote an employee because he suffers from attention deficit disorder.

Employees who are disabled after an injury on the job often apply for workers’ compensation. Receiving those benefits, however, isn’t a bar to asserting ADA and state disability claims, as a federal court hearing a New York case recently concluded.

A recent federal court decision means you’ll now have to go the extra mile to prove that your worker is an independent contractor, not an employee. Advice: Take steps to document exactly why you believe someone is an independent contractor when you begin using his or her services.

The 2nd Circuit Court of Appeals has ruled that an employee who was passed over for a promotion can’t later use the poor performance of the person who got the job to prove the decision was discriminatory. The case shows that courts are willing to let employers make mistakes; they won’t micromanage hiring and promotion decisions.

Sometimes, employees claim they didn’t dare complain about alleged discrimination or a hostile work environment until years after the fact. To explain the delay, they may say that they were scared to complain. That’s when you should check for prior complaints. If there are any, the fact that they complained earlier can be used to show they couldn’t have been all that afraid.

Supervisors who want to hand-select a particular employee for a job may be tempted to play fast and loose with the company promotion process. Watch out!

The U.S. Supreme Court has ruled that the city of New Haven, Conn., violated the rights of white and Hispanic firefighters who took promotion exams when it refused to use the test results to promote the highest scorers. The court ruled that the city could not use “[f]ear of litigation alone” to justify rejecting the results simply because the test appeared to have a disparate impact on another minority—namely the black firefighters who took the test.

Somehow, despite this summer’s fight over whether Democrats or Republicans controlled the New York State Legislature, members of the Assembly and Senate and Gov. David Paterson found time to amend the New York State Human Rights Law. Effective July 6, 2009, the law expanded the application of civil fines and penalties in cases of employment discrimination occurring on or after that date. The change means the stakes for making an employment law mistake have dramatically risen.

Pregnant women have many legal protections under Title VII’s sex discrimination provisions, the Pregnancy Discrimination Act and the FMLA. They rarely, however, qualify as disabled. That’s because normal pregnancies may create temporary difficulties, but they’re not severe enough to count as substantial limitations ...

Companies that fire lots of employees get sued for discrimination by many of the castoffs. But all those terminations may be an indication of employee/management personality conflicts, not discrimination.

According to the EEOC, Scrub Inc., which cleans commercial airplanes that land at O’Hare International Airport and provides janitorial services at other large Chicago-area facilities, discriminates against black job applicants.

When promoting from within, one of the best ways to protect against retaliation claims is to use a promotion panel. If possible, make sure panel members don’t know about any complaints any of the candidates might have previously filed. That way, if the employee who says he’s being retaliated against doesn’t get the job, he can’t blame it on the panel’s knowledge of his prior protected activity.

Remind supervisors that any comments they make about race or another protected characteristic can come back to haunt the company. It doesn’t much matter whether the comments come before or after a termination decision has been made.

In an important victory for employers, the U.S. Supreme Court ruled this summer that for employees to successfully bring lawsuits under the Age Discrimination in Employment Act, they must now show that age discrimination was the cause of their termination or other adverse job action ...

It may be tempting to ignore rumors about racial or other hostility in the workplace. But you do so at the company’s peril—especially if some of that hostility is coming from a supervisor who has the power to hire and fire.

Here’s a bit of good news for employers: While class-action lawsuits have been all the rage in recent years, the 3rd Circuit Court of Appeals has refused to expand the types of cases that can become class-action claims when the ADA is at the heart of the case.

Courts seldom second-guess firing decisions if employers can articulate solid reasons for the discharge—and take the time to document their decision-making processes. That’s because employees who want to challenge their employer’s termination decisions have to raise suspicions that the employer’s reason was not credible and that it wasn’t really a motivating factor in the decision.

Federal employees have special rules they have to follow in order to sue their employers for discrimination. One of these requirements is to contact an Equal Employment Opportunity “counselor” within 45 days of the alleged discriminatory act. The 9th Circuit has concluded that employees don’t have to contact the individual their employer has designated as the EEO counselor ...

If you have to fire an employee, don’t worry that a court is just waiting to second-guess why you did so. The fact is, courts are reluctant to question your reasons as long as you can convince them the reasons were honest, even if in retrospect they may seem baseless or even foolish. They don’t want to become a national HR department.

Reductions in force are risky, so plan them carefully. Before you try to explain why you’re letting certain employees go, make sure your reasons make sense.

Virginia-based Stanley Furniture has settled a racial harassment suit filed by three employees at the furniture manufacturer’s former plant in Lexington.

Employers often have many reasons for choosing one candidate over another. You should document all business-related reasons for your decision. But you don’t have to list them all in the rejection letter you send. Feel free to provide just one reason.

Q. One of my employees has informed me that she is about to begin undergoing in vitro fertilization (IVF) treatments. She requested some intermittent time off from work. Am I required to grant her request?

Men can sexually harass men, and women can sexually harass women. The U.S. Supreme Court has outlined three ways an employee can prove that an incident of same-sex harassment is sex discrimination:

If you’re an out-of-state company that makes New Jersey employees sign employment contracts requiring disputes to be brought in your home state, don’t expect that to stick.

Some bosses are visibly irked when they receive a doctor’s note restricting the work an employee can perform. If the employee notices that reaction and then gets disciplined or fired, watch out for a lawsuit! Her attorney will probably try to link the timing of the doctor’s note and the adverse employment action as proof of discrimination or retaliation. 

Even the best bosses sometimes blow up. An employee slacks off or messes up, and the manager lashes out. Everyone knows such outbursts shouldn’t happen. That doesn’t mean they won’t. How you handle the aftermath may make the difference between a jury trial and a smooth return to workplace normalcy.

Managers and supervisors are at the front lines of making decisions that often trigger lawsuits—promotions, pay raises, terminations and job assignments. But the most legally dangerous of all those situations is interviewing job candidates. Here are five questions that can reveal more about job interviewees, without risking a hiring discrimination charge.

The recession has put the brakes on pay raises in many workplaces. But too many employers have halted performance reviews at the same time. That’s a major mistake. Reason: Discharged employees who sue will have a much easier time getting to a jury trial if you can’t produce evaluations that back up your stated termination reasons.

Some employees with genuine disabilities think they can use their health conditions as excuses to break workplace rules regulating behavior. They can’t, if managers genuinely believe the employee violated the rules, and those rules are clear and equitably enforced.

Human resources professionals know the importance of evenhanded discipline. But other managers may not be so careful, often preferring to issue casual and informal warnings that aren’t recorded anywhere, only to insist on more severe sanctions when they perceive employees crossing some indefinite line. When that happens, you run a real risk of facing a disparate treatment lawsuit.

In the days before ending its 2008-09 term, the U.S. Supreme Court issued two important employment law rulings. Now it's harder for employees to win age bias lawsuits. Also, the court ruled on race bias in pre-hire testing.

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 …

Discipline one day after complaint? See you in court ... Obscure terms could trigger race-bias suit ... Teach front-line staff how to handle legal papers ... Employees can have more than one "employer" ... Employee is her own lawyer? Don't pull punches.

Many employers have rules that prohibit off-duty conduct that may reflect negatively on the company. But even with such policies, it’s tricky to discipline employees for the things they do on their own time away from the workplace. In fact, you’re free to use discretion in deciding whether an employee should be warned, suspended or terminated.

In the pre-Internet days, trying to prove an employee acted in an insubordinate manner often spiraled into a he-said/she-said debate. But now that much of our workplace communication is via e-mail, texts and IMs that can be recovered, it’s easier to gather the evidence you need to win in court.

Q. An employee has asked me, as his direct supervisor, to provide him a recommendation on his LinkedIn page. He’s a good employee and I don’t see any harm in granting his request. Are there any risks?

Are some of your organization’s supervisors still stuck in the Dark Ages when it comes to attitudes about pregnancy, childbirth and child care? If so, your organization may be a few off-base questions away from triggering a discrimination lawsuit. Remind managers and supervisors to keep their opinions on mothers and motherhood to themselves.

Progressive discipline is a system in which penalties increase upon repeat occurrences. But don’t pick and choose which employees you run through progressive discipline. It’s critical to apply those procedures to all employees or none, as this new case shows ...

Here’s a good reason to be careful about disciplining employees right after they complain about possible discrimination: A court may view the timing as so suspicious that it won’t  toss out the case early. Then it will be up to you to prove the complaint and discipline weren’t related.

It’s one of the sad realities of today’s litigious world: Even when you win a lawsuit, you’re seldom able to recoup all your legal fees unless you win big. That’s true even if your opponent is the EEOC and it’s clear it didn’t have much of a case to begin with.

It’s natural for supervisors and managers to become upset when employees accuse them of some form of discrimination. Tell them they must resist the impulse to strike back. It inevitably makes the situation worse. Many forms of managerial punishment may end up being construed as retaliation—which can be far easier to prove than the alleged discrimination that started all the trouble.

Courts take retaliation seriously. In fact, they may hesitate to say an employer discriminated against an employee based on race, sex, age, disability or some other protected characteristic, but they’ll clamp down hard if they have the slightest suspicion that the employer punished the employee for merely alleging discrimination.

When an employee threatens litigation, take your time building the case against him. Make sure you base your decision on solid facts. Double-check to see that there’s no way the employee can claim you singled him out for unfair or inequitable treatment. Then rest easy, knowing that if you’re sued, you can counter the allegations with facts and get the case dismissed quickly.

Government employees are protected from retaliation for speaking out on matters of public importance. That doesn’t mean, however, that every letter to the editor is an exercise in freedom of speech. Indeed, if the letter is about a specific workplace problem between the employee and a supervisor, chances are a court won’t find that to be a First Amendment issue.

In a perfect world, no one would ever utter a slur or make a derogatory comment. But this isn’t a perfect world, and employees come to work with emotional and cultural baggage. It’s up HR to make sure that baggage doesn’t turn into a discrimination lawsuit. 

Q. I recently fired an employee for performance problems. At the end of the termination meeting, he asked for a copy of his personnel file. Do I have to give discharged employees copies of their personnel files?

Rosanne Piatt, an instructor at St. Mary’s University School of Law, recently filed a charge of discrimination with the EEOC and the Texas Workforce Commission Civil Rights Division. She claims the university discriminated against her on the basis of her age and gender.

Be careful if you transfer an employee who filed a discrimination complaint to another position. Even if the new job provides the same benefits and pay, it may look like retaliation if the position comes with fewer advancement opportunities.

When the person who hires someone is the same one who conducts the firing, courts typically discount the idea that discrimination was involved. After all, why would someone who hired an applicant discriminate later because of that person’s age, race or sex? But be aware that the defense doesn’t always work if there is clear discrimination evidence.

Terminations aren’t always clean. Sometimes they’re damned-if-you-do, damned-if-you-don’t situations. That’s often so when you conclude that an employee harassed another and must be terminated. With nothing to lose, the fired employee may try to concoct a discrimination lawsuit.

Every HR pro has to deal with especially difficult and argumentative employees now and then. You may believe an employee is having emotional problems—maybe even a diagnosable mental disorder. But don’t mention your suspicions. You would risk being charged with regarding him as disabled, which gives the employee protections under the ADA or state disability-bias law.

In a decision sure to create a buzz, the 6th Circuit Court of Appeals has ruled that Title VII does not provide retaliation protection for employees who weren’t involved in protected activity.

Ellen Bahr was a supervisor for Capella University and regularly had to evaluate workers in her department. One black woman was performing far worse than the rest of the workers, so Bahr placed her on an improvement plan. Even then, the employee’s work remained below standard ...

Employers have faced more retaliation claims ever since the U.S. Supreme Court made such cases easier to win by ruling that retaliation is an action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” While the federal courts have placed some limits on what constitutes a retaliatory act, they continue to struggle with the question.

There’s good news if you use objective and measurable productivity and goal targets to determine whether employees will receive promotions and pay increases. You can distinguish between degrees of failure to meet those goals.

For years, employers have grappled with what constitutes a hostile work environment and what does not. There’s a way to end pointless arguments about whether speech or conduct is racially offensive—and prevent potential problems down the line. Implement a policy that clearly bans race banter.

Employees who sue current or past employers have the burden of proving that discrimination took place. But that doesn’t mean employers should sit back and wait for employees to fail in court. In fact, you should always be ready to prove that you treated everyone equally.

Punishing an employee for complaining about discrimination is retaliation even if it turns out that whatever the employee was complaining about wasn’t discrimination. That’s why you should include information on avoiding any form of retaliation in all your training programs.

The Pacific Legal Foundation recently filed a lawsuit alleging that Caltrans’ new contract quota program for minority-owned firms is unconstitutional. The suit, filed on behalf of the San Diego chapter of the Associated General Contractors of America, argues that Caltrans did not do enough to show that discrimination was a problem before it implemented the program.

You know that you have to accommodate disabled applicants and employees under both the ADA and California’s Unruh Civil Rights Act. When making those accommodations, think of customers, too. The California Supreme Court has ruled that customers who can’t access your public spaces can sue for damages.

For years, employers have grappled with what sexual harassment is and what it isn’t. Lost in the debate is the fact that a workplace is just that—a place where work is supposed to be done. Here’s a good way to end the arguments about what is sexual harassment and prevent potential problems down the line: Implement a policy that clearly bans sexual banter.

Members of the armed services are protected from discrimination and have re-employment and leave rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). But the law doesn’t require employers to indefinitely continue what amount to voluntary special privileges for service members.

Remember: Pennsylvania employees have just 300 days to file an EEOC complaint.

When a supervisor says something insensitive, employers must fix the problem and then make sure the comment doesn’t reflect some sort of deep bias. Follow up on the comment with appropriate discipline and then check to see that any discipline recommended by the supervisor is based on independently verifiable information.

Employees who are terminated for disciplinary infractions often claim they were singled out because of bias against some protected characteristic. But the fact is, every employee belongs to some protected class—whether based on sex, age, race, disability or another characteristic. The only way to protect against discrimination lawsuits is to thoroughly document every disciplinary action.

When you receive an EEOC complaint, investigate what other claims the employee, applicant or former employee could potentially bring. Courts have been granting more latitude to throw additional accusations into EEOC complaints after the fact.

It happens all the time: An employee sues and the papers show up at the front desk. Unless the employee on duty knows what to do with legal documents, you may lose valuable time preparing a response. Make sure everyone knows exactly where to send legal paperwork.

Q. My company is considering requiring employees to agree to an arbitration clause to resolve any employment disputes, including discrimination complaints. I have been told it is a good risk-management tool for avoiding high legal defense costs and big jury verdicts. Do you agree?

Employees who want promotions or transfers have to request them using whatever method the employer sets. They can’t just casually express their desire for the job.

The Americans with Disabilities Act (ADA) has been in place for almost 20 years and was expanded this year to create even broader protections. If employees know their rights, and courts know them too, why don’t employers? Let’s see how a talk show ended up in the middle of a big courtroom drama …

You and the supervisors at your organization have read horror stories of negative performance reviews spawning lawsuits from disgruntled employees. As a result, some supervisors may shy away from rating someone lower than his or her colleagues. That fear is one main reason too many reviews are positive even if performance is average or poor. The better thing to do is to urge your supervisors to “get real” with reviews.

The federal government has slowly been introducing laws that force employers across the country to provide employee benefits: for example, the FMLA, USERRA and the ADA. Now Congress is considering several legislative initiatives that would require employers to provide additional benefits.

It’s tough being an HR professional during the worst recession in memory. Every day, you have to make tough decisions about pay, hours, layoffs. At least there’s good news from one North Carolina court: HR pros aren’t personally liable under Title VII for any mistake they might make while carrying out their job responsibilities.

The EEOC has sued Chicago-based United Airlines for disability discrimination on behalf of disabled employees.

A legal theory often referred to as the “cat’s paw” holds that an employer can be liable for hidden bias if it merely rubber stamps a subordinate’s discriminatory decision. By conducting an independent evaluation of the situation, you can cut off that liability.

An Atlantic City jury has awarded Scott Jones $1.8 million in his suit against his former employer, South Jersey Gas, after the company dismissed him for poor work performance. Jones claimed his poor performance was due to his battle with depression and that the company failed to discuss accommodations of his condition.

One of the most legally dangerous things you can do after you terminate an employee is change the reason for ending the employment relationship. Instead, decide on a defensible rationale at the time of the termination. Document that decision and all the supporting evidence. Then remind execs and supervisors to stay on script.

If your organization is typical, you’re relying more heavily on internal promotions than in the past. And as greater numbers of existing employees compete for coveted “inside” jobs, expect a corresponding rise in the number of failure-to-promote lawsuits. HR people and managers are aware of the legal dangers in hiring outside applicants. But many forget that internal promotions also carry risks.

The Department of Homeland Security has authorized more raids on workplaces it suspects include undocumented workers—and employers, not the workers, are being charged with breaking the law. At the same time, the NLRB is pushing employers to settle unfair labor practice cases and ordering them to rehire employees terminated for exercising National Labor Relations Act rights. But what happens when those fired workers are actually ineligible to work?

When a new boss suddenly gives a lousy performance review to an employee who is used to getting good reviews, the employee may try to blame the change on the new supervisor’s alleged bias. Absent other evidence, that won’t prove discrimination in court.

Rockford, Ill.-based Area Erectors Inc., has agreed to settle a class-action lawsuit brought by 23 workers who alleged racial discrimination. According to the EEOC, the company laid off black workers while keeping equally qualified and tenured white workers.

Employees who qualify as “disabled” under the ADA have the right to reasonable accommodations to allow them to perform the essential functions of their jobs. But choosing those accommodations requires an “interactive process” between employer and employee. Employers that rush to judgment about the alleged disability or the accommodation request will risk legal trouble.

When faced with an employee who may have a physical or mental disability, a manager's legal antenna should go up right away. The ADA requires employers to engage in an interactive dialog with employees to determine whether a disability can be accommodated. Do it wrong, and you're probably looking at a lawsuit. Here's how to handle the conversation.

President Obama is delivering on his promise of change—particularly in the workplace-law arena. To prepare HR professionals for what’s happening—and what’s going to happen—the HR Specialist is hosting its annual Labor and Employment Law Advanced Practices Symposium (LEAP) Washington Conference Nov. 4-6.

If you have a fairly informal application process, now’s the time to firm it up. The prolonged economic downturn means you’re receiving many more applications and résumés than normal. And that means more potential for lawsuits from unsuccessful job-seekers.

Lots of employers win sexual harassment lawsuits, but not until they have had to air their dirty laundry in public—and pay for the privilege, too. That’s one reason to insist on a professional workplace free of sexual innuendo and harassing behavior. HR performs one of its most valuable services when it impresses on management the high cost of winning a sexual harassment lawsuit ...

In a free-market system, it sometimes takes extra money to entice an applicant to jump ship. But sometimes that causes an existing employee to earn less than a new employee who holds the same job. If that existing employee belongs to a protected class, she may fire off a pay discrimination claim. That’s when interview notes documenting the salary negotiations come in handy.

Many employers are trying to do more with less these days, and that often means moving staff into new roles. Not every employee embraces that kind of change. Some might even see a transfer as some kind of retaliation, especially if they have recently complained about discrimination. Fortunately, courts seldom consider reassignments as adverse employment actions.

Occasionally, employees work up the nerve to complain about sexual harassment only to get cold feet about pressing their complaints. What should you do if an employee complains, but then just asks for a transfer instead of identifying the alleged harasser? That’s the situation one employer recently faced.

The Lilly Ledbetter Fair Pay Act was designed to ensure pay equity for women. It does a whole lot more than that! Learn how this landmark legislation affects all protected employee classes and could influence your employee benefits program.

Before you decide to throw out old evaluations and files, consider this: An employee may sue and refer back to those evaluations from memory. If she remembers nothing but positive performance reviews until a recent poor appraisal (engineered, she believes, to get her fired), you’ll need to be able to show her employment history wasn’t as rosy as she remembers.

The new version of the Employment Non-Discrimination Act (ENDA), H.R. 2981, was introduced in Congress last month and has a good chance of passage this year. It would make it illegal for most public and private employers to discriminate against employees and applicants based on the person’s sexual orientation, gender identity or transgender status.

Job discrimination claims are running at record-high levels in the past two years. Way too many problems start when hiring managers ask the wrong questions during job interviews. Here's how to ask five key questions without risking a hiring discrimination charge. (Plus 16 questions no one should ever ask.)

Your computer-usage policy no doubt prohibits visiting pornographic and other inappropriate sites. But what if someone surfs forbidden sites using a computer that an entire group of employees has access to? That makes it difficult to positively identify the guilty user. Your IT department can provide technical assistance so you can base your investigation and conclusions on facts.

Are some of your organization’s leaders still stuck in the Dark Ages when it comes to attitudes about pregnancy, childbirth and child care? You might be a few off-base questions away from a pregnancy discrimination lawsuit. Remind managers and supervisors to keep their opinions on mothers and motherhood to themselves.

Occasionally, employees (and their lawyers) get more creative than usual when it comes to claiming how they suffered discrimination. Take the following case in which an employee claimed he was being harassed because some co-workers believed all people of his nationality are gay.

Sure, at one time or another, we’ve all worked for some great bosses and some bad bosses. But nothing can be more debilitating than working for someone who is ignorant of the laws. In the following case, a company president walked right into an FMLA lawsuit because he had never even heard of the Family and Medical Leave Act. He knows about it now ...

What's a smart HR professional to do when his or her employer is sued and the records you thought would back up management are gone? You can still save the day by locating different electronic or paper correspondence that supports your decisions ...

Federal anti-discrimination law says employers must try to “reasonably accommodate” employees’ “sincerely held religious beliefs or practices,” as long as the accommodations wouldn’t place an undue hardship on their organizations. What religious practices would be deemed legitimate in the EEOC’s eyes?

Terminating an employee who has been out on workers’ compensation leave is a high-stakes process. How well you handle it can affect your ongoing workers’ compensation liability—and could also subject you to claims of wrongful discharge or retaliation. It’s made all the more complex by the fact that your workers’ comp carrier’s goals may conflict with yours.

Law instructor Rosanne Platt has filed an EEOC and Texas Workforce Commission Civil Rights Division lawsuit against her former employer, the St. Mary’s University School of Law. Platt alleges that her contract was not renewed after her husband filed a lawsuit against the San Antonio law school.

The EEOC recently filed suit against AHD Houston, claiming that Mary Bassi, a waitress at Cover Girls strip club, was fired because of her age. The federal agency brought suit against the strip club’s parent company, arguing that Bassi was fired and replaced by younger servers even though she was popular with customers ...

Employees who are fired have little to lose and everything to gain by filing a discrimination lawsuit. That’s why you should be prepared to show exactly why you terminated an employee and how the punishment fit the crime—especially if others kept their jobs after similar violations.

Some fired employees, unable to move on, file multiple lawsuits against their former employers. If that happens to you, take heart. Courts are starting to drop these cases early. They’re even beginning to consider sanctions against employees’ attorneys.

Employers often get into trouble when they punish someone who has filed an internal harassment or discrimination complaint. But that doesn’t mean you shouldn’t discipline employees for legitimate reasons just because they filed an unrelated complaint. The key is being able to show a good reason for your actions.

The main reason to settle a case is to make the whole thing go away. But when you settle with a former employee, consider the possibility that she may apply for open positions in the future. If you want to avoid a second round of litigation, consider including a “no rehire” clause in the settlement agreement.

Courts give employers the benefit of a doubt when it comes to the qualifications they seek in job candidates, and the questions they ask during interviews. As long as the criteria and questions are job-related and not otherwise illegal, courts grant wide latitude. But once you decide on hiring criteria and use them to rank candidates, resist the temptation to go back and tinker with the rankings.

