Employment Law

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Public employees have the right to free speech, and they’re free to support any political candidate they want—even when they oppose their bosses who are running for office.
Here’s a bit of positive news on the litigation front: An employee who is in the very first stages of litigation can’t demand the court force his employer to provide a list of names and addresses for all its employees. Instead, the employee has to first provide some proof of his own, individual claim before he can invade other workers’ privacy.
Public employees have the right to free speech and can’t be punished for exercising it. But that doesn’t mean they can say anything, anywhere. The exercise of free speech must concern a matter of public importance and not be done as part of the employee’s job.
Q. We have an experienced employee who is not working at an acceptable pace. We need to address his speed, but we’re concerned he may have medical issues. Can we ask him about his health? — Anonymous, Illinois

Employers that take their time to discipline troublesome employees who refuse to follow the rules often make out well if that employee later sues. That’s because they will have clear and unambiguous evidence that the employee deserved the discipline—not because he was a troublemaker, but because he couldn’t follow the rules others did.

Employers that praise employees for a job well done and provide pay increases along with promotions rarely lose so-called constructive discharge lawsuits. That’s because an employee who has been praised and rewarded will have a tough time claiming her working conditions were so onerous that she had to quit.

No doubt you have been warned many times that the best way to avoid discrimination lawsuits involving discipline is to treat everyone alike. The assumption is that by always being fair and punishing the same behavior, rule violation or poor performance the same, no one can argue that they were demoted, suspended or fired because of their protected status. But there is a situation in which you can—and probably should—treat some employees more strictly as a class.

Nobody likes a serial litigator, but don’t fall into the trap of punishing an employee for repeatedly filing lawsuits.
Continuing its attack on misclassification of employees, the U.S. Department of Labor has released new guidance that clarifies how companies should distinguish between employees and independent contractors.
To classify workers as either employees or independent contractors, the Department of Labor says employers should use this “economic realities” test.
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