Here’s a way to guarantee a race discrimination case will go to a jury trial: Let a supervisor with an obvious racial bias participate in the decision to terminate an employee who belongs to the protected class the supervisor dislikes. Even if you have a seemingly legitimate reason to terminate the employee, the supervisor’s involvement will taint the entire process.

Sometimes, the HR business makes for strange bedfellows. Consider what happened in one recent case when the U.S. Department of Justice sued the city of Dayton, claiming its rules for hiring police officers and firefighters unfairly screened out black candidates. The police and firefighters union stepped in to intervene in the litigation.

Employees who lose their jobs have very little to lose by making an appointment with an employment lawyer. To prepare for possible surprises, you should do what a good employment attorney does—look for hidden discrimination in your workplace.

Some employees’ religious beliefs forbid them to belong to labor unions. Because, like employers, unions may not discriminate on the basis of religion, they must make reasonable accommodations for employees who object to any of their pay going to the union.

These are tough economic times, and employers can’t be blamed for cost-cutting measures such as reductions in force. But before you act to trim your labor burden, prepare solid evidence showing exactly why you must cut those costs. You need a clear, written record, since those who participated in the decision-making may not be around to testify if the layoffs are challenged in lawsuits.

Q. One of our former employees filed a discrimination lawsuit against the company. She subsequently filed for bankruptcy, but failed to include the pending lawsuit as an asset in the bankruptcy estate. She eventually obtained a bankruptcy discharge. Will the company now be able to have her discrimination lawsuit dismissed?

If you haven’t recently reminded supervisors to keep anti-female comments to themselves, here’s a recent case
you can cite. Such comments will be viewed as direct evidence of discrimination. That practically guarantees a lawsuit if the employee is ever fired.

It’s usually easy to accommodate employees’ everyday health problems, and employers should always be willing to consider making minor adjustments in work conditions. But be cautious about making accommodations that could affect workplace safety. Allowing an employee to bypass safety procedures or have a co-worker help her with them is almost always a bad idea.

Claims of pregnancy discrimination have gained attention again with the U.S. Supreme Court’s recent decision in AT&T Corp. v. Hulteen. In light of the decision, now is the time to conduct an audit of your practices, policies and plans to make sure they comply with the  Pregnancy Discrimination Act ’s requirements.

Here’s added incentive to handle terminations and other employment actions at the local level. When employees sue, their attorneys often look to expand the lawsuit beyond one person. They’re trying to find larger patterns of discrimination. This strategy can sometimes succeed if higher-ups in the company made the decision and based it on a common policy or framework.

Employees who want to file a discrimination complaint have to meet tight deadlines. They have just 90 days after receiving an EEOC “right-to-sue” letter to start their lawsuits. A perceived threat from an employer —such as a statement that it will “dig up” everything it can about the employee—doesn’t excuse missing the deadline.

Since employees get attorneys’ fees when a court determines employers violated their rights, it seems reasonable that employers should get attorneys’ fees when they have to waste time and money on frivolous litigation. It turns out some courts are beginning to entertain such requests.

Ever since the Supreme Court decided the White v. Burlington Northern case in 2004, retaliation lawsuits have been all the rage. But lately there’s been good news for employers. Courts have been refining the retaliation standard for almost five years and have begun concluding that truly minor work changes aren’t retaliation.

Before an employee can sue for retaliation, she has to show she participated in some form of protected activity—filing an EEOC or internal discrimination complaint, for example. But what about refusing to cooperate with an employer’s investigation?

Suburban Chicago-based Ceisel Masonry has settled a race and national-origin discrimination suit with the EEOC for $500,000.

An employee who belongs to a protected class can win a discrimination lawsuit if she shows that a similarly situated co-worker who doesn’t belong to the same protected class got more lenient treatment than she did for the same rule violation or behavior. Therefore, be prepared to show in every case that you treated all employees equally.

The New Jersey Law Against Discrimination makes age discrimination illegal, but it also says “nothing herein shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age.” Now a court has decided that exception doesn’t apply to continuing employment.

A court has ruled that employees who file harassment and discrimination lawsuits can’t tack on charges of negligent infliction of emotional distress. Instead, the court said emotional damage claims allegedly caused by negligence are the sole province of the New Jersey workers’ compensation system.

In a pair of 3rd Circuit Court of Appeals cases, the court has made it clear that it has little tolerance for political appointees who clearly understand they serve at the pleasure of their elected officials and still sue when they are terminated, alleging some form of discrimination.

A New Jersey appeals court has upheld the termination of an employee even though a government agency cleared him of the alleged misconduct that led to his dismissal. That means employers still have the right to make their own decisions about conduct and what they believe happened.

Q. To prevent productivity and morale problems, we would like to adopt a policy stating the company will not hire the spouses of current employees. Would this be lawful?

Sometimes, you have to make workplace changes because of outside factors. If those changes are going to affect a disabled employee’s job, proceed with caution. Make sure you can come up with a concrete, reasonable rationale for your decision—that shows it was unrelated to the employee’s disability.

Durham-based lumber and hardware retailer Talbert Builders has agreed to settle a race discrimination suit with the EEOC for $80,000. The original complaint was filed by employee James McCombs ...

For the second time in a year, a North Carolina Compare Foods store has settled discrimination charges with the EEOC. As in the earlier case, this one—involving a store in Statesville—involved accusations that workers had been fired because they weren’t Hispanic.

Here’s a bit of good news: Employees who believe that their co-workers have discriminated against them or harassed them on account of their protected characteristics can’t sue under both Title VII and state tort laws. That takes away one potentially expensive avenue for recovering damages.

Are Pennsylvania employers ready for yet another category of protected employees? Another bill has been introduced in the General Assembly that would protect all Pennsylvanians from employment discrimination based on sexual orientation or gender identity or expression.

Tullytown-based Meenan Oil has settled an age discrimination suit filed by 72-year-old Louis Ceccoli, who was fired and then replaced by a substantially younger worker. Ceccoli built his case on derogatory comments his sales manager made about older workers.

Q. Every summer, we hire youth lifeguards for our municipal pool. We hold training on Sunday evenings. A couple of applicants said they can’t attend that time for “religious reasons.” It’s not a conflict with a religious activity—only family time. If we deny them the job, are there any religious discrimination implications?

Q. I have heard about a new federal law that makes it possible for a nonemployee to sue our company for discrimination. Is that correct? How could such a claim come up and is there anything we can do about it?

When the New York Mets play in Philadelphia, they stay at the Westin Philadelphia in Center City. In August 2007, John Dunlap was staffing the hotel’s front door when he attempted to move the ropes back to make more room for the entering ball players. That’s when a New York fan cursed at him—and that's where the trouble began ...

Q. We have an employee who has missed the last several days of work without notice. We also have a policy that says employees who miss three days without notice are deemed to have resigned and are terminated. Are there any legal risks associated with terminating this employee?

If you develop a reasonable retention policy and follow through by regularly deleting information you don’t need, chances are an employee later won’t be able to say you intentionally interfered with the ability to present a legal case ...

If you’ve ever been caught up in an employment lawsuit, chances are you couldn’t wait for it to be over. Yet every case presents a valuable opportunity to prevent future problems and improve HR effectiveness by conducting an “autopsy” of the claim.

The economy is still funky. Unemployment continues to rise. And, with Boomers entering their retirement years, some of those older laid-off employees are crying foul. In fact, the EEOC last year reported a shocking 29% rise in age discrimination claims. The good news: A recent U.S. Supreme Court decision made it more difficult for employees to win such cases, as the following case shows …

In 2007, the EEOC released a set of guidelines advising employers on issues related to caregiver bias. Following up on that issue, the commission has supplemented those guidelines with recommendations designed to help employers “reduce the chance of EEO violations against caregivers.” It’s imperative that companies begin to train managers and supervisors on the content of this most recent guidance.

Last year, U.S. employees filed a record number of legal complaints claiming they suffered discrimination at work. You know that U.S. anti-discrimination laws require managers to treat all applicants and employees equally. But what, specifically, do the laws require of supervisors and managers? Here’s a rundown:

Employers expect employees to get to work on time. Occasional problems with traffic or family issues sometimes make employees late. But chronic tardiness is another thing altogether. While most employers track tardiness occurrences, they should do more. How?

According to an EEOC lawsuit, when new management took over Club Gabys in Pembroke Pines, Fla., it stated its intention to “get rid of all the old and ugly people” and presumably replace them with young, beautiful and charming people like themselves ...

We all understand that in a free-market system, it sometimes takes extra money to induce an applicant to leave one job for another. That’s all part of the hiring dance. But sometimes the end result is that an existing employee ends up earning less than a new employee who holds the same or a similar job and may sue for discrimination.

If you punish two employees differently for what looks like the same rule violation or mistake, you’d better be prepared to explain why. If you are later challenged, you should be able to show that the two weren’t “similarly situated” and prove you didn’t favor one over the other.

When HR investigates discrimination complaints, you don’t have to act like a court of criminal law, deciding whether an employee is telling the truth “beyond a reasonable doubt.” So don’t feel paralyzed if a discrimination investigation boils down to one employee’s word against another’s. Use your best judgment to decide who is telling the truth and go with that judgment.

When an employee announces she’s pregnant, it’s important for HR and supervisors to know what they must do—and what they can’t do (or say) under federal anti-discrimination and leave laws. Most employers must comply with the Pregnancy Discrimination Act and the FMLA. The ADA may apply if pregnancy complications arise.

Discipline and termination meetings are emotionally charged events that carry the potential for nasty words, hurt feelings and even legal troubles. As a manager, you never know how employees will respond to discipline or firings. But you need to be prepared for anything—including employees who “let it all out” in long, loud rants. Follow these four do’s and don’ts to defuse rants and avoid lawsuits:

As an employer, you’ve probably learned to ignore apparent disabilities because you could end up violating the ADA if you inquire about disabilities. That doesn’t mean, however, that you’ll run afoul of the law if you do something as simple as offering assistance to an applicant who is having trouble navigating stairs or getting on the elevator.

It often makes sense to give a fresh start to a poorly performing employee who has been complaining about discrimination. Place her in another position with a new supervisor, new co-workers and a clean disciplinary record. Then if her workplace problems persist, you can terminate her without worrying about retaliation claims.

Some employees think they know their jobs better than their supervisors do. They want to decide which parts of their jobs are important and which parts are not. Then, when evaluation time rolls around, they try to show that they achieved their own goals for their jobs—even though management wanted other goals met. Don't let this happen.

It’s important to let your supervisors know they should be careful about handling job reference queries involving poorly performing employees. In fact, it’s best if they refer all inquiries about ex-employees to HR. As the following case shows, it’s best to let the potential new employer reach its own conclusions about the worker.

WTXF TV news anchor Tom Burlington has sued his former employer claiming discrimination after he was fired for using the “N-word” in an editorial meeting called at the Philadelphia station to discuss a news story about a mock funeral to bury the “N-word.”

When employers investigate discrimination claims, they don’t have to act like courts of criminal law, deciding whether an employee is telling the truth “beyond a reasonable doubt.” Don’t feel paralyzed if a discrimination investigation boils down to one employee’s word against another’s. Use your best judgment to decide who is telling the truth and go with that judgment.

The difference between winning lawsuits and losing them often comes down to good record-keeping. When an employee sues for discrimination, for example, a solid discharge reason will trump the allegations unless the employee can show it was false or that others weren’t discharged for similar problems.

Most of the time, employers can win discrimination cases by showing that the same “actor” hired and fired an employee. Courts generally assume that the employer’s stated reason for discharge is the true reason and not an excuse to cover up discrimination. That doesn’t mean, however, that you can be loose with your discharge reasons.

Q. When I check a prospective employee’s job references, more and more I find that prior employers are unwilling to give any information other than confirming dates of prior employment. It makes it really difficult to accurately screen job applicants. Isn’t there a law that protects an employer that provides a job reference?

Employers that want to make sure their termination decisions stick should carefully track each step of the underlying investigation. That’s the only way they can show a court they acted in a “reasonably informed and considered” way. Here’s how to document your investigation:

In today’s down economy, nearly every termination and layoff is fraught with risk. Layoffs are supposed to be blind on issues of race, sex, age, etc. But, if you are making these decisions in the dark, you are making a big mistake that could prove very costly. Before implementing a layoff, it’s crucial to review the demographics of who is staying and who is leaving.

You never know which employee will sue you, or when. Take, for example, promotion opportunities. Employees who aren’t picked may think the reason was discrimination. Then they sue. How will you support your promotion decisions?

Employers are often advised to have the same managers who hired an employee also make the termination decision. The idea is that doing so may scuttle a discrimination lawsuit because it’s illogical for a manager to hire a member of a protected class and then turn around and fire him because of bias against that protected class. Don’t use it as an excuse to get sloppy with record-keeping and documentation.

It should come as no surprise that employees look for subtle as well as blatant retaliation. In one recent case, the employee thought that being asked to fill in (without being paid extra) for another employee who was on maternity leave was retaliation for her own discrimination complaint.

Employees who can’t come to work at all because of a disability can’t perform the essential functions of their jobs. Someone who is so incapacitated they cannot work can be discharged.

One of the worst things you can do after you terminate an employee is change the reason for ending the employment relationship. Instead, decide on a defensible rationale—a performance problem or rule violation, for example, or perhaps a business downturn—and document that decision and all the supporting evidence.

When the 7th Circuit Court of Appeals, whose decisions cover Illinois, began acknowledging the “cat’s paw” theory of discrimination, it appeared to open employers to greater liability.

Sometimes, employees think all it takes to keep from being fired is a well-timed complaint alleging discrimination, harassment or retaliation. That, they reason, will scare an employer into overlooking poor performance or even criminal behavior. Don’t fall for it.

Q. As a law enforcement agency, we have several employees who want to wear religious garb with their uniforms. Our uniform regulations do not provide any accommodation for religious symbols or dress. Can we require strict compliance with the uniform regulation without violating religious discrimination laws?

Don’t think that just because an employee has filed an internal or EEOC discrimination complaint, you have to treat him with kid gloves. You can and should manage the employee just like you would any other staff member. Rest assured, issuing a reprimand or other mild disciplinary actions isn’t enough to support a retaliation lawsuit.

Employees have the right to practice their own religious beliefs—and not be subjected to proselytizing by their supervisors or others with influence over their work. Constant exhortations to be “saved” or otherwise renounce religious beliefs can create a hostile religious environment and great potential for a lawsuit.

When you settle a lawsuit involving discrimination or some other employment matter, you typically want that to be the end of it. But what if the former employee applies for an open position? Avoid a second lawsuit by including a condition in the settlement that bars the employee from ever seeking employment with the company again.

In a case that illustrates why you should review all your employment decisions for potential hidden bias, a California appeals court has ruled that employees can use other employees to testify that they, too, were discriminated against in the same way.

The Kinston-based Britthaven nursing home and assisted-living chain has settled a pregnancy discrimination claim with the EEOC for $300,000. The agreement settles a lawsuit brought by Katherine Hance and other pregnant employees who claimed they were treated differently from other employees ...

Some part-timers naturally want to move up to a full-time position. But when they apply and aren’t selected, they may claim they were turned down because of some form of discrimination—even if the real reason was that they weren’t performing well in their part-time roles.

North Carolina’s Equal Employment Practices Act (EEPA) provides that “it is the public policy of this State” to protect employees from discrimination. Until now, it was unclear how far the law went in giving employees the right to directly sue their employers.

Employees are entitled to a workplace free of discrimination. That includes having equal access to training. For example, favoring some employees for training opportunities at the expense of other employees who belong to a protected class may cause a discrimination lawsuit.

Most applicants who aren’t hired just go away. But sometimes they don’t—and then it’s time to watch out! A rejected applicant can play the discrimination card, possibly costing you an expensive jury award. That’s one good reason to check your hiring practices for hidden bias.

Relatively few lawsuits—including discrimination and employment-related cases—are actually tried in a courtroom. In most cases, the parties reach a private settlement. But what happens if the parties reach a settlement and the employer holds up its end of the bargain, only to have the employee have second thoughts and bring another lawsuit?

On April 1, the U.S. Supreme Court held that arbitration provisions in collective-bargaining agreements that clearly and unmistakably require arbitration of Age Discrimination in Employment (ADEA) claims are enforceable.

Q. Carlos, a longtime Latino employee, frequently complains that he is paid less than his white, non-Latino counterparts. He blames this pay discrepancy on a previous supervisor who allegedly denied him several promotions in the late 1990s because of his national origin. I have heard about the Lilly Ledbetter Act. Could it affect us in this case?

All of a sudden, the retirement nest egg you’ve been building all these years might not be enough. And you probably have less time left to make up for lost ground than most of your other employees. That’s especially true if you haven’t been able to max out on plan contributions in the past. Strategy: Add an “age-weighted” feature to a profit-sharing plan.

If your organization doesn’t have a solid performance evaluation system in place, you’re taking a high-stakes gamble you just might lose. Discharged employees who sue will have a much easier time getting to a jury trial if you can’t produce performance evaluations that back up why you terminated them.

Title VII protects employees from discrimination based on sex, and sexual harassment is sex discrimination. That doesn’t mean, however, that every unwanted work relationship is sexual harassment. As a recent case shows, an obsessive interest, unrelated to sex, by one employee in another isn’t prohibited.

Employees have the right to voice concerns and complaints about perceived workplace discrimination. But employers have rights, too. Employees don’t have the right to communicate their concerns in ways that are disruptive, insubordinate or that otherwise violate reasonable company policies. You can punish employees who don’t play by the rules.

Spend any time scanning the world’s 112 million blogs and you’ll find plenty of employees discussing their work. Sometimes that spells legal trouble for employers. By implementing an effective company blogging policy, you may avoid many of the pitfalls ...

Have you ever felt that punch-to-the-stomach feeling of clicking “Send” and realizing you sent an e-mail to the wrong person? That usually causes only mild embarrassment. But as the CEO in the case below learned, one misguided e-mail mixed with some poor judgment can stir up a potent legal stew …

The economy is a shambles, and employers are doing everything they can to stay in business. That includes terminations, salary and wage cuts and temporary furloughs. Nearly every one of those moves carries litigation risk. Have your company’s personnel policies and practices had a checkup lately? A comprehensive audit is one of the easiest ways to spot problems.

When employees approach retirement, they sometimes go on autopilot, frustrating everyone involved, including co-workers and supervisors. But you can demand productivity from such employees and discipline them accordingly. Just be prepared to take special steps to stay away from age bias claims.

Duane Reade, the New York/New Jersey drug store chain, has agreed to settle an EEOC lawsuit alleging that it allowed the work environment at one of its New York stores to become hostile by subjecting several female employees to sex and pregnancy discrimination.

In an important employer victory, the U.S. Supreme Court ruled in June that for employees to successfully bring Age Discrimination in Employment Act (ADEA) lawsuits, they must now show that age discrimination was the cause—not just one of several possible contributing factors—of their termination or other adverse job action.

The EEOC essentially exists to prevent lawsuits by independently investigating discrimination claims and then trying to settle as many disputes as possible. Not surprisingly, the EEOC and its sister agencies often come to believe a discrimination problem exists and then urge employers to settle. Know that you don’t have to agree to settle.

Under the Lilly Ledbetter Fair Pay Act of 2009, each paycheck that unfairly pays a worker less than it should is a discriminatory act. Now is the time to audit your pay policies. Involve your attorneys—to take advantage of attorney-client privilege protection while you correct any discriminatory practices you uncover.

The more reasons you can dream up to fire an employee, the better. Right? Think again. Firing someone for one obvious rule violation will stand up better in court than a laundry list of petty transgressions ...

In what some employment law attorneys are calling one of the most important employment law cases of the decade, the U.S. Supreme Court ruled on June 29 that the city of New Haven shouldn’t have thrown out promotion test results of all firefighters just because it feared the test would have a disparate impact on black firefighters. What's the practical impact? Read on ...

Siding with employers, the U.S. Supreme Court recently ruled that union contracts could bind employees to arbitrate discrimination claims under federal law. The court ruled against a group of fired night watchmen in New York who wanted to pursue age discrimination lawsuits in court.

Test your knowledge of recent trends in employment law, comp & benefits and other HR issues with our monthly mini-quiz ...

Q. We need to cut two employees from our marketing department. One of the employees we would prefer to keep was hired only six months ago. If we don’t base our decision on seniority, are we more susceptible to discrimination claims?

If discrimination has always been a head-in-the-sand issue for you and your organization, it’s time to get serious about your policies and practices. Discrimination complaints of all types—race, sex, age, etc.—have climbed as steeply in the past year as the economy has fallen. Don’t get caught flat-footed.

You don’t have to tolerate foul language ... Customer gripe caused firing? Get it in writing ... Ledbetter Act already spurring more pay cases ... Track when you notify worker of firing ... No signature? Settlement may still be binding.

The U.S. Department of Labor has settled with Triple B Cleaning, a Houston company, that it claims illegally fired an employee who had complained about workplace safety issues to local news media.

The EEOC and state and local agencies have been filing more administrative charges in recent years. As the recession deepens and more people lose their jobs, that trend is likely to continue. Because administrative charges can be precursors to discrimination lawsuits, it’s critical for you to handle them properly. These 10 tips will help you prepare to respond:

Many supervisors and managers have yet to learn they shouldn’t make any comments about an employee’s EEOC or other discrimination complaint. Remind supervisors that any comment about employees’ legal claims can be retaliation—and retaliation is much easier to prove than actual discrimination.

Always investigate a co-worker harassment claim right away. If you find a problem, fix it immediately. A rule of thumb: If co-workers say things that most people would find inappropriate, chances are the terms really are offensive—and likely to create legal liability. Most common slang for race or ethnicity is likely to cause trouble.

If you’ve agreed to settle a discrimination claim, here are some steps that prove you’re serious about maintaining a discrimination-free workplace. Taking these steps can short-circuit efforts to hold you in contempt of court for not doing enough to prevent further problems.

A jury recently awarded $900,000 to a former employee of the Texas Commission on Human Rights, which is responsible for enforcing anti-discrimination laws, for firing her in retaliation for complaining about discrimination against the agency’s own employees.

Nothing is more frustrating than having to spend time and money defending a frivolous lawsuit. But courts are becoming just as frustrated as employers, and are increasingly assessing costs against employees who lose their lawsuits. You can’t get your time back, but at least you can recover some of your money.

If you have a fairly informal job application process, now’s the time to firm it up. The prolonged economic downturn means you’re likely to receive more and more applications. And that means more potential for lawsuits from unsuccessful job seekers.

Employees are often quite sophisticated about their legal rights—especially when they suspect their jobs may be on the chopping block. When they think of the lawsuit possibilities, they may even try to set up their employers. One easy way
to get a case going is to blow the whistle on alleged wrongdoing.

Sometimes, one or two stupid comments are all it takes to fuel a lawsuit. Take, for example, talk that could be construed as ageist. It isn’t unusual to hear managers and supervisors throw around the word “dinosaur” or use the term “fresh blood” to describe changes to the workforce. Is it code for age discrimination?

Don’t hesitate to turn an investigation over to an expert from outside the organization when there is any doubt about fairness. Doing so may short-circuit a lawsuit. An independent investigator helps maintain the credibility of the investigation and might be able to spot well-hidden discrimination.

The city of Dayton and the U.S. Department of Justice (DOJ) have agreed to settle a race discrimination suit over the city’s hiring practices at its police and fire departments.

It’s time to check your policy on maternity leave. An Ohio appeals court has ruled that it may be discrimination if you don’t provide maternity leave to employees who don’t qualify for your usual leave plan because they haven’t been on the job long enough.

When it comes to a racially hostile environment, management must stay on top of the situation. As soon as anyone in HR or upper management gets even the slightest hint that hostile bias has reared its head on the front line, jump into action.

Treating disabled employees differently than others raises all kinds of red flags that disability discrimination may be afoot. For example, setting higher standards for disabled employees than you do for others is a surefire way to end up in front of a jury, as the following case shows.

Because juries are notoriously unpredictable, most attorneys advise doing everything possible to avoid jury trials. Even so, juries often wind up deciding employment law cases because of the subtlety of the issues involved. In the following case, the Minnesota Court of Appeals sent a case to trial so a jury can decide whether taking away an employee’s telecommuting opportunity might be retaliation.

It’s fairly common for someone accused of sexual harassment to counter that, in reality, he was the one who was being harassed. Then he gives HR a detailed complaint and a lengthy list of people to interview. Don’t let this tactic dissuade you. Instead, complete your investigation just as you would any other.

For more than a decade, Minnesota courts have recognized a person’s right to privacy. Most employers are aware that this right extends to the workplace, but many still run into potential employee-privacy trouble. But with some upfront planning and consideration, HR professionals can help their organizations avoid privacy pitfalls and still protect their interests.

Your documentation of an employee's chronic tardiness will prove its value if you fire the employee and she sues for some kind of discrimination. If you can show you let the employee know about your concerns and the consequences, rest assured she would have a hard time winning her case.

If you have a manager or supervisor whose decisions have caused lawsuits that you have lost, be on your toes the next time that manager has to make an employment decision. Make absolutely sure that you can pin the decision on some objective reason.

Employers that decide to settle harassment and discrimination claims, take note. The broader the settlement agreement language, the less likely the employee will turn around and file a new lawsuit. Always have an attorney approve settlement terms to make sure they are as broad as possible.

Sometimes, employees claim protection from religious discrimination based on very unconventional beliefs. No matter how unusual, employers must reasonably accommodate those beliefs unless doing so causes an undue hardship. Employers should be prepared to show why it would be a hardship before terminating the employee.

Gainesville’s broad anti-discrimination ordinance survived a referendum that would have stripped all protections for gay, lesbian, bisexual and transgender residents. Over 58% of those voting elected to keep the existing ordinance.

It may be tough, but supervisors must avoid the temptation to lash out when they learn that a subordinate has filed an EEOC or other discrimination claim. Tell them not to discuss the matter with the employee. Instead, let HR and the lawyers handle the problem. It isn’t worth the risk of triggering a retaliation claim.

Here’s an important reminder to managers and supervisors who interview candidates and use subjective characteristics to make hiring and promotion decisions: They’d better be able to explain exactly what led them to make the decisions they made. Interviewers should keep careful notes, including the specific questions they asked, as well as how the candidate answered the question.

If you haven’t looked carefully at how you determine compensation, here is another reason to do so soon. Employers that can show a court they set salaries based on logical, fair and unbiased factors are likely to win Equal Pay Act lawsuits. That’s because the EPA outlaws sex discrimination in pay, but allows employers to use factors other than sex to set pay rates.

Employees can sue for discrimination only if they can show they suffered an “adverse employment action.” In other words, they have to show that their employers somehow did something that affected their jobs—such as a demotion, discharge or pay cut. Merely criticizing an employee’s performance isn’t enough if it isn’t accompanied by something more substantial.

It’s been many years since a big sexual harassment case hit the Supreme Court. That’s no reason for employers to rest easy. Regularly review your sexual harassment policy to make sure it’s doing what it should do. Don’t forget to train new managers and supervisors on how to handle complaints, especially those who have recently been promoted from lower-ranking positions.

Whistle-blowing employees almost always expect to experience retaliation. They start looking for it as soon as they file a complaint or bring a safety issue to their employers’ attention. Smart employers anticipate this and make absolutely sure that any discipline, layoff or other adverse employment action is wholly justified before they implement it.

Employers that use an employee’s long-ago military service against him may be liable under the Uniformed Services Employment and Reemployment Rights Act. USERRA isn’t just for those who served in Iraq and Afghanistan.

If you haven’t heard anything lately from a former employee who griped about discrimination, don’t breathe easy yet. Michigan employees have up to three years to bring claims under Michigan’s Elliott-Larsen Civil Rights Act and Michigan’s Persons with Disabilities Civil Rights Act.

A jury recently awarded a fired employee more than $10 million in punitive damages for age discrimination after what may seem like fairly insignificant ageist talk. Although the court has said the award should be lowered, the employee will still collect more than $6 million in compensatory damages.

Poor attitudes among managers and supervisors can infect the rest of an organization, and courts are becoming more aware of the adverse effects of such so-called “poisoned wells.” As the following case shows, when higher-ups in the organizational hierarchy display signs of discrimination, those lower down may act on those signs.

Sometimes, you may want to discipline or discharge an employee because of customer complaints. Get those complaints in writing—you may be able to use the letters as evidence that proves you sincerely fired the employee based on the complaints.

Months or even years after the fact, it can be hard for managers to remember what happened during a job or promotion interview. That can be a problem if they have to recall in court the interview and the decisions that resulted. And that can add up to unconvincing testimony, which can cause juries to doubt their sincerity and honesty—and therefore conclude the organization was discriminating.

Employers have great leeway when it comes to discharging employees. But many employers get into trouble by failing to conduct a thorough and fair investigation. If the employee can prove the investigation was so cursory that it was just an excuse to cover up an illegal motivation such as age discrimination, the employer may lose big.

The ADA protects disabled employees from discrimination, but it’s up to the disabled employee to come forward. Employers can’t be expected to be clairvoyant. Smart employers find a way to track those disclosures. Here’s an example of why that’s important:

Employees who are disciplined sometimes think they’ve been treated unfairly. Some inevitably look for some nefarious reason—like sex, age or race discrimination—to explain the injustice they suffered. And when their lawsuits reach court, you’ll have to turn over your disciplinary records...

Auto parts maker AW North Carolina has offered buyouts to all 1,100 employees at its Durham Treyburn Corporate Park location. The company is hoping 500 employees will accept the offers, leaving the supplier with a leaner workforce more in line with industry standards.

Here’s an important thing to remember if your organization is hit with a series of discrimination cases: Even if some are legitimate, that doesn’t mean every member of a protected class can sue.

If an employee suspects his manager of bias, you can’t expect him to go to that particular boss to make a complaint. And you can’t expect to escape a lawsuit if you discipline the employee for going around the boss to report his concerns.

We can’t say it often enough: Employees can lose discrimination claims and still end up winning big because their employers retaliated against them for complaining in the first place. Don’t let that happen at your organization. Develop a plan to stop retaliation dead in its tracks ...

Some people have more trouble than others managing personal relationships. When such a person has a supervisory role, the result can be disastrous. Don’t fear discharging a lousy manager based on what you observe or find out following an investigation.

State Assemblyman Anthony Chiappone has introduced a bill that would amend the New Jersey Law Against Discrimination (NJLAD) to bar employment discrimination based on an applicant’s or employee’s credit history or financial status.

The New Jersey Senate Labor Committee has unanimously passed a bill requiring the state to establish a “Senior Labor Task Force” to study, evaluate and make recommendations in four key areas affecting senior citizen employment in New Jersey.

Fired employees with vengeance on their minds often go looking for a reason to sue. They often latch on to the charge that they complained about discrimination and then were punished. As the following case shows, it takes more than a casual mention of diversity to constitute a protected action.

Despite the daily economic lamentations, some employers are still hiring. Employers that are hiring may think they are in the catbird seat because they may have hundreds of applicants for each position. But a bonanza of applicants is no excuse for shoddy hiring practices.

Managers aren’t only responsible for an organization’s fiscal assets, they’re also responsible for its human assets. According to a recent Adecco report, here are 13 simple ideas you can implement today to become a more effective manager:

Say a company exec asks you to hire his relative or friend, or he not so subtly urges you to give the application “strong consideration.” You want to reject the candidate because he’s obviously unqualified. But you don’t want to commit career suicide. What do you do?

If you have ever been tempted to fire an alleged harasser just because you suspected the alleged victim might sue, consider this: The 2nd Circuit Court of Appeals has concluded that fear of being sued is no excuse for firing a suspected harasser without investigating.

The Star-Tribune, one of the 20 largest newspapers in the country, has signed on to a class-action settlement agreement involving two women who filed sexual harassment charges against the company. The agreement was worked out by the EEOC after two women working in the mailroom claimed they were subjected to a sexually hostile work environment.

When it comes to whom you employ, pay no attention to your customers’ preferences if they lead you to make illegal decisions. Simply put, employers can’t consider what race or ethnicity their customers or clients would prefer when making hiring decisions. That would be discrimination.

If you need more incentive to persuade supervisors to stop making negative comments about employees’ ages, consider this: A jury recently awarded a fired employee more than $10 million in punitive damages for age discrimination after what may seem like fairly insignificant ageist talk.

The recession has plenty of employees distracted and anxious—about their jobs, their 401(k)s and their monthly bills. That’s not good news at a time when you need to squeeze every ounce of productivity from your employees. These 14 tips can motivate shell-shocked employees.

A former manager at Tyler Roofing Co. recently filed suit against the company, claiming that his employment was terminated because he missed work to receive cancer treatments. He sued for disability discrimination and violations of the FMLA in the Eastern District of Texas.

Do you assign points or scores to rank candidates during their interviews? If so, do you explain in writing why the applicant received each score? A new court ruling says you’d better back up those numbers with an explanation or you might just lose points in front of a jury if you’re sued for discrimination.

Title VII protects employees from discrimination based on sex, and sexual harassment is sex discrimination. Essentially, the law protects employees from harassment because of sex—and that can include same-sex harassment. But at what point do friendships among co-workers run the risk of slipping into dangerous territory?

Do you have employees who are required to drive as part of their duties? What should you do if they start taking prescription painkillers? Do you have to still let them get behind the wheel in order to avoid an Americans with Disabilities Act (ADA) claim? Or can you fire them for not being able to perform the essential functions of the job?

Terminating a pregnant employee because she has minor medical restrictions can be very expensive. The move may mean you have to make the employee financially whole—plus pay a large punitive damage award and attorneys’ fees. Here’s the best way to handle temporary medical restrictions associated with pregnancy:

Employers expect employees to get to work on time. Occasional problems with traffic or family issues sometimes make employees late. But chronic tardiness is another thing altogether. While most employers track tardiness occurrences, they should do more. How?

This is the time of year when college students start serving summer internships. Often, students offer to work without pay just to get the experience. But does this influx of possible free labor carry hidden risks? Perhaps ...

If an employee asks to be reclassified from nonexempt to exempt, make sure you carefully look at her position to determine her proper classification. If you have a legitimate reason for your classification decision, chances are she won’t be able to win a claim that you discriminated when you refused to reclassify her as an exempt employee.

Chicago-based United Airlines agreed to settle a disability discrimination suit stemming from practices at San Francisco International Airport. The case involved a United policy restricting overtime for workers who had been placed in light-duty assignments.

A Houston manufacturing company has paid $1.6 million in back wages to 1,751 employee, a federal jury in Newark has awarded $2.5 million in damages to 343 sales managers employed by office superstore Staples and even the feds can’t keep overtime law straight. Overtime violations were on the rise this month. Here's a rundown of a few recent cases.

Test your knowledge of recent trends in employment law, comp & benefits and other HR issues with our monthly mini-quiz ...

Experts say Judge Sonia Sotomayor, President Obama’s Supreme Court nominee, will bring a pragmatic perspective on employment law to the High Court if she is confirmed. Here's a rundown of employment law decisions she has rendered from her current seat on the 2nd Circuit Court of Appeals.

Does your organization allow or tacitly condone it (by ignoring it) when employees criticize a co-worker who associates with members of a different protected class? If so, you should be aware that disciplining that employee can bring on a lawsuit.

The FMLA now requires employers to give employees serving in the military (or who are next of kin to service members) up to 26 weeks of unpaid leave under specific conditions. While few employers begrudge military families such leave, unforeseen leave can pose scheduling problems as employers come into the summer vacation season.

High-end retailer Nordstrom has settled an EEOC lawsuit alleging it allowed harassment of Hispanic and black employees at its Palm Beach Gardens and Wellington stores. Ten former employees will share in the $292,000 settlement.

The Supreme Court has ruled that women whose retirement benefits are worth less because they weren’t credited for time spent on maternity leave before enactment of the Pregnancy Discrimination Act can’t sue to recover lost funds. The decision in AT&T Corp. v. Hulteen generally followed the reasoning the High Court used in its landmark Ledbetter v. Goodyear Tire & Rubber ruling: If a policy was legal at the time alleged discrimination occurred, employees can’t challenge it retroactively.

The Supreme Court on May 18 ruled that women whose retirement benefits are worth less because they weren’t credited for time spent on maternity leave before enactment of the Pregnancy Discrimination Act can’t sue to recover lost funds. Learn more about a case with important implications for benefits programs.

In a textbook illustration of the perils of downsizing, a group of female executives has filed suit against beleaguered banking giant Citigroup, charging the bank’s layoffs hit women executives harder than men. That, attorney Douglas Wigdor told Forbes.com, is “recessionary discrimination.”

A recent report offers some ominous news for Illinois employers. Illinois is one of eight states that saw an increase in class-action wage-and-hour cases filed in state court last year, according to the Seyfarth Shaw law firm’s new Workplace Class Action Litigation Report.

An employee who files a discrimination complaint is protected from retaliation. But that doesn’t mean employers can’t make everyday moves—such as transferring someone who once complained of bias—without risking a lawsuit.

A federal court has sided with the EEOC in a disability discrimination case involving the Macomb store of auto parts retailer AutoZone. The case involved a store manager, John Shepherd, who suffered from back and neck injuries that limited his ability to lift or rotate his upper body.

When employees claim they were forced to work in a racially hostile environment, the law says they can go back far into the past to show a pattern of harassment. Taken together, isolated acts that wouldn’t be severe enough to create a hostile environment may create liability. But an employer doesn’t have to be a hostage to its past.

You might have rogue managers in your midst without even knowing it. If one of your supervisors has it in for a subordinate for discriminatory reasons, and you rely on his recommendation to terminate an employee, you may be in trouble.

If your organization operates several shifts to get its work done, you probably have a system in place to make sure shift assignments are drawn up fairly. If you don’t, consider implementing such a system now.

Some conditions aren’t serious enough to constitute disabilities, but some supervisors wrongly assume they do. That’s a major problem: By assuming a condition is disabling, they’re “regarding” the employee as disabled—something the ADA prohibits. Thus, the ADA protects even employees who aren’t disabled.

Last year, in Thompson v. North Am. Stainless, the 6th Circuit recognized a claim under Title VII’s anti-retaliation provision for associational retaliation: “Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with” employees who engage in protected activity. I remain critical of this standard because it leaves open the issue of how close is close enough.

Here’s a simple way to prevent lawsuits when you have to fire a recently hired employee: Direct the person who hired the employee to also do the firing. If the employee belongs to a protected class, courts will conclude that the termination wasn’t discriminatory. Otherwise, why would the employee have been hired in the first place?

A federal court has ruled that Ohio employees who want to sue for disability discrimination can’t add on an additional claim of wrongful discharge under the so-called public policy of the state of Ohio. Employees have to use the federal ADA and the state disability discrimination statute instead.

If you use last-chance agreements that include an employee’s promise not to sue, understand that courts will strictly limit such a promise. The agreement can include a promise not to sue for past alleged employer discrimination in exchange for the last chance to remain employed. However, that promise cannot be extended to any discrimination that may occur later.

After years of setbacks, the labor movement is enjoying a renaissance. More employers will find themselves with a unionized workforce. If you suspect your employees will seek union representation, hire an attorney who is an expert on organized labor unionization right away. Otherwise, you may find yourself facing unfair labor practice charges.

Wal-Mart wasn’t wearing its smiley face when it agreed to pay a class of African-American truck driver applicants $17.5 million in a race discrimination suit. The drivers alleged Wal-Mart failed to hire and promote black drivers in proportion to the number who applied.

What should you do if you learn that an employee who is out on FMLA leave will not be able to return when her 12 weeks of unpaid leave are up? If you are absolutely sure that she can’t claim she is disabled under the ADA, you can terminate her. But you still must continue providing any benefits she was receiving while on FMLA leave, such as medical premium payments.

Courts understand that today’s economic climate is difficult. They aren’t likely to assume a company is restructuring or downsizing solely to “get” some employees. That’s especially true for employees lucky enough to be offered an alternate position—and then turn it down in order to sue.

Base your promotion process on a well-publicized system of posting opportunities and tracking applicants—not word of mouth or personal recommendations. It’s the best way to prevent failure-to-promote lawsuits. After all, if you can show an employee didn’t apply for a promotion, the case disappears.

A recent report offers some ominous news for New York employers. New York is one of eight states that saw an increase in class-action wage-and-hour cases filed in state court last year, according to the Seyfarth Shaw law firm’s new Workplace Class Action Litigation Report.

There’s a silver lining to the rising number of employment lawsuits: Courts are losing patience with applicants, employees and former employees who file discrimination lawsuits that have no basis in reality. Recently, the 6th Circuit approved sanctions against such employees and their attorneys.

On Jan. 26, the U.S. Supreme Court once again expanded the ability of employees to sue for retaliation. The court held that an employee who answers a question about a fellow employee’s improper conduct during an internal sexual harassment investigation is engaging in “protected activity” under Title VII of the Civil Rights Act.

Employees can sue if they believe they have been discriminated against based on their national origin. But what if the employee’s family has been in the United States for generations, and she speaks without any discernable accent or speech pattern common to another nationality and looks all-American? Can she still claim national-origin discrimination?

Now that much of our workplace communication is via e-mail, text messages and IMs that can be easily saved—and recovered—it’s easier to gather the evidence you need to win in court. If you think an employee is being insubordinate, be sure to review and archive all relevant e-mails.

As the economy slumps, expect more lawsuits from employees who lose their jobs. Many won’t find lawyers because their cases are flimsy. They may then file the lawsuit themselves. Fortunately, courts are beginning to lose patience with such cases ...

Clearly, there is no fury like that of a woman scorned—especially one unfairly passed over for promotion. Officer Tina Lewallen filed a complaint with the Beaumont Police Department after two men were promoted to the narcotics unit ahead of her. When the department failed to investigate the complaint, Lewallen sued ...

A recent report offers some ominous news for Texas employers. Texas is one of eight states that saw an increase in class-action wage-and-hour cases filed in state court last year, according to the Seyfarth Shaw law firm’s new Workplace Class Action Litigation Report.

Because employees have to meet tight deadlines for most employment discrimination claims, employers should be ready to prove exactly when they notified employees about a pending termination. With an exact date at your fingertips, you can easily get a case dismissed ...

Sometimes, a supervisor or manager may favor a subordinate for a promotion because he shares some other relationship that has nothing to do with work. That doesn’t always mean there’s discrimination going on. Protect your organization by using a promotion panel to score and interview candidates. That way, you can root out any favoritism that could affect the promotions process.

Employees who have been terminated often claim they suffered some form of discrimination or harassment. That’s one good reason to tell managers and supervisors they need to keep each and every piece of paper, phone message and e-mail that led up to the firing.

All too often, low-level managers and supervisors cause misunderstandings that could have been avoided. Of course, training on company processes, anti-discrimination or anti-harassment policies and so forth can prevent many workplace problems. As a backup plan, make sure you have a way for employees to quickly notify HR about any problems.

Congratulations! You’ve settled a case. Now make sure the same employee doesn’t sue you again. Remind managers and supervisors to treat the employee exactly like they treat all other employees in the same position.

When it comes to discharging employees for alleged dishonesty, here’s some sound advice for managers and supervisors: Don’t discuss why the employee was terminated with anyone who doesn’t need to know. Keep the information private to avoid a possible defamation lawsuit.

Employees who’ve been fired have little to lose—and they’re quite likely to see a lawyer about possible litigation. Right off the bat, you can expect that attorney to check whether the employer conducted a real investigation before making the termination decision.

Employers, beware: More employees are suing over so-called association discrimination, claiming their friendships or other relationships with black employees have resulted in discrimination against them, in addition to their acquaintances. Recently, the 6th Circuit came up with guidelines for when employees can sue based on their relationships with black employees.

Health care is rapidly becoming one of Michigan’s largest and most stable employment sectors. Health care employers are subject to many additional employment regulations than employers in other industries. That fact was driven home by a recent regulatory change implemented by HHS, providing a new level of protection to employees who work for health care providers—the so-called conscientious objector rule.

According to a recent report, 286 of Fortune 500 companies provide equal benefits to same-sex couples. What’s more, the better the company performs, the more likely it is to offer benefits that serve lesbian, gay, bisexual and transgender (LGBT) workers.

The 9th Circuit Court of Appeals has agreed to reconsider whether an enormous sex discrimination lawsuit filed against Wal-Mart will proceed as a class-action case.

Sometimes, an employee is so disruptive that it doesn’t matter how well she is performing her job. Constant arguments, tension and other elements of a personality conflict can poison the work environment and drag down other employees’ performance. She’s got to go!

Watch out! Some tests you use to see whether employees or applicants are suitable for a job could screen out individuals with disabilities. You could wind up in court defending against an ADA claim.

Q. We’re a small business (just eight employees) and haven’t laid anyone off. But business is slow and we need to restructure. We have an employee who has worked here part time (12 hours per week) for 25 years. She is 65 years old. We have one other part-timer (10 hours per week) who has worked here just one year. We’d like to lay off both part-time employees and keep the full-time employees. Can we do that?

The federal court for the Middle District of Pennsylvania recently ruled that UPS’ policy of requiring injured employees to be fully healed before they can return to work constitutes discrimination under the Pennsylvania Human Relations Act.

Employers with a good employee handbook that explicitly sets out the rules for handling hiring, promotions and raises have a huge advantage if there’s ever a complaint that those processes have been unfairly applied. Clearly written policies are one great way to counter the “he told me” claims ...

It’s common sense: You can retaliate only if you know about whatever it is you are supposedly retaliating against. If you can show you never knew an employee was engaged in an alleged protected activity, it becomes impossible for an employee
to win a retaliation claim.

Choosing which of your employees to promote is always difficult, since at least one employee will be disappointed. That can lead to friction or even a lawsuit. That’s why it’s crucial for the entire process to look—and be—as transparent as possible. You simply must avoid any appearance of favoritism.

The Shopper’s Vineyard wine superstore in Clifton has agreed to settle a race discrimination case after the EEOC filed suit on behalf of a black front-line manager who was terminated during an alleged downsizing.

The EEOC and the Civil Rights Division of the New Jersey Office of the Attorney General are partnering to launch a campaign to educate New Jersey youth and employers about workplace discrimination.

Here’s something to consider when deciding whether to settle a case. An oral agreement may be binding even if the parties never actually signed a written version. It’s a contract as long as the parties clearly agreed to the essential terms.

Sometimes, it’s obvious early on that a new employee isn’t working out. Firing such an employee won’t cause legal trouble as long as you based the call on previously set performance standards, job-related testing or some other impartial evaluation process.

Wal-Mart wasn’t wearing its smiley face when it agreed to pay a class of African-American truck driver applicants $17.5 million in a race discrimination suit. The drivers alleged Wal-Mart failed to hire and promote black drivers in proportion to the number who applied.

Do you sometimes let employees bend company policy … just a little? It’s really no big deal, right? A new court ruling warns that if you start bending a policy for one, you’d better be ready to bend it for all. Being flexible can sometimes be fatal.

A new EEOC document spells out the best practices employers should follow to avoid discriminating against workers who care for ill family members, an issue that's especially critical in a down economy. Follow our links to download your copy of this important EEOC guidance.

Employees do the darnedest things, and HR and managers frequently wind up trying to undo the damage. Our newest webinar — Today's Most Bizarre Recent Workplace Cases: How to Prevent Outrageous Workplace Behavior (May 28) — tells tales of outrageous employee behavior ... and the lawsuit against the employer that followed. Here’s our take on the topic, with cases pulled from the pages of our HR Specialist newsletters.

It’s becoming a common problem: An employer discovers disparaging comments on an employee’s Facebook, MySpace or personal blog. Maybe a post reveals internal company information. Can the employer take disciplinary action? It depends.

Even as we watch the stock market slowly recover, organizations are still laying off employees and searching for ways to cut overhead. If your organization is eliminating even one job, plan it carefully. A hasty layoff can create legal problems that cost more down the road than keeping the employee would have. Here are 10 things to consider:

J.C. Penney has agreed to settle a racial discrimination suit filed by Reinell Singh, an African-American employee at a Staten Island store. Singh alleged her supervisor used racially offensive names when referring to her and ultimately fired her because of her race.

Last year, U.S. employees filed a record number of legal complaints claiming they suffered discrimination at work. You know that U.S. anti-discrimination laws require managers to treat all applicants and employees equally. But what, specifically, do the laws require of supervisors and managers? Here’s a rundown.

An employer made a job offer to someone, but then rescinded it. Then the employer hired another applicant two months later. Is there anything illegal about that?

Despite the daily economic lamentations, some employers are still hiring. Those employers may think they are in the catbird seat because they may have hundreds of applicants for each position. But a bonanza of applicants is no excuse for shoddy hiring practices. You must make sure they comply with state and federal laws.

On Jan. 29, President Obama signed the Lilly Ledbetter Fair Pay Act, which may be the most important change in anti-discrimination laws in decades. It applies to all pending compensation-related lawsuits, but limits back pay to two years. Employers can look ahead to many years of legal wrangling over the interpretation of the seven key words of the act: “a discriminatory compensation decision or other practice.”

The EEOC and state and local agencies have been filing more administrative charges in recent years and that trend is likely to continue. Because administrative charges can be precursors to discrimination lawsuits, it’s critical for you to handle them properly. These 10 tips will help you prepare to respond.

One criterion for employees to be eligible for FMLA leave is that they must have worked at least 1,250 hours in the 12 months preceding the FMLA leave. That’s why it’s important to track employees’ hours, even hours worked by exempt employees, too.

Even the feds can’t keep overtime law straight. An arbitrator has ruled that the EEOC—of all agencies!—willfully violated the Fair Labor Standards Act by forcing employees to take comp time instead of overtime pay when they worked more than 40 hours a week. Need more proof that there's an irony epidemic these days? Increasing numbers of lawsuits are being filed against ... lawyers!

Fourteen employees of a Costco store in Hackensack took recycling a bit too far when they started reusing customer coupons for free fabric softener and dryer sheets. The employees wound up paying a high price for their “free” loot. When investigators brought the matter to the attention of store manager Sami Nasr, he fired all 14 employees.

In this brutal economy, desperate applicants—and current workers who believe they may be laid off soon—are trying an interesting tactic: They’re volunteering to work for less pay … sometimes much less. A new court ruling shows why you should take those offers seriously.

Private-sector employees filed 95,400 charges of job discrimination with the EEOC in fiscal year 2008. That’s up 15.2% from the previous year and up 26% from 2006, according to a Washington Post report.

Test your knowledge of recent trends in employment law, comp & benefits and other HR issues with our monthly mini-quiz ...

The 3rd Circuit has ruled that county court systems can be sued for disability discrimination under the federal Rehabilitation Act because the domestic relations divisions of the county court systems received federal funding.

A Beaumont-area Victoria’s Secret employee recently filed suit in Jefferson County District Court alleging she was discriminated against because of her pregnancy. Krystal Burns brought her suit under Title VII, the Pregnancy Discrimination Act and the Texas Labor Code.

Here’s yet another good reason to closely review employee compensation: Legislation overturning the U.S. Supreme Court decision in the Lilly Ledbetter case has been enacted. Employees will now be able to sue their employers for any discriminatory pay decisions made years ago that still show up in current paychecks.

Before firing any employee who has filed a harassment complaint, make sure your reasons are solid—and extremely well documented. That means checking to make sure supervisors followed company rules. Ensure that other employees with similar records were also fired. And be sure all documentation you are relying on was clearly created before the discrimination complaint.

Employees may assume that, just because they hold the same job title as another employee, they should receive the same pay. But the label an employer assigns to a job isn’t nearly as important as the job duties performed by the person holding the job.

New York Knicks center Eddy Curry has been sued by his former driver, who claims that Curry made a pass at him. The former driver, David Kuchinsky, also says that Curry used racial slurs around him ...

Sometimes, employers conducting harassment investigations find themselves in no-win situations, especially when there are conflicting claims and classic “he said, she said” scenarios. You risk a lawsuit if you fire the alleged harasser, most likely alleging some other illegal reason for your decision to terminate. The way to win these cases: Thoroughly document the investigation.

It’s crucial to handle all job openings the same. If someone doesn’t properly apply for a job, he can’t sue you for discrimination. If you have a clear process—and he knows about it—you can readily show he didn’t apply.

Q. Our company is being sued by an employee for discrimination. During the lawsuit proceedings, we discovered that he had been stealing from us. Do we have any recourse?

Q. If an employee is suing our company, what are the benefits of offering her job back while the litigation is ongoing?

Remind all managers and supervisors to keep any thoughts on insurance costs to themselves. If older employees end up being disproportionally affected by a reduction in force, any comments on insuring older employees may come back to haunt you.

When it comes to disciplining employees, one size almost never fits all. An individual approach—one that considers the very specific circumstances that led to the discipline—is usually best.

If you offer last-chance agreements instead of immediately firing employees, you can impose seemingly draconian measures without worrying about a lawsuit. If you later terminate an employee for violating agreement terms, most courts will take your side.

A Florida employee who was fired for saying “Merry Christmas” when answering the phone instead of the approved “Happy holidays” has filed a religious discrimination lawsuit against her former employer.

Sodexo Laundry Services and the EEOC have settled a lawsuit over pregnancy discrimination for $80,000. The EEOC alleged that a Haitian linen room attendant who asked for an alternative assignment when she developed pregnancy complications was instead fired.

Employers are responsible if they know or have reason to know about a hostile work environment created by employees and do nothing to fix it. As a practical matter, what employers hear and see may be just the tip of the iceberg. Smart employers immediately attempt to get the whole picture and then correct the harassing behavior.

As an employer, you may be used to cases moving quickly through the EEOC and on to court. That’s because employees must file EEOC complaints within 300 days of the alleged discrimination. They then have 90 days after the EEOC dismisses the complaint to file a federal lawsuit. But black employees can also file a lawsuit under another section of the Civil Rights Act.

You can never know beforehand which applicant might sue you. That’s one good reason to track every hiring decision and document why you hired some candidates and not others.

Q. When an employee requested a reduced schedule as an accommodation of his medical condition, we agreed. He has now told us that he is able to work full time. However, because of business conditions, we’d prefer to keep him at a reduced schedule. Do we have to reinstate him to his full-time job?

The Stillwater School District has agreed to pay a part-time teacher and athletics coach $137,000 to settle age discrimination claims in a lawsuit filed by the EEOC.

Sometimes, disabled applicants and employees try to insist on a particular accommodation. They expect employers to blindly agree to their suggestions without considering the expense or inconvenience. Don’t fall into that trap.

You can learn a lot about an employee during the first few weeks. Missing work then probably means attendance will be a problem later. Having stricter rules during the initial probationary period will help you weed out problem employees.

Here’s how routine discrimination claims turn ugly fast: A supervisor or manager gets it in her head that she’s going to punish an employee for complaining. While it’s hard for employees to win most discrimination cases, it’s relatively easy for them to win retaliation claims.

A white Springfield police officer failed to convince the 7th Circuit Court of Appeals that Springfield’s system for promoting officers discriminated against him.

The EEOC and state and local agencies have been filing more and more administrative charges in recent years. As the recession deepens and more people lose their jobs, that trend is likely to continue. Because administrative charges can be precursors to discrimination lawsuits, it’s critical for you to handle them properly.

Pay discrimination has received lots of attention lately, especially since the Lilly Ledbetter Fair Pay Act became law in January. Employees now have longer to sue over pay disparity.

Inconsistent stories and explanations look like lies to the everyday people who sit on juries. That’s one reason it’s crucial to double-check all your records and get the facts straight before you respond to EEOC, state or local anti-discrimination agency charges.

Pay disparities between men and women are in the news. Here’s how to find out whether you’re in danger of being sued: Take all your employees working in the same classification, divide them into male and female groups and then determine each sex’s average salary.

There’s a silver lining to the rising number of employment lawsuits: Courts are losing patience with applicants, employees and former employees who file discrimination lawsuits that have no basis in reality. Recently, the 6th Circuit Court of Appeals approved sanctions against such employees and their attorneys.

California State University Fresno has settled a suit brought by a female former volleyball coach who accused the school of sex discrimination. The settlement was reached 18 months after a California Superior Court jury returned a $5.85 million verdict in the favor of Lindy Vivas ...

If you’re serious about wiping out sexual and other forms of harassment in your workplace, consider adopting a zero-tolerance policy for failing to report suspected or known harassment. By readily disciplining those who ignore that rule, you can create a new climate in which employees really believe you take harassment seriously.

A recent report offers some ominous news for New Jersey employers. New Jersey is one of eight states that saw an increase in class-action wage-and-hour cases filed in state court last year. Advice: Brace yourself for even more wage-and-hour litigation. Such cases typically increase during economic downturns ...

A federal jury in Trenton has awarded $10,000 to a man denied a job at UPS because he refused to shave off his one-inch beard. Roniss Mason of Jersey City claimed shaving violated his Rastafarian religious beliefs and filed a complaint with the EEOC.

Employers that use arbitration clauses can often get lawsuits sent to an arbitrator for faster and less expensive resolution—but only if they are prepared to prove that their employees agreed to arbitration.

The recently signed Lilly Ledbetter Fair Pay Act may apply to pay discrimination cases that were filed before the law was signed and after the U.S. Supreme Court ruled in 2007 that employees have just 300 days to file pay claims after the initial alleged discriminatory decision.

It’s a fact that employees who think they are in trouble will look for ways to avoid termination—or profit from it. So it should come as no surprise if an employee files an EEOC discrimination complaint after you discipline him and warn that he may soon be terminated.

Timing is everything in discrimination suits. Ever since the U.S. Supreme Court decided in 2008 that an employee could effectively file a discrimination complaint simply by completing an EEOC intake document, employers have learned they can’t rely on the date stamped on the actual EEOC complaint form as the official deadline date.

A recent report offers some ominous news for Pennsylvania employers. Pennsylvania is one of eight states that saw an increase in class-action wage-and-hour cases filed in state court last year, according to the Seyfarth Shaw law firm’s new Workplace Class Action Litigation Report.

Q. We are downsizing and letting go a long-time employee. We want to help her out by giving her a severance package. What should we consider?

The 4th Circuit Court of Appeals, which covers North Carolina employers, has issued a no-nonsense opinion full of common sense: Employees can’t bring an employment discrimination lawsuit because they didn’t get a job that doesn’t exist or for which applicants aren’t being sought.

It can happen at the best of companies: You discover that a careless supervisor or manager made some comments that might be interpreted as prejudiced. When that happens, you know to discipline that employee. But what do you do when the employee who was the target of the comments is up for promotion?

Sometimes, an employee isn’t a good fit for a particular job assignment and becomes frustrated that things aren’t working out. Employers that transfer such an employee with the genuine intent to give her a fresh start in another department probably won’t run into legal hot water.

The EEOC says job bias claims of all kinds hit record levels during federal fiscal year 2008. A total of 95,402 complaints were filed during the year ending Sept. 30, 2008. The figure constitutes a 15% increase over 2007.

Is your company vulnerable to employees’ claims that they weren’t paid the right amount due to company policy or discrimination? Now’s a dangerous time to answer “yes” or “I don’t know.” Reason: A perfect storm of trends is prompting more U.S. workers to pursue their pay-related claims in court.

Discrimination at work is perfectly legal in some countries, and foreign-born managers and executives who work for U.S. employers may sometimes say things that show ignorance of U.S. laws. Those words can come back to haunt an employer that is sued for age discrimination.

Q. We are considering layoffs but would like to avoid them. Can we cut employees’ pay because of tough economic times?

Older employees who learn they might be laid off for economic reasons—especially those who have recently spoken with an employment lawyer—have begun trying an interesting tactic: They’re volunteering to work for less pay. Take those offers seriously.

Because the impact of domestic violence reaches deeply into a company’s culture, employers should reassess policies and make domestic violence an HR priority. Four sensible practices can help you help employees prevent domestic violence and lessen its impact.

The calendar turns to spring, and you know what’s coming. It’s that time of year when employers are swamped with requests from college students for unpaid internships. The benefits of the symbiotic relationship are obvious. But the legal risks are not ...

As time has passed, the North Carolina Persons with Disabilities Protection Act has evolved to cover more disabled North Carolinians. For example, the first version of the law excluded “working” as a major life activity, thus preventing coverage for those who might not be able to work without substantial accommodations. In 1999, the Legislature added “working” as a major life activity ...

With unemployment at its highest level since 1983, many applicants have far more experience and education than the job requires. But be alert: Advise hiring managers to avoid using the term “overqualified” in front of job candidates or in any written description of them. Rejected applicants could view the term as an age-related code word, thus sparking an age discrimination lawsuit.

Chalk it up to the rule of unanticipated consequences: Banks that took federal bailout money are rescinding job offers to foreign-born MBAs. No, it’s not discrimination based on foreign origin. Rather, it’s one of the strings attached to billions in TARP funds.

An alarming 15% of recently polled employees said the recession has made them less motivated than before. If your employees are so worried about their jobs and personal finances that they’re just going through the motions, it's up to managers to turn them around. Here are 20 proven tips to do just that.

Mounting layoffs are creating a glut of qualified and aggressive job hunters who are desperate for work. As their frustration grows, more applicants are reading deeper into their rejection letters—sometimes spotting job promises or hints of discrimination that you never intended.

Major policy issues being debated in Washington will likely change the face of HR this year, according to speakers at the SHRM's 2009 Employment Law and Legislative Conference. As a new Democratic Congress gains legislative traction and the Obama administration begins making policy, those issues could also be key to reversing the fiscal meltdown.

Test your knowledge of recent trends in employment law, comp & benefits and other HR issues with our monthly mini-quiz ...

Q. What kinds of information and documents should we keep in our personnel files?

A. You should include pretty much all documentation concerning an employee’s history with the company—attendance, pay history, job history, discipline and evaluations—except medical documentation and, perhaps, protected activity information concerning matters such as discrimination and harassment complaints.

As the economy heads south, many of your employees have probably considered—or already found—second jobs to supplement their incomes. Most of the time, moonlighting poses no conflict with your organization’s work. But an employee’s second job could lower productivity and morale. It could create liability for you.

In a common-sense decision, the 6th Circuit Court of Appeals has ruled that former employees who are disabled cannot sue their former employers under the ADA to recover retirement benefits that were reduced because they received Social Security disability payments from the federal government.

How much effort should the HR office put into getting everyone to get along? The best approach is to let employees handle most social conflicts among themselves—as long as there are no overt signs of discrimination.

If an employee is threatening litigation, try to find out whether others who belong to the same protected class might support her claims. If so, it may be time to settle.

A Bronx jury has ordered Bernard Spitzer, father of former Gov. Eliot Spitzer, to pay more than $1.3 million to four former employees to settle racial discrimination charges.

Sometimes, employees with disabilities don’t choose to let their employers know. If such an employee needs an accommodation such as a transfer to a less stressful position, she may make the request but never explain why. Then, when she is turned down, she may sue and allege she said she needed the transfer because of her disability.

You don’t always have to promote the best educated or most experienced employee—but you must at least have a good explanation why you chose another candidate.

Having similar-sounding titles and rates of pay  doesn’t necessarily make positions interchangeable. That’s what one employee who was turned down for a promotion in her division learned when she sued for alleged race discrimination.

Employees who have worked for their organizations for more than one year total and have worked at least 1,250 hours in the 12 months preceding their need for FMLA leave are eligible for unpaid FMLA leave for their own serious health condition or that of a relative. If employees haven’t reached 1,250 hours, they’re not eligible. That’s why it’s important to track every hour worked.

Employees with disabilities may be entitled to transfer to open positions that they are qualified to hold. Remember, that means jobs they could do with or without an accommodation.

There’s a widespread understanding of the grave impact domestic violence has on personal lives and the havoc it wreaks on families and communities. Now more attention is being paid to its effect at work. Sometimes, incidents of domestic violence actually happen in the workplace. But the impact goes far beyond immediate safety concerns.

Q. Is it OK for our company to prohibit employees from speaking in languages other than English in front of our customers?

Q. We have an employee out on FMLA leave and have just learned that she will not be able to return to work when her FMLA entitlement expires. Should we go ahead and send her a termination notice now?

It can happen to the best manager or HR professional. You discipline or demote an employee, and then, when she files an internal grievance or asks the company to reconsider, you conclude she shouldn’t have been disciplined or demoted in the first place. What should you do?

People who identify themselves as Native Americans and believe they have been discriminated against may be able to sue based on two distinct claims for the same characteristic. Such individuals can claim discrimination based on national origin or race.

A group of police officers recently filed suit against the city and county of San Francisco, claiming the police department has repeatedly promoted and given raises to younger employees instead of to more experienced, older officers.

Remind all hiring managers and supervisors that absolutely no racial slurs are allowed during an interview—not even in passing or in jest. Applicants who aren’t hired will get a jury trial if they can show that someone with hiring authority uttered a racial slur.

On Dec. 18, the Illinois Supreme Court overturned a lower court’s dismissal of a lawsuit by two pharmacists who seek the right to refuse to dispense emergency contraception because of their religious beliefs.

If you have to terminate an employee, don’t fall into a trap that can easily lead to a lawsuit. Don’t provide conflicting reasons for the termination or drop one when the employee or the EEOC asks for details.

Don’t throw out those leave requests or FMLA certifications—especially if you rejected any requests—until at least three years have passed. Employees have up to three years to file an FMLA lawsuit if the alleged violation was willful—and they don’t have to go to the EEOC or a state discrimination agency first.

Sometimes employers have the delightful problem of having several qualified candidates for a position or promotion. But that good problem can turn into a legal nightmare if an employer winds up fighting discrimination claims from a passed-over applicant. One approach that helps guard against discrimination charges is to have a diverse panel help make the hiring decision.

Assessing employee performance or potential using subjective measures is one of the fastest ways to wind up in court. Employers that stick with objective, carefully tailored assessments are much less likely to lose bias lawsuits because there’s little chance for hidden bias to creep into the process.

Discharged employees who sue over alleged discrimination often must prove that the reason their employers gave for firing them was really a cover for discrimination. If you’re very specific about your reason for terminating an employee, you’re likely to win these kinds of lawsuits.

Most minor grievances never add up to a discrimination lawsuit. That’s why you shouldn’t lose too much sleep over employees who whine about every little problem. Employees—even those belonging to a protected class—must be able to tolerate minor annoyances. Judges don’t like having to referee workplace pettiness.

Many disabled applicants choose not to reveal their disabilities during the selection process and don’t reveal the need for reasonable accommodations until after they have been offered a job. Don’t ignore that request, or you could wind up in court for violating the ADA.

Q. We have two offices in two different states. In one office, we have a sick leave policy in place because we have exempt employees, and the FLSA requires us to have the policy if we want to dock exempt employees for sick time after they exhaust their sick days. All employees at the second office are hourly, and they rarely call in sick. Can we have a policy at one location and not at another?

The first bill signed into law by President Obama significantly expands employers’ exposure for possible claims of discriminatory pay. It’s too soon to tell whether the Lilly Ledbetter Fair Pay Act represents the beginning of a new wave of pro-employee legislation. But in and of itself, the law represents a significant development of which careful employers need be aware.

Few employers win ADA cases by using a business-necessity defense. That’s probably because few employers take the time to really lay out why their business cannot accommodate a particular disability. Now the 11th Circuit has decided a business-necessity case that can serve as a blueprint for employers that want to use it effectively.

What’s a manager to do when faced with conflicting accounts of an argument between employees? An important part of that answer is to resolve the conflict quickly, before it spreads like a cancer through your organization ...

Two production companies for Will Ferrell’s movie Stranger than Fiction will pay a rejected job applicant who was pregnant $75,000 to compensate her for discrimination.

Regular attendance is a key job function for most of your employees. But while you are free to set and enforce attendance rules, you must also comply with key federal laws, including the FMLA and the ADA ...

Mounting layoffs are creating a glut of qualified and aggressive job hunters who are desperate for work. As their frustration grows, more applicants are reading deeper into their rejection letters—sometimes spotting job promises or hints of discrimination that you never intended.

Is your employee handbook clear on exactly what constitutes maternity leave and how long it lasts? If you plan to permit just the 12 weeks allowed for pregnancy and childbirth under the FMLA, spell that out. Don’t refer to maternity leave separately and then provide a different week or month count ...

If you're like lots of employers, you've probably been inundated with résumés from desperate people applying for anything that resembles a job. Many of them have far more experience and education than you need. They're "overqualified." Do you dare tell them so?

Now that the Lilly Ledbetter Fair Pay Act is the law of the land, it may be time to revisit how you set starting and incumbent salaries. If you currently allow managers and supervisors flexibility on pay issues, consider reducing that discretion.

Managers may dread performance reviews, but employees are more receptive to them than you think. In fact, 77 percent of employees polled by staffing firm OfficeTeam said they consider performance reviews valuable. Only 8 percent said they weren't valuable at all. Advice: Managers must be alert to these four potential pitfalls that make reviews less effective and heighten the legal risk:

Even bosses who’ve been taught that one word can trigger a harassment or discrimination lawsuit can put their foot firmly in their mouths. If that’s the case and an employee starts the legal wheels in motion, it’s usually best to settle the case and move on.

Q. I have a question about capping employees’ salaries when they reach the top of the pay scale. I’m concerned because the only employees affected are those with many years of service and who happen to be over age 40. Have we made a legal error? Some of the affected employees are angry and have mentioned discrimination based on the residual effect of the cap?

While employee handbooks are not required by law, they can prove essential — especially for small business owners that can't afford to lose a harassment or discrimination lawsuit. The employee handbook has become an essential tool in the employer’s arsenal to defend against liability for employment decisions.

Don’t make the mistake of assuming that someone who isn’t disabled under the ADA also isn’t disabled under the New Jersey Law Against Discrimination. The fact is, the NJLAD is far more generous in its definition.

Donald Rosenberg is suing The Plain Dealer, claiming he was fired from his beat as classical music critic because he frequently panned the Cleveland Orchestra’s conductor, Franz Welser-Möst.

The Michigan Supreme Court upheld a jury verdict in favor of Kenneth Sciotti, a Detroit municipal employee who claimed he was denied promotions because he is white.

The Kalamazoo City Commission in December enacted a law prohibiting discrimination based on sexual orientation. The measure mirrors ordinances enacted in at least 15 Michigan cities, including Ann Arbor, Ferndale and Grand Rapids.

Greece Central School District has settled a $1 million age discrimination lawsuit with elementary school teacher Mary Donlon for $235,000.

Former Flagler County Assistant Attorney Lisa Bosch resolved charges of gender discrimination and a hostile work environment with the county in an undisclosed settlement. Bosch resigned in March 2008, saying conditions under County Attorney Al Hadeed had become intolerable ...

Think again if you believe you’re in the clear after a former employee misses a shot at filing a Title VII discrimination suit by waiting too long. Even if an employee waits more than 90 days to sue after the EEOC dismissed his case, that employee may have another bite at the apple—in the form of a North Carolina wrongful discharge lawsuit.

North Carolina law has long protected disabled North Carolinians from discrimination. The North Carolina Persons with Disabilities Protection Act was originally called the Handicapped Persons Protection Act and became law in 1985. The act is broad in scope, and many of its protections apply directly to employment matters.

The Ohio Department of Transportation’s equal employment opportunity contracts coordinator, responsible for making sure agency vendors comply with state and federal anti-discrimination laws, has been punished for sending racist and sexist messages through the agency’s e-mail system.

Employees who can show direct evidence of age discrimination will get their day in court. That direct evidence often comes after someone who played a part in making an employment decision (e.g., helped select a candidate for hire or promotion) makes a careless statement after the fact.

Dulzia Burchette, a black former saleswoman for the preppy-glam Abercrombie & Fitch clothing store chain in New York City, is suing the Ohio-based retailer for racial discrimination.

Settling with an employee who has filed a discrimination lawsuit? If the EEOC gets involved, it can continue the case on its own—and may be able to get a court to order you to take corrective measures that go far beyond your settlement terms. That’s one good reason to conduct your own thorough investigation before you settle with the employee.

Judges are naturally suspicious. They regularly see the worst of humanity, and many don’t have the rosiest outlook on life. So when they hear that an employer suddenly disciplined an employee who has put in decades of service with nary a blot on her disciplinary record, they think “age discrimination.”

Q. How long do I have to keep employees’ personnel files after their terminations?

Sometimes employees who have agreed to accept settlements in return for dropping discrimination claims change their minds—especially if they believe the employer didn’t deliver everything it promised in the settlements. They’d rather ditch the agreements and restart the original lawsuits. They can’t.

Employees who claim they were fired or didn’t get hired because of age discrimination don’t have to prove that the employee who was hired or retained was younger than age 40. Instead, they need only show that the other employee was at least seven years younger.

What if an employee files a discrimination complaint with the EEOC and then suddenly finds herself having to work with someone she deems undesirable? Can she sue and allege that transferring the person she doesn’t like into her work section amounts to retaliation for filing the EEOC complaint?

When people lose their jobs, they often look for some reason other than their own poor performance. And since they are off work, they have lots of time to think about the past, including real or imagined slights they endured at the hands of co-workers and supervisors.

St. Cloud-based Gold’n Plump has agreed to pay $215,000 to a group of Somali Muslim workers to settle a religious discrimination lawsuit brought by the EEOC. The company also granted the workers an extra paid break for prayer during the second half of each shift.

If your organization isn’t already planning or implementing measures to cut labor costs, it may soon have to. News that the United States has been in a recession since December 2007 suggests that HR professionals should prepare to reduce the labor burden—if only as a contingency plan.

Although we all might wish for perfect harmony at work, that isn’t realistic. As long as there’s no obvious or thinly veiled race, sex or other underlying discrimination at work, it doesn’t matter if a supervisor isn’t very friendly with some employees.

Here’s another good reason to insist that HR handle all terminations: It’s much harder for employees to sue the company for its supervisors’ alleged harassment or discrimination if the HR office has primary responsibility for discharge decisions. Here’s why ...

It goes without saying that employers shouldn’t discriminate based on race, age, sex or other protected characteristics. But favoring people based on those protected characteristics can lead to another problem—reverse discrimination.

You probably rely on your supervisors and managers to give you all the relevant information before you make a disciplinary decision. But what if they don’t? If you don’t ask the right questions, you may inadvertently approve what ends up being a discriminatory action.

A federal judge has given final approval to the settlement of a race discrimination lawsuit brought by financial advisors against Morgan Stanley & Co. Inc. The settlement establishes a $16 million fund, of which $14 million will be divided among class members who submitted claims.

These days, employees and their attorneys often go to great lengths to intimidate employers. One way to do that is to file a huge lawsuit—one that takes up pages and pages, and includes a laundry list of allegations ... Before you panic, call your attorneys

Employees who are fired after breaking work rules often allege that they were targeted because of some protected characteristic like gender, age, race or ethnicity. The best way to counter such claims is to know beforehand whether your organization is being tougher on some employees who belong to a protected class while letting others slide.

Supervisors and managers, take note: You may be personally liable for aiding and abetting discrimination that is illegal under the New Jersey Law Against Discrimination.

In 2007, a U.S. District Court judge in California had enjoined the U.S. Department of Homeland Security from enforcing new rules that changed the language of the no-match letters issued by the Social Security Administration and the requirements for how employers must respond to the letters. DHS announced that its final no-match rule was taking effect Oct. 28, 2008.

The Pennsylvania Human Relations Commission has ordered Plum Entertainment, a New Hope theater production company, to pay $162,000 to Sharon Sheridan, a former personal assistant who claimed she was fired for complaining about sexual harassment.

The borough of Ellwood City has agreed to pay $160,000 to former police chief Richard McDonald to settle charges of racial discrimination. Almost immediately after being hired in June 2007, McDonald clashed with Mayor Donald Clyde ...

Sometimes, employees don’t have enough information to judge whether something they observe at work is discrimination—or a legitimate management action.

Surprise! Supervisors sometimes say dumb things. It may be entirely innocent—they simply don’t realize the impact their words may have. If that’s the case, and someone complains, it may be best to settle the case and move on.

Probationary university professors whose contracts aren’t renewed because they failed to achieve tenure status can’t use tenure denial alone as the basis of a suit alleging damage to their reputations. They must show that the decision was actually motivated by something like race or sex discrimination.

The 5th Circuit Court of Appeals has rejected an invitation to expand the number of cases that fall under Title VII’s retaliation provision. It recently ruled that someone who reports an OSHA violation couldn’t charge that he or she was retaliated against by filing a Title VII retaliation lawsuit.

Federal employees have to file discrimination claims as soon as they suspect they have been subjected to some form of discrimination. They can’t wait until they have figured out who, what, when, where and why they didn’t get a job or promotion.

Employees who think they are victims of some form of discrimination must show they were treated differently in some important way because of their race or other protected characteristic. But minor annoyances—such as heavier workloads—are not usually considered discrimination.

Sometimes, you have to trust that your lawyer and the courts will do the right thing and toss out a clearly frivolous case. As long as you are sure that you have solid reasons for firing an employee who wasn’t doing her job—and that you didn’t treat her any differently than any other employee with the same track record—fire her.

A Chicago dentist has agreed to pay $462,500 to settle a harassment and retaliation complaint filed by 18 employees. The complaint alleges employees were subjected to sexual harassment and required to join the Church of Scientology as a condition of employment.

HR Law 101: Since 1993, the Family and Medical Leave Act has provided eligible employees up to 12 weeks of unpaid, job-protected leave per year for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition ...

Employment law class-action litigation is growing at an explosive rate, and the economic meltdown will probably fuel even more lawsuits in 2009. So says a recent report that also predicts far greater financial exposure for employers that must defend their employment policies in court. Here are the gory details.

Age bias has no place in the workplace, and managers are primarily in charge of preventing it. Warn them against making any statements that may indicate management or your organization prefers younger employees to older ones.

Cupid's arrow eventually flies into every workplace. Risks: Office romances can be disruptive and, even worse, open the door to legal problems. Action: Balance your need to reduce legal risks with a realistic view of employees' lives. Stay away from trendy "love contracts."

HR Law 101: The Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities who can perform a job's essential functions with or without reasonable accommodation. All employers that have 15 or more employees must comply with the law ...

The U.S. Supreme Court has agreed to review a reverse discrimination ruling by the 2nd Circuit Court of Appeals, which had upheld a lower court’s decision that the city of New Haven, Conn., could refuse to certify the results of two fire department promotion exams...

The ongoing soap opera that is Philadelphia news broadcasting seems to be winding down. Former WCAU-TV news anchor Vince DeMentri has settled for an undisclosed sum for a sex discrimination complaint...

HR Law 101: On Jan. 29, 2009, the Lilly Ledbetter Fair Pay Act took effect, making it easier for women and others to sue for pay discrimination that may date back decades. The law, retroactive to May 2007, liberalizes statutes of limitations on when employees can file such lawsuits. 

HR Law 101: Protecting yourself and your company from lawsuits starts the minute you decide to hire someone. Potential lawsuit land mines line your path. Federal laws provide a patchwork of legislation protecting workers and applicants from discrimination by employers ...

On Jan. 26, the U.S. Supreme Court unanimously ruled that Title VII protects from retaliation employees who cooperate with employers’ internal harassment investigations. Some attorneys worry the decision will open the litigation floodgates for employees who believe they have suffered retaliation.

By now you know that employers can’t fire or otherwise punish employees because they’re pregnant. But what about employees who choose to have an abortion? Make sure your supervisors know it’s illegal to discriminate against them, too.

Three former detectives for the Nassau County Police Department’s 8th Precinct in Levittown have won a $1 million verdict for sexual harassment and discrimination.

Employees and their lawyers are always trying to find new ways to expand the claims they can make against employers. They try novel approaches to try to sweeten the recovery pot, as the following case shows.

President Obama signed the Lilly Ledbetter Fair Pay Act on Jan. 29, making it easier for women and others to sue for pay discrimination that may date back decades. Drafted in response to a 2007 U.S. Supreme Court decision that said employees had at most 300 days to file pay discrimination complaints, the new law counts each unfairly low paycheck as a fresh discriminatory act.

Soon after a Pennsylvania sales company hired Tamara Klopfenstein as a receptionist, she had performance problems right away. But the real trouble began when Klopfenstein received an e-mail from a VP that said one of her “many responsibilities … is making and getting coffee.”

Lawsuits may be inevitable in today’s litigious society, but losing them is not. Follow these 10 rules to prevent the most common employment-related lawsuits—or at least increase your chances of winning them.

Ah, the “halo effect”—the practice of inflating an employee’s annual evaluation to increase overall morale and avoid the unpleasantness of telling underperforming workers what their weaknesses are. Too bad using the halo strategy both undermines performance and exposes employers to legal risks ...

Lawsuits by employees against their employers have grown tremendously in the past decade. Sometimes those lawsuits have merit, sometimes they don’t. Here are 12 of the biggest manager mistakes that harm an organization’s credibility in court. Use these points as a checklist to shore up your personal employment-law defense.

Maybe a long, long time ago, in a far, far away place, folks used to tell women, “Oh, you can’t do that … it’s a man’s job.” Maybe the work was too heavy, muddy or risky? But welcome to 2009, where jobs are no longer classified by gender. Better check to make sure your hiring managers understand that, too!

It’s important for employers to plan to prevent workplace violence and respond to it if prevention fails. While every employer needs a customized plan that fits its particular workplace, good violence-prevention strategies share common elements.

The Internet has created a whole new pond for employment lawyers to fish in. But you’re not powerless to your employees’ embarrassing—and potentially illegal—online activities. You can discipline employees who go over the line. Here's a recent example, plus five tips to help you avoid legal trouble ...

Expect swift confirmation of President Obama's nominees to head the U.S. Departments of Homeland Security, Labor and Justice. And expect the Obama administration to take a far harder line than the Bush administration did against organizations that break employment-related laws.

Change. America voted for it, and small businesses will certainly receive their fair share in 2009. Here are the five most important workplace issues on President Barack Obama’s agenda.

In uncertain economic times, employers sometimes have to cut staff and redraw org charts to stay competitive. Employees often know far in advance that change is coming—and that they may lose their jobs. And some already may be looking for ways to “get back” at their companies via lawsuits ...

Dulzia Burchette, a black former saleswoman for Abercrombie & Fitch, is suing the company, claiming racial discrimination and harassment. Burchette says she was harassed when she came to work at the company’s Fifth Avenue store with blonde highlights in her hair.

Layoffs are in the news. With a recession looming, this necessary evil is on agendas throughout corporate America. A layoff—or RIF—is a tricky, painful process for management, those who lose their jobs and even employees who remain afterward. Here are four critical and often overlooked RIF potholes that can make the route more treacherous than it needs to be ...

Lawyers are always looking for novel ways to sue on behalf of employees. One such recent attempt involves trying to apply the RICO Act—originally meant to combat organized crime—against employers. If successful, such lawsuits could result in more than lost dollars: Managers and supervisors could go to jail.

Trevor Johnston, who served on a jury last April that awarded to a former employee of Ernie Haire Ford $5.8 million for age discrimination, claims someone from the Tampa dealership later offered him a bribe to report juror misconduct.

Carl McAloose, the former Florida Gulf Coast University athletic director, said it only took him “about five seconds” to decide to resign after he heard the university had agreed to settle with Holly Vaughn, former women’s golf coach, and Jaye Flood, former women’s volleyball coach.

Employees who suffer reprisals after complaining about possible discrimination or harassment can sue for retaliation. But they can do so only if they can show they “engaged in protected activity”—that is, that they told their employer about the alleged discrimination or harassment.

Sometimes, it’s tempting to offer a disgruntled employee a quick cash settlement in exchange for her signature on a liability release. If a few thousand dollars will avoid an expensive lawsuit, it’s worth it, right? Maybe, maybe not ...

Employees who claim their employers somehow discriminated against them because they have immigration problems or aren’t U.S. citizens can’t automatically sue for national-origin discrimination under the Minnesota Human Rights Act or Title VII. Instead, they must prove that the underlying discrimination was based on national origin.

If some of your managers and supervisors steer career and business opportunities to favored subordinates and keep others from finding out about them, watch out. If those missed opportunities wind up depriving employees of potential financial rewards, that could lead to discrimination lawsuits.

If an applicant discloses a disability and says she can’t perform the job’s essential functions even with an accommodation, you can turn her down. You don’t have to second-guess her assessment and look for a reasonable accommodation.

Marsha Bartel was an award-winning NBC journalist working on the “Dateline NBC” television show. NBC fired her, claiming it was laying off staff. She sued, alleging NBC had fired her for complaining that the show was not adhering to NBC’s internal ethical standards. The case offers some important reminders about how to handle termination of at-will employees.

Q. Our company has just made a job offer to a highly qualified man to work in our company’s IT department. During the final stages of our interviewing process, the candidate told us that “she” is transgendered —that she would be transitioning from male to female. We believe employing a transgender employee could be very disruptive and cause a morale problem in the company. Can we rescind the offer based on the candidate’s transgender status?

Q. We have an employee who has a history of clashing with others at work. Her supervisors have addressed this with her many times. Recently, she sent an e-mail that was unprofessional and insulting to co-workers. If we fire her, could she successfully sue us for sex discrimination or harassment?

The 111th Congress wasted no time signaling its intention to enact employment law legislation that dramatically favors employees, quickly passing both the Ledbetter Fair Pay Act and the Paycheck Fairness Act. They promise equal pay for equal work. Find out why business and HR groups oppose both measures.

LA Weight Loss, which was renamed Pure Weight Loss in 2007, has settled a lawsuit filed against it by the EEOC. The agency had alleged a nationwide pattern and practice of sex discrimination at locations across the country ...

Employees do the darnedest things, and HR frequently winds up trying to undo the damage. One of the highlights of HR Specialist’s upcoming Labor and Employment Law Advanced Practices Symposium will be a session on “The Most Bizarre Recent Workplace Cases—and What You Can Learn from Them.” Here’s our take on the topic, with cases pulled from the pages of HR Specialist newsletters.

Erin Primmer, former producer of “The Montel Williams Show,” has increased the amount of her disability discrimination lawsuit against CBS by a whopping $3 million. Primmer claims she was wrongfully fired after she collapsed from a brain aneurysm in 2007 ...

Employers may generally impose rules requiring employees to adhere to reasonable workplace appearance, grooming and dress standards. But as straightforward as the issue seems to be, grooming standards can create problems for employers.

Christine Opp, a former assistant state’s attorney for Cook County, has filed a lawsuit claiming that she was fired because of her age and political leanings.

Here’s something to keep in mind when you find yourself having to terminate an employee who may later sue for race or other discrimination. Past positive evaluations and promotions can be used as solid evidence you didn’t discriminate against the employee.

Frank Bruno aced his first round of interviews for an HR director job at Unitek USA in Pennsylvania. But during his final interview, one of the company’s board members asked the 55-year-old Bruno, “How old are you, 78?”

Train all bosses to avoid even the appearance of favoritism. Explain that excluding anyone from an “inner circle” may trigger a lawsuit, especially if those on the “in” list are largely members of the same protected classification as the supervisor or manager. Something as simple as speaking a common foreign language with select subordinates can trigger a lawsuit ...

Employees ask for and take medical leave for all sorts of reasons. That doesn’t mean their employers know when an employee is disabled. But that doesn’t stop some employees from trying to use their leave as evidence in a discrimination lawsuit ...

An employee who can’t prove she actually suffered discrimination can still win a retaliation lawsuit—if she can show that her employer retaliated against her for complaining about alleged discrimination. That doesn’t mean, however, that anything negative that happens to the employee adds up to retaliation.

Mary Barone had worked for United Airlines since 1995. In 2005, she was promoted to manager of business process administration in Denver. Eventually, Barone sued for discrimination and retaliation, alleging constructive discharge—essentially that she had no choice but to resign.

If you decide to terminate an employee who simply won’t follow instructions and is the source of constant trouble, go ahead and provide a laundry list of reasons. As long as the reasons are legitimate, the list will help set him apart from others who may not have been fired for breaking the rules.

Employees making Title VII discrimination claims must file their complaints with the EEOC before filing a federal lawsuit … most of the time, but not always.

The worst-case scenario for a large company with operations in many locations: A class-action lawsuit alleging discrimination against an entire class of employees. One way to discourage such massive lawsuits is to let managers at separate locations keep substantial control over setting salaries and raises.

Here’s a reason to make sure that your applications include an honesty provision: If an applicant sues for discrimination, she won’t get very far if you catch her being less than honest on the application.

It’s easy to understand why supervisors and managers get upset when one of their subordinates files an EEOC complaint. After all, how can you not take it personally if someone says you discriminated based on race or sex or for some other illegal reason? But the worst thing those managers and supervisors can do is punish the subordinate.

Effective Jan. 1, 2009, employers with 15 or more employees have a new set of ADA rules to contend with. President Bush signed off on a law significantly amending the ADA in September, greatly changing how employers must handle disabled applicants and employees.

Luther Spears worked for the Kroger Company for 24 years. He repeatedly applied for management positions in the produce department, but was never promoted. Meanwhile, Spears, who is black, trained younger white employees who were promoted over him. Spears finally filed a complaint with the EEOC ...

One way to reduce your labor budget is to terminate staff members who are paid the most and replace them with employees who earn less. But be careful before you implement a layoff based on seniority.

Before you reject a candidate who appears to meet the basic requirements for an open position, make sure you can explain your decision. Then document your rationale in case he or she later claims the real reason for the rejection was some form of discrimination.

If you don’t have up-to-date job descriptions, you are asking for legal trouble the next time an employee asks for reasonable accommodations under the ADA. Without a current job description, the employee will come up with her own—quite possibly minimizing the essential functions she can’t perform.

A federal district court judge recently approved a $33 million settlement reached between Citigroup and female financial advisors in its Smith Barney unit.

If, like many employers, you include an arbitration clause in your employment applications, take note of a recent California Court of Appeal case.

The California Fair Employment and Housing Act requires employees to file complaints with the appropriate state agency within one year of an alleged discriminatory act. But what happens if the employee delays going to the agency and instead tries to resolve the complaint using the employer’s own internal process?

Sometimes, employees work with several supervisors, all of whom provide input on that employee’s performance. But courts generally won’t view differing evaluations by more than one supervisor as evidence of discrimination

Requiring employees to arbitrate most employment disputes can save your organization time and money—if you can get the agreement to stick.

Employees have the strangest ideas about what constitutes a disability and whether they are entitled to a reasonable accommodation. For example, many people have minor phobias—let’s say a fear of spiders. That doesn’t mean employers have to provide a spider-free workplace.

Sweeping new ADA legislation passed earlier this fall will completely change the way employers manage disabled employees. The ADA Amendments Act of 2008 overruled four U.S. Supreme Court decisions defining disabilities under the ADA, thereby broadening the definition of disability ...

Employees are protected from retaliation for filing discrimination claims such as a complaint with the EEOC or the DOL. That protection starts as soon as the employee lets someone in authority at the company know he’s going to contact the agency.

If the EEOC decides not to pursue an employee's discrimination case itself, it will issue a “Right to sue” letter. Employees then have up to 90 days to file a federal lawsuit. But before you dance a little jig on the 90th day, consider this ...

A federal jury recently found that the Beaumont Police Department discriminated against a police officer because of her gender. The jury awarded $150,000 to Officer Tina Lewallen, who sued the department for gender discrimination in 2005 ...

Before you use attitude as one of the reasons for rewarding one employee over another, consider how you will defend that decision if another employee thinks it was based on discrimination. Here’s how to use attitude as a decision factor.

When jurors hear that a company has a clear set of disciplinary rules but made an exception in the case of someone who just filed an EEOC or internal discrimination claim, they may jump to the conclusion retaliation occurred.

Here’s a problem you might never see coming: A supervisor who harbors resentment against a subordinate because of her protected classification decides to hold her to the letter of the law when it comes to a benefit such as FMLA leave. Meanwhile, other employees get preferential treatment, such as additional unpaid leave after their FMLA leave expires ...

Employers that post job openings and then track the response they get to their advertisements will discourage frivolous lawsuits. Would-be applicants can’t say they tried to apply or were discouraged from doing so because of discrimination if the company can show how it routinely handles all job openings and applications.

Beginning this month, the new amendments to the ADA take effect. Among those rules is one that says employees are disabled even if they can mitigate the effects of that disability with medication or other aids ...

It’s OK to favor applicants who’ve proven they can stick with a job for a while. That’s not discrimination, as a recent court ruling shows. The key: Allow employees to explain job gaps ...

Many of the millions who post information online never think a potential employer might read what they post. Meanwhile, employers believe that if the information is available online for the viewing, they have an obligation to look. However, several laws may restrict how you conduct the search or how you use the information.

Do you worry that one ill-chosen comment could lead to a huge lawsuit? Don’t lose too much sleep unless the comment was grossly inappropriate ...

The New Jersey Supreme Court has ruled for the first time on the proof employees must offer to make a religion-based hostile work environment claim stick. The case, Cutler v. Dorn, established that New Jersey courts must decide workplace religious discrimination claims using the same legal standards they use in racial and gender discrimination claims.

A Tampa jury awarded $60,000 to Geno Baker, a former maintenance worker in the Safety Harbor Public Works Department, for race discrimination he suffered during his 14-year career with the department.

Eight women from the Tampa Bay area have joined an EEOC class-action lawsuit against Sterling Jewelers, owner of Jared, Kay Jewelers and Marks & Morgan stores. The lawsuit alleges that Sterling pays women in retail sales positions less than men and denies them promotions ...

Employees who file a discrimination claim with the Minnesota Department of Human Rights within the one-year deadline set by the Minnesota Human Rights Act get an extension of time to file a lawsuit directly in court. That’s the conclusion recently reached by the Court of Appeals of Minnesota.

As the impact of the global economic crisis takes hold, a quarter of U.S. employers expect to make layoffs in the next 12 months. Find out how employers nationwide are hunkering down—and the HR lessons you can apply to your organization.

Q. The owner of our company recently fired an employee who refused to run a business-related errand. The employee said running errands wasn’t in his job description. Can he sue us for wrongful termination? ...

Every workplace has managers who love to hand out nicknames to employees and co-workers. It’s all good fun until an employee in a protected class—age, sex, race, religion, disability, etc.—takes offense ...

Advances in medical research have resulted in the early detection and treatment of illnesses. One of the most significant advancements is testing that can identify genetic differences that could increase an individual’s chance of developing a particular disease. But there’s a downside to such progress ...

Churches, church schools and other religious institutions don’t always have to follow federal employment laws. That’s because religious entities are entitled to operate free of interference with their religious practices—if the employees in question are part of that religious practice.

A class of television writers reached a $4.5 million settlement in an age discrimination lawsuit it brought against International Creative Management (ICM), one of Hollywood’s “Big Five” talent agencies.

Employees who complain about harassment or discrimination often mistakenly believe they are automatically protected from discipline. They’ve heard employers can’t “retaliate” against them for complaining. That’s true to a point. But that doesn't mean that those employees get automatic immunity from any pre-existing workplace performance or behavior problems ...

Sometimes, it seems employees and their lawyers can take even the most innocent event or evidence and find a way to twist it into a discrimination case. That’s why it’s important for employers to have solid reasons for all decisions. You never know when someone is going to second-guess you ...

Gov. Rod Blagojevich recently signed an update to the state’s decade-old genetic nondiscrimination law, which prohibits employers from using genetic information against employees. In some situations, the state law exceeds the protections granted under the federal Genetic Information Nondiscrimination Act (GINA) enacted this spring ...

Q. Is it illegal to pay someone without a degree less than someone with the degree? In our case, two employees have the same title but do slightly different tasks. One has a bachelor’s in HR and the other does not. However, the one without a degree is doing all the HR duties and gets paid less than the one with a degree. The degreed employee doesn’t use her HR skills in her job at all.

The U.S. economy was already on the brink last month when the Wall Street-fueled financial crisis came and pushed it over the edge. Organizations nationwide are being forced to slash costs, which often means cutting payrolls. Too often, however, employers make tactical errors during layoffs. Here are six key steps to help keep layoffs as legally painless as possible:

You’d think terminating someone for obviously gross misconduct and behavior that was simply unacceptable would be a slam-dunk. No chance such an employee could bring a lawsuit, right? Wrong. There’s always the potential for a discrimination suit ...

Recently, attorneys have been trying out a different tactic when employees have waited too long to file sexual harassment and other discrimination claims under either the federal Title VII or the Pennsylvania Human Rights Act.  They’ve tried suing the employer under the Pennsylvania Equal Rights Amendment. Now the Pennsylvania Superior Court has nixed that avenue ...

Q. We do background checks on our employees. Is there a restriction on how many years we can go back on the employee? ...

Q. If we lay off an employee, are we required to recall the employee at a later time if we have work? ...

Although North Carolina is an at-will employment state—that is, employees can be fired for any reason or no reason at all as long as it is not a reason prohibited by law—that doesn’t mean that there aren’t exceptions. One of those is the so-called “public policy” exception, which allows employees to sue for wrongful discharge if their firings violate North Carolina public policy.

Poor performers who think they have been discriminated against when fired, demoted or otherwise disciplined can still win a lawsuit—if they can show that others outside their protected class were just as lousy but didn’t receive the same discipline. Be ready to defend yourself with solid, carefully documented proof...

Bernard Pettis, who is black, worked for R.R. Donnelley as a materials handler, loading skids for press operator Tim Cain. Whenever Cain, who is white, helped Pettis seal the skids, he would smash Pettis’ hands under the top board, then laugh and tell co-workers, “I got his hands,” or “Ooh, look at him.”

The EEOC recently filed an employment discrimination lawsuit against Time Insurance Agency of Austin, alleging pregnancy discrimination against a female job applicant.

Judges sometimes use common sense. Take, for example, a recent case involving a woman who sued after her employer changed her days off so that she had to work six days straight.

Sometimes, you want to send a message to a problem employee, but don’t want to make such a big deal out of it that she’ll think about filing a lawsuit.

Employers have the right to meet business needs by changing the jobs their employees do, and they can set the minimum qualifications for any new positions they create. It’s the company’s prerogative to then decide whether to replace existing employees with others who meet the requirements.

Could a stressed-out employee who makes veiled threats be a danger to himself or others? It’s the kind of quandary that keeps HR pros awake at night. And because the stakes are potentially high, it’s hard to know what to do. The most prudent course of action: Suspend the employee until you can sort matters out.

Q. We recently prevailed before the CCRD, which conducted an extensive investigation into a charge of discrimination. Now our former employee has filed an agency appeal. What will happen next?

Pamela Stoney worked as a sales manager for Atlanta-based Cingular Wireless (subsequently AT&T) in Colorado. After the company fired her for insubordination, Stoney filed a complaint with the Colorado Civil Rights Division, claiming age and gender discrimination and retaliation ...

If you have employees or operations in New York City, your sexual harassment and discrimination policies must reflect the strict rules employers are required to follow under the New York City Human Rights Law. It all adds up to a challenging HR environment. Your best bet in New York City—adopt a zero-tolerance policy for any sort of sexual, racial or other harassment.

Q. I own my own business, and controlling my insurance costs is my biggest challenge. Recently, I learned one of my employees has been tested and has the genetic makeup likely to develop into a very serious illness. While I feel sorry for the employee, this disease is likely to cost our company hundreds of thousands of dollars. Can I fire the employee?

The EEOC has filed a class-action gender discrimination lawsuit against Sterling Jewelers in U.S. District Court for the Western District of New York in Buffalo.

As the economy shrinks, unemployment is growing in New York and throughout the country. If your organization plans to lay off workers or already has, brace yourself. Lots of former employees are going to list you and your managers as references when they seek new jobs. That means it’s time to make sure you have policies in place on how to handle reference-check calls.

A cash-balance pension plan is one in which the employer contributes a set amount each month on behalf of an employee. The employee eventually collects pension benefits based on the cash balance in his or her account. Some employees have claimed that such plans favor younger employees and therefore are illegal ...

You don’t have to ignore a sudden and shocking deterioration in an employee’s performance and behavior. You can and should ask for a fitness-for-duty exam. Just be prepared to discuss possible accommodations if it turns out the employee is disabled.

It takes more than a written policy to avoid liability for sexual harassment. But if you back up your policy with regular training and reminders and quickly fix any harassment problems that come to your attention, chances are you won’t be liable unless the harasser was a supervisor and the employee suffered an adverse employment action ...

Employees who take certain prescription drugs for legitimate medical conditions may be unable to work safely if their jobs involve heavy machinery, split-second judgment or the ability to remain alert. If that’s the case, it’s not disability discrimination to ban employees from working while on those medications.

Employees don’t have to win their discrimination claims to charge retaliation. That’s why it’s important for HR to stay on top of any disciplinary action aimed at an employee who has already complained about discrimination ...

A recent study by Michigan State University and Hope College found that employers perceive overweight workers as lazier, more emotionally unstable and harder to get along with than their “normal weight” counterparts.

No one likes a layoff, especially the affected employees—who may look for a reason to sue. Smart employers can stop many baseless lawsuits by using objective, neutral criteria to select which workers will lose their jobs. That’s what happened in the following case ...

If some of your employees perform similar jobs under different pay structures, make sure you can justify the differences with good, solid reasons that will stand up to a side-by-side comparison. Otherwise, one of your lower-paid workers may sue you for discrimination.

Change. America voted for it, and the HR world will certainly receive its fair share next year. The arrival in Washington of President-elect Obama and a firmly Democratic-controlled Congress will spark an array of legislative and regulatory proposals that could rewrite the employment law rule book.

During this term, the U.S. Supreme Court will consider employment cases concerning arbitration, pregnancy discrimination, protected activity and union fee use.

Your company probably put up a Christmas tree to brighten the workplace during the holidays. Don't be surprised if an employee suggests putting up other symbols of the season, such as a menorah. If you reject that suggestion, should you worry that you’ll be ringing in the New Year with a religious discrimination lawsuit?

Some employees have chips on their shoulders—everything is always someone else’s fault, not theirs. They constantly pester supervisors and higher-ups with complaints about discrimination, retaliation and general unfairness. How is an employer supposed to deal with such constant whining? ...

At first glance, the federal ADEA appears rather straightforward: It protects people age 40 and older from employment discrimination based on their age. But the law can affect just about anything managers do, from asking questions in job interviews to assigning job duties ...

No federal or state law requires employers to use job applications. But if you do require applicants to fill them out, know the legal do’s and don’ts of what questions to ask. Here's the topic-by-topic guidance you need, along with relevant records-retention rules.

President Obama has put forth a significant employment and labor agenda. If he and the Democratic-controlled Congress succeed in passing proposed legislation, the next several years will see the creation of new protected classes, more family leave rights and the re-emergence of labor unions.

As the impact of the global economic crisis takes hold, a quarter of U.S. employers expect to make layoffs in the next 12 months—if they haven’t already done so. However, most companies are focusing on increased employee communication and smaller cost-saving measures.

Q. May we require male employees’ hair be a certain length, or is that discrimination? Also, may we prohibit beards? ...

When you think of a sexually hostile work environment, the scenario usually involves crude sex talk, bawdy photos and other prurient activities. But those aren’t the only markers of a hostile environment. In fact, a pervasive anti-female attitude that has nothing to do with sex can lead to a lawsuit, too ...

Gone are the days when employers could accommodate employees’ religious practices by being flexible about who worked Saturdays and Sundays. Today, employers may have to offer additional prayer breaks in the middle of the workday, too ...

If your employees sign releases agreeing to settle minor employment-related claims out of court, make sure the language is broad enough to actually stop any further litigation ...

On Jan. 1, 2009, the newly enacted ADA Amendments Act of 2008 (ADAAA) will go into effect. The law clarifies the ADA definition of disability and overturns certain U.S. Supreme Court decisions and EEOC regulations that narrowly interpreted the ADA ...

If you use a mandatory arbitration agreement, you may be able to set a relatively short deadline for employees to bring discrimination claims ...

Far too often, careless employers lose lawsuits they should have won, especially when it comes to terminations. Here’s why: Some fired employees will sue for discrimination, and they have to show that you treated them differently because of some protected characteristic such as race, gender or age ...

When discrimination charges go to court, both sides are entitled to copies of all relevant evidence. That includes memos, notes and e-mail (with some exceptions for confidential, trade secret or attorney-client privileged communications). Don’t think you’ll be able to avoid liability by getting rid of some documents ...

North Carolina employers have one less thing to worry about: A federal trial court recently decided the North Carolina Equal Employment Practices Act (EEPA) does not allow employees to file separate retaliation claims on top of initial discrimination complaints ...

It’s critical for HR to back up every disciplinary decision with complete records showing exactly why an employee deserved his punishment. If a fired employee broke the same rule another employee did, those records better show you punished them equally—or explain why the punishment was different ...

Sometimes, employees who do great at one job lay an egg when promoted up the org chart. When that happens, and you find you have to terminate the employee, be sure to document exactly what went wrong. Otherwise, the employee may sue, claiming some sort of discrimination ...

To sue for discrimination, employees must prove the employer did something that amounted to an adverse employment action—a firing, demotion or some other act that substantially affected the terms and conditions of employment. Do sexist comments that undermine a female employee’s authority constitute an adverse employment action? ...

Employees who file discrimination complaints are protected from retaliation. That doesn’t mean they’re immune from being punished if they break rules. Employers can and should take appropriate disciplinary action against them. The key is a careful and deliberate approach, devoid of emotion ...

It sometimes feels ominous when an employee accuses the company or a supervisor of discrimination and takes a complaint to the EEOC or some other agency. But those cases often reach settlement before they get out of hand. Then everyone has to get along, especially if the settlement includes reinstating the employee. HR should take the lead in making sure a potentially awkward situation works smoothly.

With a Democratic-controlled Congress, President-elect Barack Obama will likely push for these employment law priorities ...

The ADA Amendments Act of 2008, which goes into effect on Jan. 1, 2009, is designed to restore protections for the broad range of individuals with disabilities, as originally envisioned by Congress. The amendments were also meant to reverse several U.S. Supreme Court decisions that limited the ability of individuals to qualify as disabled ...

Sometimes, it becomes clear early on that it was a mistake to hire that new employee. If it doesn’t look as though things will improve, it’s a good idea to let the same manager who recommended hiring the employee also be the one to fire her. That makes the termination decision much easier to defend if there’s any question about possible discrimination.

Employees who claim they have been discriminated against because of a protected characteristic such as age or disability have to show that they suffered an adverse employment action. They can’t simply point to a poor performance evaluation.

Want to avoid needless lawsuits from disgruntled applicants? Adopt some basic rules for handling the selection process, and pay special attention to the all-important job description and interview. As the following case shows, employers that follow some simple rules probably won’t lose a hiring discrimination lawsuit ...

Some employees have chips on their shoulders—everything is always someone else’s fault, not theirs. They constantly pester supervisors and higher-ups with complaints about discrimination, retaliation and general unfairness. How is an employer supposed to deal with such constant whining? ...

HR can never know for sure exactly what’s going on in other parts of the organization. That means it’s easy to be blindsided by a sudden lawsuit. For example, co-workers sometimes spread unfounded rumors about who is up for promotion and who will be bypassed. Such gossip may give some employees an excuse to find a reason to sue ...

The EEOC has filed a lawsuit on behalf of Laura Vallejos, a former customer service agent for Northwest Airlines’ subsidiary, Mesaba Airlines, based in Eagan. She claims she was fired for refusing to work past sundown on Fridays, the beginning of the Jewish Sabbath ...

Federal law says employers are allowed, but not required, to make copies of the drivers' licenses and other documents that their employees show for I-9 purposes. But is it legally wise to make those copies? Attorneys are split on the issue. Here's our analysis, plus answers to six common I-9 questions ...

Title VII prohibits employers with 15 or more employees from religious discrimination. It outlaws treating employees or applicants differently based on their religion in any aspect of employment, including hiring, firing, promotions, discipline and pay. To help employers comply with the law, the EEOC issued new, specific guidelines in 2008.

Employees who have been terminated don’t have long to file a complaint about alleged discrimination. Employers that suspect they might be sued can capitalize on the short statute of limitations by starting the clock as soon as possible. Here’s how ...

Until recently, it was unclear whether reporting unsafe or illegal working conditions to an internal auditor or another responsible party was “protected activity” under the North Carolina Retaliatory Employment Discrimination Act (REDA). Now a federal court has decided that REDA may cover internal reports ...

Employers who end up losing discrimination lawsuits don’t just pay their own legal fees—they often pay the winning side’s fees, too. Always consider the ultimate cost before rejecting a settlement offer, or before pushing your own attorneys to appeal a case.

A federal court in Washington, D.C., has ruled against Elizabeth Howie, a 46-year-old black staffer for Rep. Eddie Bernice Johnson.  Howie claimed she was fired because of her race and age ...

A Dallas County jury decided that AT&T created a hostile work environment and retaliated after a call center employee complained. The jury found that race was a motivating factor in AT&T’s repeated failure to promote Lakecious Edwards and awarded her $411,339.

A recent federal appeals court decision shows how risky it is to ignore the interactive accommodations process spelled out in the ADA. In Talley v. Family Dollar Stores of Ohio (6th Cir.), the court held that the breakdown of the interactive process can, in and of itself, constitute a constructive discharge of an employee.

Terminations are the spark to many employment lawsuits. And for each of the six kinds, there are some common steps employers can take to make sure they defend themselves if the termination is challenged in court ...

Sometimes, it seems employees and their lawyers can take even the most benign evidence and find a way to twist it into a discrimination case — even something as innocent as including photographs of applicants and employees in personnel files.

Are you downsizing your holiday party this year? A Watson Wyatt survey says 37% of firms are scaling back end-of-year festivities—or canceling them altogether! Here’s how some businesses are coping, according to our sister e-newsletter The Admin Pro Forum. PLUS! News about a holiday party legal problem you might never suspect.

You’ve hired people of all races and religions, including a woman who wears a head scarf (hijab). But what do you say when that woman seeks a promotion to a more visible position? A few unwise words coupled with foot-dragging on the promotion and you’ll be wrapping your head around a religious discrimination lawsuit ...

There’s no substitute for boots on the ground when it comes to protecting employees from supervisors with hidden discriminatory agendas. If you ignore the warning signs of supervisor bias and leave the “bad boss” in place, it’s probably just a matter of time before you find yourself responding to a lawsuit ...

Employees who claim they were wrongly denied a promotion for some discriminatory reason (for example, based on race, age or some other protected characteristic) have the initial burden of proving they were qualified for the position they sought. The best protection employers have against such claims: clear, concise and accurate minimum job requirements ...

Alexander Bondarenko, a letter carrier, sued the U.S. Postal Service for constructive discharge and disability discrimination. The Postal Service argued Bondarenko wasn’t disabled because his back bad did not substantially limit a “major life activity,” as the ADA requires. Bondarenko disagreed. He said the back injury left him unable to have recreational sex ...

An Elkhart employer is off the hook for retaliatory discharge for now—but maybe not for long. Lisa Lubarsky was reportedly a good employee of INOVA Federal Credit Union in Elkhart. But then she sued in a South Bend federal court for retaliatory discharge under Title VII of the Civil Rights Act of 1964 ...

Sometimes, it takes a strong argument to get supervisors to pay attention. Want them to make absolutely sure no one is being harassed or discriminated against? Just remind bosses that turning a blind eye to workplace problems may cause them terrible legal and financial problems of their own ...

Q. How long am I required to hold a position open for an employee who is on leave due to pregnancy? ...

Two former employees of the Hempstead Sanitation Department have filed a sexual harassment and race discrimination lawsuit claiming their supervisor, Frank Pepe, offered perks and gifts in exchange for sexual favors ...

Having trouble persuading managers and supervisors to report ADA accommodations requests? Tell them they may be held personally liable for disability discrimination under Ohio state law, a much harsher fate than they would meet under the federal ADA ...

When you decide to give employees a pay raise—or deny them one—always document the reason. The key is contemporaneous, logical explanations. Few employees will succeed in proving that your reasonable rationale is really a pretext for some form of discrimination ...

New York state law prohibits discrimination based on actual or perceived sexual orientation. Employers can protect themselves from needless discrimination lawsuits by introducing a robust anti-discrimination policy and a clear and effective process for resolving complaints. Acting fast is the key ...

Hiring decisions are tough, especially when you add the worry over whether rejected applicants may think you discriminated against them. But as long as you don’t actively conceal critical facts about whom you hired, rejected applicants have to move fast to sue ...

Best Buy recently agreed to settle an age discrimination lawsuit with the EEOC that accused the company of failing to hire a 68-year-old applicant because of his age. Under the terms of the agreement, Best Buy will pay $17,500 to Reinhold Schouweiler on whose behalf the EEOC filed suit in 2007 ...

No matter how careful employers are, they still can be sued. Recognizing the risk, more employers are choosing to protect themselves with employment practices liability insurance (EPLI), which covers your organization if it’s hit with an employment lawsuit. But it’s important to know which coverage is right for you ...

Many employers looking for ways to deal with the financial hardships of today’s tough economy are considering reductions in force (RIFs), layoffs and other forms of organizational restructuring. But how you conduct a RIF may spell the difference between a fresh start for the company and a nightmare of litigation ...

The popularity of Internet blogs and social networking sites such as MySpace, LinkedIn, Facebook and Friendster is causing confusion and concern for some employers. At a time when it’s easy to search the web for information on just about anyone, what steps should a reasonable employer take to investigate the background of an employee? ...

It’s tough to keep up on all the latest changes in employment law. Busy HR professionals have to handle day-to-day problems and make sure new rules and regulations make their way into that routine. But it's vital to be up to date on new regulations relevant to your industry. Otherwise, you could face extensive, expensive and needless litigation ...

Title VII prohibits employers from discriminating against employees and applicants based on their religion. The EEOC recently published guidance to help employers deal with employees’ religion-based questions regarding time off, free speech, religious clothing and more ...

Despite much discussion about their pros, cons and legal implications, video résumés aren’t yet catching fire with employers or employees. CareerBuilder recently discontinued its video résumé service. Recruiters have shown little demand for them ...

Some supervisors like some subordinates more than others. As long as any personality conflict isn’t based on some protected characteristic such as age, race or sex, there is no need to worry that treating some employees more harshly than others will result in a winning lawsuit for the employee.

When Barack Obama takes office in January, get ready for the most sweeping employment-law changes the HR world has seen in years. Attorney Mike Fox walks you through the legislation likely to reshape HR, possibly even in the first 100 days of the Obama administration. Here’s how to prepare.

Test your knowledge of recent trends in employment law, comp & benefits and other HR issues with our monthly mini-quiz ...

An important—but often overlooked—step in performance appraisals is to ask employees to grade themselves. But don't just give them the same appraisal form used by supervisors. Instead, use a separate form that allows them to recap their achievements, identify shortcomings and initiate discussions regarding their development.  A good self-evaluation form asks these three core questions ... 

The Department of Homeland Security has, for the second time, issued a final rule on what employers must do when they receive "no-match" letters questioning the employment eligibility of their workers. Immigrant-right groups are preparing to oppose the rule. Next stop: a federal court in California, where a judge will decide whether the new rule is constitutional.

Test your knowledge of recent trends in employment law, comp & benefits and other HR issues with our monthly mini-quiz ...

It isn’t enough to fix discrimination and end harassment when you find out about it. Under California’s Fair Employment and Housing Act (FEHA) your organization has a duty to prevent it ...

The presidential campaign has everyone talking politics, and inevitably a lot of that talking takes place at work. As the campaign season moves toward the general election, many employers are re-examining their workplace policies concerning political activities and speech. Evidence suggests employers must educate employees concerning workplace political speech ...

Employment terminations fall into several categories. Whether the situation involves new hires who didn’t work out, firings for cause or performance issues, or voluntary resignations, terminations often lead to litigation. For each type of termination, there are some common ways employers can make sure they can defend themselves if challenged ...

A comprehensive document management system can help your business boost productivity, improve the bottom line and stay out of legal trouble. Here are three ways to organize files for easy retrieval, establish a record retention schedule and tame your wild email inbox.

When an employee sues over an alleged discriminatory firing, courts typically make a beeline for one piece of evidence: the employee’s performance evaluation. The problem: Supervisors are notorious for giving overly kind evaluations, even to poor performers. That’s why it’s wise to get another opinion: the employee’s own ...

When an employee announces she’s pregnant, her employer had better be aware of the federal pregnancy discrimination law, state maternity leave laws and the employee’s right to FMLA and pregnancy disability leave.

Employers and HR professionals should make it their policy never to hire a candidate without a comprehensive background check. But, they also must comply with the Fair Credit Reporting Act (FCRA), which regulates how employers perform employment background checks on job applicants. Contrary to popular belief, this federal law doesn’t cover just credit checks.

Q.  I am interested in setting up a college scholarship program at my company for employees and children of employees. Can this be done?

Final approval of a new I-9—plus the government's recent decision to back off on new rules for handling no-match letters—brings to a close a busy fall season in which employers’ role in immigration enforcement has been in the spotlight. What does it all mean for HR?

Congress gave final approval on Sept. 17 to legislation that will bring more Americans under the umbrella of “disabled” under the Americans with Disabilities Act (ADA). Here's what the bill means to HR professionals and U.S. employers ...

When economic downturns lead to layoffs, companies can expect former employees to be bitter—and maybe even angry enough to look for reasons to sue. Before you announce layoffs, document the internal business evaluations that led to the terminations. That way, you will be ready if a lawsuit seemingly comes out of nowhere ...

The ADA Amendments Act of 2008—signed by President Bush Sept. 25 and taking effect Jan. 1, 2009—will require HR professionals to thoroughly review all policies and practices involving employment of people with disabilities. Here's a run-down of the major changes under "the new ADA."

Some employees may believe their co-workers and supervisors are out to get them because of race, sex or some other protected characteristic. Then they look for evidence to support those beliefs. They catalog every slight for future reference—maybe in a lawsuit. Your best defense against such litigation is a well-established progressive discipline system ...

Managers who raise potential discrimination claims to upper-level managers and then tell affected employees about the problem are protected from retaliation under the Ohio Revised Code’s employment discrimination sections ...

Employers that let supervisors add to or alter the way they conduct performance appraisals are playing with fire. For example, supervisors should never be allowed to assess things like tardiness and attendance using anything but official HR records ...

When employees file discrimination charges, they often worry that they will somehow suffer retaliation. In fact, their attorneys frequently remind them that retaliation is illegal and that they should be on the lookout for it. Tacking retaliation charges onto discrimination claims is big business for lawyers. That’s why it’s critical for managers to understand they simply cannot retaliate ...

New York City employers, beware: The sky may be the limit for discrimination damage awards. Federal law limits punitive damage awards in Title VII discrimination lawsuits to no more than $300,000 for large employers. New York state law doesn’t allow them at all. But the New York City Administrative Code discrimination provisions allow juries to award unlimited punitive damages ...

When the U.S. Supreme Court decided the Lilly Ledbetter case in 2007, employers were thrilled. The court ruled that employees have to move fast after being denied a promotion or experiencing some other allegedly discriminatory act. Otherwise, they lose the right to sue for sex discrimination. But now, that tight deadline is beginning to slip as federal trial courts look for ways to give employees their day in court ...

Some employees—confronted with their own shortcomings—insist on deflecting blame. Perhaps they try to argue that so-and-so—who doesn’t belong to the same protected class—always gets away with the same poor work and conduct that they’re being criticized for. If you truly believe there is no merit to such an employee’s allegations, you probably don’t need to sweat it ...

If your organization is operating under a strict federal court order to correct past discrimination, be aware of this reality: The federally appointed special master has vast power to decide whether discrimination is still occurring and to fix it. It’s unlikely you will be able to move a current case directly into federal court for a quick dismissal. Your best bet is to develop a close working relationship with the special master ...

Do criminal background checks lead to bias? The EEOC will have to weigh that question when it investigates discrimination charges filed against Madison Square Garden by Charlene Clarke. Clarke, a black woman from the Bronx, accepted a food worker position at The Garden in September 2007. One month later, the arena withdrew its offer after Clarke’s background check revealed a misdemeanor assault charge ...

“The World’s Most Famous Arena” faces a discrimination lawsuit by a suite attendant, Laura Ward, who claims she was denied a prime assignment because of her gender ...

The Texas Supreme Court has ruled that employees who want to sue for most kinds of employment discrimination under Texas state law must use the provisions of the Texas Commission on Human Rights Act. They can’t sue under the Texas Whistleblower Act in an effort to sidestep the CHRA’s rather complex procedures or miss its short filing deadlines ...

Employers know they can’t retaliate against employees for speaking with EEOC investigators about possible discrimination ... But what about simply standing by as a spouse or significant other sues the same employer? Do you have to worry that
any job changes for the silent spouse will spur a successful retaliation lawsuit?

Employers that wrongly regard injured employees as disabled by refusing to consider them for any open positions may be setting themselves up for “regarded as disabled” litigation. The ADA makes it illegal to discriminate against employees by assuming they are disabled when they are not ...

Two key federal laws have changed, affecting how employers handle wage-and-hour issues. A new federal minimum wage went into effect in July, and civil penalties for child-labor law violations increased in May. Here is a summary of each development ...

Q. We use a full-service employee leasing company. Are we exposed to liability for employment claims brought by leased employees? ...

You view your employee referral program as a hands-down success, but take a closer look at those referred candidates. Do they have the same skills, backgrounds, racial and ethnic traits as the people who referred them? Has that led to a homogeneous-looking workforce? That’s a big red flag. It indicates that your referral program may actually be creating what recruiting consultants call “employee inbreeding.”

By now you know that employers can’t fire or otherwise punish employees because they’re pregnant. But what about employees who choose to have an abortion? Make sure your supervisors know it’s illegal to discriminate against them, too.

For most employees, regular attendance is a key job function. But while you are free to set and enforce attendance rules, you must also comply with key federal laws, including the FMLA and the ADA.

Q. Our office manager, who is pregnant, has begun coming in late two or three times a week due to morning sickness. Because she is a salaried employee, we know that we cannot deduct from her wages for partial-day absences. Can we change her position to one that is paid on an hourly basis until she returns from her maternity leave? ...

Timothy Walker was hired in 1995 at the Lafayette, Ind., plant of Alcoa Inc., based in Pittsburgh. Walker also served as a pastor at an area church. In May 1998, when he was appointed head pastor, Walker asked to be excused from work on Sundays ...

Memories fade and employees come and go. That’s why it’s crucial for HR to keep certain records for future reference. Among these records are organizational charts showing who had supervisory and other authority over other employees. Why? Lawsuits over lost promotions or firings can take years before they actually go to trial ...

When it comes to reporting sexual harassment, employees have an obligation to use their employer's complaint process, even if doing so may be uncomfortable. If they don’t, they may lose the right to sue for a hostile work environment. But what happens if an employee has tolerated mild harassment for years without complaining? ...

Question:  “Our new department head makes many inappropriate comments. For example, he told a co-worker that because I’m really old, he doesn’t know how I will fit into his future plans. Later, he directly asked me if I was thinking of retiring. I’m 53 and have worked here for 21 years. The thought of retirement has never crossed my mind. Another incident occurred when a young co-worker and I were laughing about something. The boss said that we got along very well considering our age difference. He also makes comments to women about their anatomy or weight. Everyone finds his remarks offensive. He’s our top manager, so what can we do?” — Insulted

HR Law 101: The Genetic Information Nondiscrimination Act (GINA), signed into law in May 2008, prohibits employers with 15 or more employees from discriminating against job applicants or employees based on their genetic information in hiring, firing, compensation or any other terms of employment.

Ever since the U.S. Supreme Court declared that the threshold for retaliation is much lower than for discrimination itself, employees who have filed discrimination complaints are finding that by charging retaliation, they get a second chance to drag their employers into court. That’s why it is absolutely crucial for HR to train supervisors and managers on retaliation ...

If employees ask for Sundays off from work for religious reasons, must they attend services in an actual church or synagogue that day? A new court ruling clarifies that the answer is “no” ...

Poor communications with employees isn’t just bad for business. It also creates a work environment that’s ripe for legal trouble. Stay out of the courtroom by taking time to explain your actions and make the workplace seem rational to employees. Here's how.

Q. We’ve repeatedly warned a part-time employee about clocking in earlier than he’s supposed to—sometimes more than an hour early. We know that we have to pay him for any hours worked, but what can we legally do to get him to work only the hours set for his position? Also, can we reprimand a co-worker who has been clocking in for him? ...

Do you have to treat transgendered job applicants differently? Which box, if any, do you check on the application—male or female? And what special laws must you know about?

The alphabet soup of federal HR laws—ADA, ADEA, FMLA and so forth—comes with a side order of compliance headaches. But some of those laws apply only to some organizations. Don't waste your time worrying about compliance if you don't have to. Here's the skinny on which laws you might be able to ignore—and which you absolutely must not ...

HR Law 101: Under the Age Discrimination in Employment Act of 1967, employers with 20 or more workers can’t engage in personnel practices that discriminate against individuals age 40 and older. Most age discrimination cases grow out of wrongful discharge and mandatory retirement policies, but they can involve any adverse change in working conditions ...

HR Law 101: When designing compensation plans, employers should take into consideration whether the pay schedules have a negative impact on older workers. Several pay discrimination cases have reached the Supreme Court in recent years ...

Ah, the “halo effect”—the practice of inflating an employee’s annual evaluation to increase overall morale and avoid the unpleasantness of telling underperforming workers what their weaknesses are. Too bad using the halo strategy both undermines performance and exposes employers to legal risks ...

Harassment and retaliation claims are on the rise in workplaces across the country. Some cases are legitimate, but many are not. They’re brought by employees seeking to have a court rule on trivial workplace disputes that have no sufficient factual or legal basis. Now there’s a ray of hope for employers that have been victimized by such frivolous lawsuits ...

Memories fade and employees come and go. That’s why it’s crucial to retain certain records for future reference. Among the records you should keep forever are past organizational charts that show who had supervisory authority over other employees ...

If employees are at-will workers, you can fire them for any reason or no reason at all, as long as it’s not discriminatory. But, as a new ruling shows, supervisors should resist that quick-trigger urge if that employee recently voiced a discrimination complaint ...

Good—and somewhat obvious—news: Job applicants who are not members of a protected class can’t sue for discrimination on the basis that an employer’s hiring practices discriminate against minorities ...

It stands to reason that a manager who thinks enough of an applicant to hire her won’t turn around and fire her a few months later in a fit of discrimination, especially if the applicant belonged to a protected class. That’s why it makes sense to have the same people who made the hiring decision be part of the termination process if the need should arise ...

It seems like such a simple rule. Never comment on an applicant’s age or other protected characteristics. Remind managers it takes just one stupid comment to provoke a lawsuit. Emphasize that refusing to interview a qualified candidate because of a stated prejudice almost automatically qualifies as an adverse employment action. That makes it almost certain you will lose.

Firing an employee is never easy, but there’s no reason to try to justify your decision by piling on a litany of reasons to discharge a poorly performing employee. That just complicates the process. Chances are, a court won’t second-guess you if you simply stick to the strongest reason you have for the firing ...

Employees who belong to a protected class often sue for discrimination if they feel they have been denied training and education opportunities. That’s why you should carefully track what training courses or experiences you offer, the minimum qualifications for each opportunity and who ends up taking advantage of each one ...

Lockheed Martin will pay $2.5 million to an electrician for harassment he suffered at the hands of co-workers, including threats of lynching and use of the “n” word ...

 A counselor for the Hillsborough County Children’s Services Department (CSD) lost her disability discrimination case against the county in U.S. District Court for the Middle District in Tampa ...

In Michigan’s current tough economy, many laid off or fired workers are filing for bankruptcy. But that doesn’t mean former employees have given up on filing employment-related lawsuits. But these tight times have given employers an additional tool for finding out what they’re up against if they are sued ...

The ADA makes it illegal to discriminate against applicants or employees with disabilities. Typically, only permanent conditions count. But not always. Some temporary medical conditions also can constitute disabilities if they are severe enough at the time the condition exists ...

To avoid losing essential and talented employees, some organizations make promises about continued employment that later turn out to be hard to keep. It’s especially common in organizations going through transitions, such as mergers or moves to outsource internal functions. But the tactic can backfire ...

As a conscientious HR pro, you no doubt try to make the best employment decisions you can, based on legitimate reasons and valid evidence. But that doesn’t mean you have to treat the HR office like a court of law, spending weeks conducting investigations and sorting through evidence ...

The Bullard-Plawecki Employee Right to Know Act gives employees the right to review their personnel records. The law requires employees to make written requests to look at the files before they seek legal redress. Keep a clear record of all requests ...

Darryl Hall, a black warehouse worker for Detroit Forming Inc., will have his day in court after the Michigan Court of Appeals reversed a lower court’s ruling on his race discrimination case. Hall testified that company owner Leigh Rodney told workers at a shift meeting that if they didn’t like the way he ran the company, they could “go back and pick cotton.” ...

General Motors won summary judgment in a disability discrimination lawsuit after the company caught Christopher Peterson loading lumber into his car while he was on leave for back problems. Peterson had a long career with GM and had risen into the executive ranks ...

If there was ever a reason to involve your attorney in an EEOC investigation, here’s a powerful one: If a lone employee who brings an EEOC complaint claims you favored white employees, he may be able to expand his lawsuit to represent all nonwhite employees who were allegedly discriminated against, not just employees in his particular protected class ...

No doubt you have an employee handbook. It probably includes a disclaimer warning employees that the handbook isn’t a contract and that employment is at-will. Make sure each and every at-will employee signs an acknowledgment of receipt so you can prove he or she knew the handbook contained no binding promises ...

A federal judge has approved a $6.2 million settlement for more than 150 sheet metal workers in a 37-year-old lawsuit against a union notorious for racial discrimination ...

Former radio host Wendell “JD” Houston has filed a federal race discrimination lawsuit against CBS Radio in Manhattan. Houston claims he was hired to host WZMX-FM Hot 93.7 of Farmington, CT, because CBS wanted “an Uncle Tom, a black person who would stay behind the radio microphone and be heard but not seen.” ...

Still reeling from a protracted, embarrassing trial and punishing verdict in Anucha Browne Sanders’ sexual harassment suit against New York Knicks coach Isiah Thomas, Madison Square Garden (MSG) has quietly settled a sexual harassment lawsuit with former New York Rangers cheerleader Courtney Prince for an undisclosed amount ...

Q. What kinds of information and documents should we keep in our personnel files? ...

How do you handle internal discrimination complaints? If you use an ad hoc process, sometimes taking notes or preparing a report, you may be missing out on an important litigation advantage later. Develop a routine investigation process ...

When it comes to hiring or promotion decisions, courts will rarely meddle when companies make honest decisions—even if those decisions aren’t the best or most rational ones. Unless there’s some other underlying discriminatory reason, judges generally won’t second-guess even boneheaded decisions ...

If your organization operates in a union environment, much of the discipline you impose will be controlled by a collective bargaining agreement. But that doesn’t always mean that you will be able to avoid court battles over discrimination claims ...

Employers have a right to expect a certain level of decorum in the workplace. Employees fired for using crude language or engaging in threatening behavior won’t likely be able to collect unemployment compensation, since their own misdeeds caused them to become unemployed ...

When office romances sour, scorned lovers often use Title VII to allege that their former lover was a sexual harasser. And even if the lovers are happy, workplace romances can cause problems in the office or on the shop floor. If co-workers feel a love affair results in favoritism, the relationship may lead to charges of conflict of interest, harassment, retaliation or discrimination ...

Thirty-five percent of organizations offered retiree health benefits in 2007, up from 29% the year before, according to the Society for Human Resource Management. Even so, benefits analysts say organizations are under pressure to drop the coverage to save money and to lessen a costly liability line on their financial statements ...

You’ve probably got an ADA policy that extends reasonable accommodations to any disabled workers. That’s good. But are your managers following through? If your paper policy is the only thing granting accommodations, a court could make you pay the price … big time. As in punitive damages...

HR Law 101: Two laws govern U.S. immigration policy: the Immigration and Nationality Act of 1952 and the Immigration Reform and Control Act (IRCA) of 1986, which was amended in 1990. For each new employee hired, U.S. employers must complete a Form I-9, Employment Eligibility Verification. The I-9 establishes the employee’s identity and legal work status.

When employers make employment decisions based on sex stereotypes about caregivers or favor employees who don’t have family responsibilities, affected employees can successfully sue for family responsibilities discrimination (FRD) ...

If someone sues you because she didn’t get hired or promoted, the hiring manager better be able to explain the selection criteria. Many can’t. That’s why it’s crucial for HR to oversee hiring and promotion processes and make absolutely certain you can document how the decision was made ...

Just about everyone with an ounce of ambition wants to be promoted. But in most organizations, there’s only so much room for managers and supervisors. Still, failure to win a promotion is one of the most frequent triggers for discrimination lawsuits. That’s why HR should carefully track every employee’s performance and progress ...

If an employee sues you for discrimination despite your successful efforts to resolve her complaint, you may be able to recover your attorneys’ fees from the plaintiff. The reason: That’s a frivolous lawsuit ...

A worker walks into your HR office and makes allegations of harassment and a hostile work environment under the New Jersey Law Against Discrimination. You check the personnel file and realize that she actually is an independent contractor who provides services to your company. You’re off the hook, right? Not necessarily, according to the New Jersey Appellate Division ...

Q. My company recently terminated an employee. The employee claims that she is entitled to a letter outlining the reasons for her discharge. Is she correct? If so, how much information must we provide the discharged employee? ...

Employers often have to balance the rights of divergent protected groups in ways that seem impossible. Consider what happens when a local ordinance says you cannot discriminate against an employee based on sexual orientation, while state and federal law says you cannot discriminate against someone for a sincerely held religious belief ...

Here’s a trap you should be aware of: An applicant who sues when he isn’t hired often keeps on applying—and then turns around and claims that you “blacklisted” him in retaliation for the lawsuit. Here’s how you should respond ...

Do you suspect an employee may have a mental or psychological disability that may need accommodation—even though he hasn’t mentioned it? Tread carefully. If you assume the employee is disabled and he’s not, he’ll be able to sue you for regarding him as disabled. Here’s the best way to handle the matter ...

It may seem terribly unfair, but an angry employee with a discrimination ax to grind may sue your organization in multiple forums for almost exactly the same alleged offense. That’s one good reason to get an attorney involved right away. Your lawyer can push early on to consolidate all the claims into one ...

Q. What areas should we cover in our electronic communications policy? ...

Basing hiring decisions on the prejudices of your customer base is a sure way to land in court. Hiring managers can’t try to push off their bias onto a third party using excuses like “Our customers feel more comfortable dealing with [male or younger or white] employees.” That just won’t fly in court...

In day-to-day business, companies have every right to demand that employees follow the chain of command. They can require workers who have complaints about work processes or disagreements with co-workers to take up their issues with supervisors, and not go over bosses’ heads. If employees defy those rules, that can be insubordination—and it can justify termination ...

Have you ever suspected that one of your employees was not quite as injured or ill as he says? Employers certainly can insist on a medical examination to determine the exact nature and extent of workers’ medical problems—and any appropriate work restrictions. Just make certain you treat all injured employees the same ...

Fairness and equal treatment are basic tenets of the HR profession. But that doesn’t mean all discipline cases merit equal punishment, even if the offenses are superficially similar. You can—and often must—punish some rule breakers more severely than others. Just make certain you can justify the differences ...

Does your HR office take an active role in workplace investigations? If not, it should. By centralizing the investigative and decision-making functions, you increase the odds that your organization’s disciplinary decisions will be fair and evenhanded ...

Good news for employers: Employees who claim disability discrimination can’t sue under both state and federal laws. They have to choose whether to sue under the ADA or the North Carolina Persons With Disabilities Protection Act ...

Conventional wisdom says it’s best to refuse to offer any opinion when a prospective employer asks for a reference on an applicant you know may be a poor choice. But sometimes, you may feel compelled to give your counterpart at the hiring organization an honest “heads up.” Before you do, consider that the applicant may sue you if he doesn’t get the job ...

Few things spur a discrimination suit as fast as a manager’s misplaced paternalistic comment. Remind supervisors that employees should choose for themselves what promotion or training opportunities they want to pursue. Presumptions about what they might prefer or would be comfortable doing don’t belong in the workplace ...

Ever since the U.S. Supreme Court’s landmark Burlington Northern retaliation decision in 2006, employers have been struggling with exactly what to do while investigating wrongdoings. One vexing issue has been whether it could be retaliation to place an employee on paid administrative leave pending an investigation ...

The Indiana Court of Appeals reversed a decision by the Michigan City Human Rights Commission finding that Filter Specialists Inc. discriminated against two employees because they are black. Dawn Brooks and Charmaine Weathers were fired in 2003 for time-card fraud ...

Goshen-based Supreme Corporation, the nation’s leading truck body manufacturer, has agreed to pay $427,000 to settle a race discrimination lawsuit with the EEOC and seven former employees ...

As another year of double-digit increases in health care costs looms, employers are looking to save money wherever they can. Recently, many have tried to do so by implementing incentive programs designed to improve the health of their employees. But health incentive plans must comply with the Health Insurance Portability and Accountability Act's privacy and nondiscrimination rules ...

Employers have a legal obligation to provide a safe working environment, and that includes taking reasonable measures to ensure that violence stays outside the workplace gate. Your employee handbook should include “no violence” and “no threats” clauses, explaining that verified violence or threats mean immediate dismissal ...

You can use stable employment history as a legitimate selection criterion in hiring—if you do it right. The key is to allow employees to explain interruptions in their employment histories, ignoring those that could lead to a discrimination lawsuit ...

When conducting internal investigations into alleged wrongdoings, make sure you don’t treat employees who belong to a protected class (e.g., age, sex, race or disability) differently than others who may have misbehaved. As the following case shows, discharging one person based on an emotional reaction during an interview and keeping another who kept his cool under questioning may lead to a discrimination lawsuit ...

A lawsuit is the last thing you want after making a promotion decision. The best way to stay out of court is to insist on objective promotion criteria ...

The EEOC has filed a religious discrimination lawsuit against Folks, the metro Atlanta and North Georgia restaurant chain, for allegedly refusing to employ a woman because of her religious attire ...

Add tax insult to injury. A new decision by the Court of Appeals for the District of Columbia finally ends one of the most topsy-turvy cases in recent years. The court rejected arequest to review the reversal of a tax-free award for nonphysical damages. This tax treatment is only available for damages resulting from physical injuries.

Punishing someone who has filed EEOC or other discrimination claims is illegal. But that shouldn’t stop you from enforcing reasonable rules. Courts won’t ordinarily view as retaliation minor disciplinary actions that don’t cost employees any pay or benefits ...

Here’s a powerful reminder to managers and supervisors that they must follow the letter and the spirit of discrimination laws: A recent California appeals court that heard a reverse discrimination case upheld an attorneys’ fee award that was 35 times higher than the dollar amount awarded to the employee who had been discriminated against ...

You can’t legislate good taste. But that shouldn’t stop you from having and enforcing dress and grooming rules. How you enforce those rules, however, can make the difference between needless litigation and a productive workplace. Don’t joke around about an employee’s dress or style. Instead, call the person into a meeting and discuss the problem in private ...

The California Supreme Court has ruled that unions and their supporters generally are free to urge customers shopping in private malls to boycott retailers at that mall. The ruling builds on earlier decisions that held that free-speech rights granted to California citizens in the state constitution are broader than those in the U.S. Constitution ...

Virginia Schurmeier, an operations analyst for a food wholesale company, was fired for alleged poor performance. She sued, claiming the real reason was sex discrimination. Her proof: A male co-worker who had worse performance appraisals than she had wasn't fired ...

Lockheed Martin agreed last month to pay $2.5 million to settle a race discrimination suit brought by a black employee who was subjected to racist graffiti and oral harassment, including use of the “n” word and threats of lynching. The settlement is the largest award ever obtained by the EEOC for a single person in a race-bias case ...

Q. We have a part-time, hourly employee who usually works three days per week for 12 hours. If we don’t have enough work to fill the time, can we send her home without paying her for the unworked hours that week? — J.T., South Carolina ...

On-the-job racism in America is a growing problem more than 40 years after the Civil Rights Act made employment discrimination illegal. That's why the EEOC has launched a new education and enforcement initiative called E-RACE (Eradicating Racism and Colorism from Employment.).

The New Year often brings a flurry of activity from the many federal government agencies that address employment issues, and 2008 is no exception. We’ve got good news on employers’ control over workplace e-mail, bad news for employers who discriminate and mixed news for those who want to hire foreign workers.

If, like many organizations, you try to promote from within, make certain you have a clear process that someone in HR oversees. Otherwise, managers and supervisors who have specific people in mind for promotion may “tip off” some employees while leaving others in the dark, opening the possibility of discrimination claims ...

Here’s a trap that may catch you unaware unless you regularly compare jobs and who actually holds the positions. If two jobs are roughly comparable, but mostly women hold one of the jobs and mostly men hold the other and you pay one more than the other, you are asking for trouble ...

Some retail and service establishments strive to create an authentic experience for their customers. That may mean they seek out employees who can best create that experience. That “cultural authenticity” may be a bona fide occupational qualification, and rejecting applicants who don’t fit the mold may be legal. But don't go overboard and eliminate everyone who doesn't look or act authentic ...

Not every complaint to a manager constitutes protected activity, but some do. If an employee complains about what she reasonably believes is discrimination—using language that should tip off her employer that she’s raising discrimination—the complaint is protected ...

What seems like a joke to members of the majority can be deeply hurtful to members of a minority. These days, that’s a particular issue in areas with a large concentration of people of Middle Eastern heritage—such as Michigan. As the “war on terror” shows no signs of abating, it makes sense to remind managers and supervisors to stay away from any comments on ethnicity ...

Civil court cases can cost employers large amounts of time and money to resolve. Increasingly, employers have embraced arbitration as a way to curb these costs. But before you have all employees sign arbitration agreements, be sure to consider all the costs. You may find that arbitration isn’t the cost-effective strategy you think it is ... 

Q. A former employee has just filed a discrimination charge against us with both the EEOC and the Michigan Department of Civil Rights (MDCR). We are a small company, and the owner has suggested that we respond to the charge ourselves without using an attorney, as we previously have done in unemployment compensation cases. Is there any reason we should not represent ourselves in this case? ...

Are your managers giving you only half the story when recommending a termination? Watch out! As a new court ruling says, this kind of “willful ignorance” on your part is no defense to discriminatory conduct ...

It’s easy to become isolated in the HR office, especially if you are physically separated from the shop floor or other work locations. So it should come as no surprise that some things that go on outside your limited view may mean trouble. That’s why you need to keep open lines of communication between HR and the field. Make sure all employees know how and where to report sexually or racially hostile language or actions ...

The only thing between your organization and a discriminatory discharge verdict is the HR office. An impartial and cool-headed HR professional must oversee the process every time an employee is terminated. Keep careful track of exactly how the decision-making process moves forward in every case, and insist that HR have the final word on termination ...

Sometimes, employers may want to maintain some flexibility to handle unique leave situations. For example, what would your organization do if a valued, loyal and long-term employee developed a terminal disease? Would you allow him a “leave of absence” with continued insurance coverage until his death to save his family from financial ruin? You can, if you are careful about exactly how you go about it ...

Employers that give in to the temptation to punish a troublemaker for complaining about alleged discrimination set themselves up for a retaliation lawsuit. The irony, of course, is that often the underlying discrimination complaint will amount to nothing, while the retaliation case snowballs out of control. Even minor changes to an employee’s work schedule, routine or tasks may mean a large retaliation jury verdict ...

Kathleen Williams, a former teacher at Sauganash Elementary School in Chicago, is suing the city school district and the Chicago Board of Education for $5 million, claiming she was fired for being pregnant ...

According to a recent Northern District of Illinois federal trial court ruling, the EEOC doesn’t have to give employers more than a modicum of information when it files a federal discrimination lawsuit. Apparently, it’s enough to start a lawsuit with only general allegations that an employer “engaged in unlawful employment practices” ...

As of Jan. 1, 2008, employees have new rights under the Illinois Human Rights Act. The amendment, signed last August, permits employees for the first time to bring civil actions in circuit court and have their cases heard by juries. Originally, the Illinois Human Rights Act was a completely administrative, nonjury process for resolving employment discrimination claims ...

Q. We are an Illinois-based company and have an employee whose mother is very sick with cancer and in need of medical care at home. The employee is entitled to FMLA leave. The issue is that the mother lives in Hawaii and he has asked for leave starting next month. I don’t mean to be “cold,” but it sounds like a vacation from our bitter winter. Must we grant the leave for him to go to Hawaii? ...

Q. We don’t have a hotline for employees to call to complain about harassment, discrimination or retaliation. We have been considering one, but we are concerned about anonymous complaints. Should we set up one anyway? ...

Few HR dilemmas are as sticky as dealing with an employee accused of stealing from the company. Here's how to handle the situation with care, making sure your organization doesn't overstep its bounds and expose itself to liability.

When it comes to hiring good employees, you know that experience and education aren’t everything. There's nothing wrong with considering such “soft” factors as loyalty and reliability when making hiring decisions. Just make sure you don’t consider things such as disability, FMLA absences or other protected characteristics ...

The Texas Supreme Court has weighed in for the first time on an important interpretation of the Texas Whistleblower Act. Until now, a key term in the act was largely undefined: Exactly what is an “adverse employment action"? ...

It takes more than a trip to the family doctor, a diagnosis and a prescription to establish a disability and qualify for protection under the ADA. Employees who say they are disabled must be able to show that they are substantially impaired in a major life function. And taking medication may mean an employee is not disabled because it can reduce the effects of even serious illnesses ...

It’s important to carefully track each and every step of the promotion process, including the relative qualifications of those vying for open spots on the corporate ladder. Here’s why: Employees who claim they were unfairly passed over have to show that they were “clearly better qualified” than the chosen candidate ...

While workplace bullying certainly has existed for as long as mean people have worked alongside others, only recently has it emerged as an issue for the courts to handle. As awareness of “workplace bullying” arises, so does potential litigation and liability for employers ...

The IRS has issued a long string of regulations and rulings on “cafeteria plans” over the past 20 years. Even expert tax practitioners have trouble keeping up with all the stops and starts. But a new comprehensive set of proposed regulations look like the real deal. (NPRM REG-142696-05)

While the federal Equal Pay Act prohibits wage discrimination against women, it doesn’t require every employee in the same position to earn the same salary. If you can point to factors other than gender (e.g., seniority, education, experience, skills, etc.), you can set different salaries for employees who hold the same job titles ...

Employers can’t discipline employees for filing discrimination claims with state or federal agencies. That’s retaliation. But what if an employee is spouting off to co-workers and customers about how he’s suing to “get” the company? ...

All employers with a unionized work force, take note: Just because someone has an age discrimination claim awaiting resolution under your collective bargaining agreement’s grievance procedures doesn’t mean the employee can’t prepare to file a lawsuit. In fact, the employee may have no choice but to go forward ...

In an interesting Supreme Court of Ohio case, the high court has ruled that a lawsuit by an employer against an employee who filed an employment discrimination lawsuit against it is not automatically retaliation. The court’s decision overturned a long-held view of the Ohio Civil Rights Commission ...

Christina Johnson, a police officer for Olmsted Township who was fired for crawling into a stranger’s car while highly intoxicated and then passing out, will have the chance to convince a jury that she suffered discrimination. Johnson was off duty during the episode, but was wearing her uniform sweater ...

In the fall of 2007, the Ohio Civil Rights Commission’s proposed revisions to the rules governing pregnancy discrimination became a hot political topic. Due to some unusual political wrangling, the future of the proposed rule revision is very much in question ...

The EEOC has issued a final rule allowing the long-standing employer practice of coordinating retiree health benefits with Medicare without violating the age discrimination law. The new reg ends a seven-year battle to ensure  "bridge" coverage for younger retirees.

After using up their available 12 weeks’ unpaid FMLA leave, many new mothers request additional time off. If you agree to additional time off to be covered by a short-term disability policy, check to see if that policy includes job protection. If it doesn’t, you don’t have to hold her job or even reinstate her. Don’t, however, start the search for her replacement while the employee is still on FMLA leave ...

Concerned that any discharge decision you make will be second-guessed by a court or jury? Ease that worry by adopting a fact-based approach to discipline that relies on easily proven and verifiable work problems. Avoid generalities such as “just not working up to potential” or “not a team player and others have to pick up the slack.” Instead, go for the specifics ...

Many employers have strict policies on giving references for current or former employees seeking other jobs: Keep it simple—dates of employment, positions held and pay rates. But sometimes supervisors supply glowing recommendations anyway. They need to know that if they do, they had better be willing to stick with the accolades, even if their relationships with the employees change ...

Good news for public school employers: Employees who allege they have been discriminated against under the New York Executive Law have just one year to start litigation—as specified in the New York Education Law. Most other employees have three years to mull over their lawsuit options ...

Charlene Morisseau, a litigation associate in DLA Piper’s New York City office, lost a $250 million race discrimination lawsuit against the law firm. Morisseau joined the firm in 2003 and was fired in less than a year ...

Fourteen black employees of 180 Connect, a Farmingdale cable television contractor, have filed a lawsuit over a 2006 incident in which a supervisor hung a 15-foot noose in a warehouse. Although the EEOC investigated and eventually dismissed charges brought against the company, the suit alleges the noose was part of a campaign of harassment against black workers ...

Businesses must stay abreast of an alphabet soup of federal laws—ADA, ADEA, FMLA and so forth—each with its own requirements. Further complicating matters, most states have their own laws that override the federal requirements. To comply, you first must know which laws apply to your business, based on the number of people you employ ...

Conventional wisdom has been that isolated or “stray” remarks alone by an employer do not prove discriminatory intent. Conventional wisdom may be wrong. A recent 2nd Circuit Court of Appeals case (Tomassi v. Insignia Financial Group, Inc., 478 F.3d 111, 2007) has clarified what it deemed a misconception of the true meaning of the term “stray remarks”  ...

You must be prepared to show that you treated each and every employee equally when it comes to discipline. Otherwise, you may find yourself in the same situation as, in the following case, an employer that couldn’t recall how it had disciplined a white employee for violating an attendance rule, but fired a black employee for the same infraction ...

The ADA protects job applicants from discrimination based on disability, and one of these protections is the right to be free from medical tests or examinations as part of the initial selection process. An employer can ask an applicant to undergo a job-related medical examination only after it has made a job offer ...

When it comes to promotions, be sure that management team members in charge of interviews are all on the same page. That means ensuring they ask all candidates exactly the same questions and make thorough notes about each applicant ...

Opening arguments began in December in the federal civil trial of two U.S. Drug Enforcement Administration agents based in Philadelphia who are suing the U.S. Justice Department for reverse discrimination. George Marthers III and Jude McKenna, who are white, allege black former supervisors harassed them so severely that both men had to take medical leave ...

Jane Roberti worked as a loan officer for Allentown’s Becker Subaru. Her live-in boyfriend, Mark Wynne, also worked there as a salesman. Roberti’s responsibilities included funneling Internet sales leads to the salespeople. When employees began to complain that Roberti routed the best leads to Wynne, management counseled both to keep their personal and professional lives separate ...

The Pregnancy Discrimination Act prohibits discrimination against pregnant women and those who may become pregnant. It also makes it illegal to retaliate against these women. In an interesting twist, the actual ability to become pregnant isn’t particularly relevant as long as the employee who claims discrimination can show her employer thought she might become pregnant ...

Sometimes managers want to handle problems themselves and not involve the HR department or others in the chain of command. But telling employees to keep quiet and not complain to higher-ups actually may amount to retaliation. Threats and warnings, standing alone with no actual consequences, may be “materially adverse employment actions” when retaliation is the charge ...

A white environmental services attendant recently sued St. Vincent Carmel Hospital, claiming racial discrimination and retaliation. He was fired for violating the hospital’s anti-violence policy ...

Q. At a recent office get-together, two members of my staff announced they were officially dating. Our company has a strict policy that prohibits dating between a supervisor and a direct subordinate, but our handbook is silent as to relationships such as this one between co-workers. Are there any steps I should take to protect the company from liability? ...

When an employee sues you for employment discrimination, it’s natural to want to learn more about the person suing you and whether he may have sued others. That information is readily available. But don’t expect that even a fraud conviction related to false employment claims will get the case tossed out ...

There’s an easy way to avoid losing a discrimination lawsuit stemming from disciplining an employee who breaks company rules: Make absolutely certain you discipline fairly and evenhandedly, meting out punishment regardless of race, sex, nationality or other protected characteristics. Conduct regular audits of all disciplinary actions to make certain no one gets a free pass ...

A Mexican woman has been granted permission to serve as the lead plaintiff in a class-action lawsuit against a company that recruits and places temporary agricultural workers on farms and other agricultural operations in North Carolina and other states. The woman claims that International Labor Management Corporation purposely placed women in less lucrative temporary visa programs than men ...

Both the ADA and the New Jersey Law Against Discrimination make it illegal to retaliate against disabled employees who engage in what the law calls “protected activity.” Filing an EEOC complaint, testifying against an employer or cooperating in a government investigation are protected activities. So are more informal activities, such as discussing accommodations with a supervisor or HR ...

Sometimes, a problem employee claims harassment as a way to protect herself from legitimate discipline. When that happens, it may be tempting to ignore such claims on the presumption they are bogus. It may be tempting to dismiss her complaints as much ado about nothing. But you’ll ignore her at your own peril ...

Sometimes, workplace rules conspire to give a second chance to a problem employee with a history of harassment or intimidation. If you don’t carefully monitor the second-chance worker’s behavior, chances are the inappropriate conduct will rear its ugly head again. Then, in addition to harassment and discrimination liabilities, you may be on the hook for negligent supervision, too ...

If, like many employers, you want to avoid the risk of a jury trial or a judge’s unpredictable decision, you may have considered requiring employees to agree to use arbitration to settle workplace disputes. But if the agreement doesn’t conform to New Jersey’s contract laws, you may end up spending time and money defending the agreement instead of arbitrating disputes ...

Paulsboro High School has settled a gender discrimination lawsuit with its former principal, Lucia Pollino, who was suspended for six months with pay in April 2007 over allegations she let students be strip-searched ...

Q. A former employee has brought a charge of racial discrimination under Title VII of the Civil Rights Act. I employ 10 people. Will I have to defend this claim? ...

A workplace affair can wreak havoc if the couple breaks up—especially if one is a supervisor. There may be a sexual harassment claim lurking in the affair. But that’s not the only problem. Sometimes an office affair can create an uncomfortable situation for other employees ...

If you receive a discrimination complaint, conduct a prompt and thorough investigation. Then have an independent party decide on any discipline. If the investigation was independent and the decision-maker was not the same person who allegedly discriminated against the employee, it won’t matter if the decision-maker was wrong—just that he or she believed the reason was genuine ...

Even employees who are no longer working day to day in a hostile environment can sue for harassment. Every federal circuit appeals court that has considered the question has sided with the absent employees on the principle that a hostile work environment may extend beyond the physical workplace ...

The EEOC last month issued an extensive fact sheet that explains how federal anti-discrimination laws apply to pre-hire tests. The nonbinding guidance focuses on the best—and legal—practices for cognitive tests, personality tests, medical exams, credit checks and criminal background tests ...

Here’s a test that measures your broad knowledge of the HR field. From the FMLA to comp and benefits to employee behavior you’d rather not know about, we’ve got the questions. Do you have the answers?

While no employer should condone any form of workplace harassment, it isn’t always necessary to terminate the alleged harasser. After all, sometimes it may be a matter of “he said/she said,” making it tough to sort out what really happened. That’s likely if there are no witnesses. In those cases, the best move may be to separate the parties ...

When you catch an employee red-handed breaking a rule and you have solid evidence on your side, it seems like a no-brainer to fire him. But when you do, keep this in mind: If you lose an incriminating tape, e-mail or handwritten note, expect to lose the case ...

It may seem obvious, but it bears repeating: Tell supervisors and managers to avoid discussing religion if at all possible. And never, ever use blunt terms to make an employee choose between her religion and her job. Instead, focus any discussion of religious accommodations on the company’s legitimate needs ...

One of the fastest paths to a nasty race discrimination case—and all the bad publicity that follows—is for a supervisor to make a racist comment. If that supervisor is then involved in any disciplinary action against the employee, chances are those earlier comments will provide the employee with direct evidence of discrimination ...

A recent federal trial court decision means employees can’t sue to challenge the constitutionality of a Michigan workers’ compensation ruling in both state and federal courts. That’s good news for employers that now won’t have to fight it out in both courts at the same time ...

Gov. Jennifer Granholm has issued an order barring discrimination against state workers based on gender identity or expression ...

Employers can’t discriminate against employees because of their honestly held religious beliefs. On the other hand, those religious beliefs don’t give employees the right to alter their jobs based on those beliefs. This is especially true for public employees who might expose their agencies to First Amendment establishment clause litigation ...

Sometimes it becomes painfully obvious you’ve made a hiring mistake shortly after the new employee clocks in on day one. If, during initial training or on the first assignment, you know the employee will not meet your legitimate expectations—and you can substantiate your impression—it may be best to admit the mistake and discharge the new employee ...

You’ll never be able to completely eliminate romantic involvement between co-workers, but you can and should take steps to ensure peaceful coexistence in the workplace once a relationship ends. Just make sure you enforce the rules evenhandedly against both males and females ...

Many serious conditions aren’t disabilities at all under the ADA. It all depends on how the condition affects the person’s daily life. That’s why it’s important to gather as much information as possible before you concede that an employee is disabled. Many times, the claimed condition just doesn’t measure up ...

If you thought last year’s U.S. Supreme Court decision in the Ledbetter case made it clear that employees must file EEOC complaints within 300 days of suffering a discriminatory pay decision, think again. That deadline applies only to sex discrimination cases brought under Title VII of the Civil Rights Act ...

Jacqueline Bowbin sued Bulkmatic Transport Inc. for gender discrimination, alleging violations of the Equal Pay Act. In 2006, Bowbin claims, her supervisor told her she would be well into a six-figure salary with bonuses and stock compensation. But that year, Bulkmatic apparently did not award either, companywide. Bowbin cried gender discrimination ...

Your organization could be missing out on some top talent if you shrug off the new high-tech applications and résumé tools that could someday make paper résumés obsolete. Here are some of the more popular high-tech methods that candidates (especially young ones) are using to market themselves, plus some of the advantages and disadvantages of welcoming them ...

Employers can manage employees' religious needs without simply exempting religious employees from weekend work. Here’s how: Simply design a system that rotates shifts so everyone gets a turn for weekend days off; then tell those seeking religious accommodations it’s up to them to arrange shift swaps ...

The U.S. Supreme Court has agreed to hear an important employment-law case, Huber v. Wal-Mart Stores, that will decided whether disabled employees who are returning to work are entitled to a preference for open positions.

With health insurance premiums outpacing inflation for what feels like the hundredth year in a row, employers are looking for innovative ways to cut costs. Many are taking a fresh look at wellness programs. So is the EEOC.

Nothing will send a discrimination case to trial faster than obvious unequal treatment of employees. That’s why it is important to have someone in HR do a complete review before the company discharges someone for poor performance or rule violations ...

Federal employees who report alleged wrongdoing by the agencies they work for are entitled to special protections for their whistle-blowing actions. But they also have obligations—if they believe they have suffered retaliation, they must bring an administrative claim before the U.S. Merit Systems Protection Board before filing a lawsuit in federal court ...

A “perfect storm” of an aging work force, escalating health care costs, more obese and sedentary employees and a looming shortage of skilled workers could drive organizations to make their wellness programs mandatory within a few years ...

If, like many employers, you would rather avoid litigation by relying instead on arbitration to settle workplace disputes, you probably know that employees still may take their claims to the EEOC. That’s because the agency claims an interest in knowing whether employers are following the nation’s anti-discrimination laws. But it’s perfectly legal to force an employee into arbitration over those same claims ...

It may be a busy, hectic and crazy workplace, but that doesn’t excuse supervisors and managers from providing updated and accurate job descriptions and documenting job performances. Workplaces that neglect those essential duties face huge lawsuit risks ...

Although there is no blanket rule against transferring someone who has been involved in a romantic relationship with a co-worker, make sure the transfer benefits the transferred party and can’t be viewed as punishment. Otherwise, the transferred employee may claim retaliation ...

A court has awarded $4.4 million to a Seattle woman who worked at a Goodyear store and endured harassment—and eventual retaliation—because she is gay ...

The Ohio Supreme Court has narrowed the scope of the public-policy wrongful discharge claim in Ohio. In Leininger v. Pioneer Nat’l Latex, the Ohio Supreme Court said employees couldn’t claim wrongful discharge after being fired for speaking out on alleged age discrimination. Here’s what the decision means ...

Q. Heading into 2008, are there any changes to Ohio law that employers need to be aware of? ...

Technically, favoring friends and family members for jobs and giving them plum assignments isn’t illegal. But if nepotism results in an all or mostly white work force, applicants or employees from other protected categories (e.g., race, gender, national origin) can still sue, claiming illegal discrimination ...

No employer is immune from employee lawsuits. But there is a lot you can do to lessen the impact of lawsuits that do occur—before they cost huge expenditures of time, effort and money. One of the best ways to ensure the quick dismissal of frivolous claims is to have information at your fingertips, especially disciplinary data ...

Employees who retire to avoid facing internal disciplinary charges can’t turn around and claim they were constructively discharged. That’s why employers might want to consider offering retirement in such cases as an option in lieu of discipline ...

If, like many employers, you maintain a sick leave bank for employees who exhaust their available leave time, remember this: You’ll risk a retaliation lawsuit if you deny the use of banked time to an employee who has filed a discrimination claim ...

Difficult employees may be sensitive to perceived discrimination—especially if they also happen to be members of a protected class such as race, sex or national origin. They may think they have to work harder and appear smarter than others. If they lose a plum assignment, that may be enough to spur a discrimination lawsuit. That’s one reason you should carefully document how you handle easily bruised egos ...

We all would like to believe harassment and discrimination can’t happen where we work. Of course, we’re dreaming if we do. Ordinary people sometimes fall back on old stereotypes or react strongly to newly perceived dangers by inappropriately striking out at a group or nationality. Fortunately for employers, isolated acts of harassment, if stopped dead in their tracks, won’t come back to haunt them years later ...

Because the U.S. Supreme Court ruled earlier this year that employees must make wage discrimination claims right away, it’s more likely than ever that employees who find out they are making less than a newcomer of a different race, sex or national origin will seek legal counsel. That’s why you must be prepared to explain each and every wage difference with solid business-related reasons ...

Employers are generally free to transfer employees where their skills can be best utilized. Of course, some employees resist such moves, especially if these actions are perceived as undesirable transfers or even demotions. That’s why, for every transfer, you should make a clear assessment of who has what skills and talents ...

The U.S. Citizenship and Immigration Services (USCIS) has just released a revised Form I-9, Employment Eligibility Verification, for immediate use and a new M-274, Handbook for Employers, Instructions for Completing the Form I-9 ...

Many discrimination lawsuits are the direct result of poor performance appraisal processes. A supervisor who is eager to maintain a cordial and productive workplace may hold back on legitimate criticism to avoid rocking the boat. This tactic can backfire badly once a new supervisor begins enforcing productivity rules and downgrades an employee previously rated “stellar.” If that employee is also a member of a protected class, look out ...

The Indianapolis Fire Department has agreed to pay $350,000 to settle a sexual discrimination suit filed by a female captain. The captain claimed she was harassed, unjustly disciplined and not considered for promotion ...

What would you do if an employee came to you saying that your company’s official anti-discrimination policy wasn’t actually keeping discrimination out of the workplace? That’s what happened to CEO Raymond W. Smith of Bell Atlantic.

If your company’s business strategy includes promotion from within and constant innovation, unambitious employees may serve as poor role models. You may, in fact, want to ease them out in favor of new employees. Before you do, consider ways to light a fire under the feet of complacent employees. Here’s why this is crucial ...