As seen in the January, 30 2012 CT Law Tribune

Last year was a record-setting year for the Equal Employment Opportunity Commission.  It received more charges than ever, resolved more charges and obtained more monetary relief through mediation than ever, and reduced its pending charge inventory by nearly 10 percent.  The agency secured several multi-million dollar consent decrees in class actions against large employers.  To top it off, the EEOC accomplished these feats despite a hiring freeze.

The EEOC is on an upswing, so compliance is more important than ever.  Employees are filing charges in record numbers, in part due to outreach programs in which the EEOC encourages employees to go after employers who have violated the law.  In addition, the mandatory EEOC poster contains a toll-free number for employees.  For details of this program, click here .

As with many of the Obama Administration’s initiatives, the revitalized EEOC is not about changing the law but about increasing scrutiny.  This can be more significant for employers because new laws do not necessarily lead to more enforcement, but when an agency steps up enforcement of existing laws, employers need to be ready.

Take this opportunity to make sure you know whether you are in compliance.  Have you trained your supervisors?  Do your employees, and more importantly supervisors, understand the ramifications their behavior can have for the company?  Is your handbook up to date?  When did you last have an HR audit?  Make sure your company is ready if the Government focuses on you.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  We also help employers with all aspects of Human Resource audit and compliance strategies.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Checking job applicants’ credit as part of the screening process is a common practice, but it is declining.  In 2009, when only two states prohibited such inquiries, a survey by the Society of Human Resource Management reported that 60 percent of employers checked the credit of at least some prospective hires.  Only a year later, that rate dropped to 47 percent.  We expect that rate will continue to fall.  Simultaneously, employers are realizing that screening everyone is generally a poor idea.  For example, in 2010, only 13 percent of employers conducted credit checks on all prospective hires. 

Advocates of checking credit say it can help screen out irresponsible applicants and even future criminals.  A study by the Association of Certified Fraud Examiners found that the two most powerful indicators of potential fraud are living beyond one’s means and experiencing financial difficulties.  Even though not everyone with those indicators commits fraud, the information is valuable to companies who will suffer if they pick the bad apple.

Opponents argue a bad credit report may be a result of financial struggles that are not the employee’s fault, such as a serious illness in the family or a layoff.  Many credit reports contain errors and others may be flawed due to identity theft.  Some argue discrimination based on credit puts people in a catch-22 where they cannot pay their bills because they have no income, but they cannot find a job because of their poor credit.

Employers who check credit need to ensure they comply with applicable state laws and should consult with counsel to determine whether the exceptions for employees with financial access apply in their specific case.  Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

While Tradewinds’ conduct was clearly out of bounds, many employers wonder how much information to give when providing a reference.  A few states, like Illinois, provide immunity for references given in good faith.  But in most states, employers are stuck between a rock and a hard place.  Give negative information and face the possibility of a defamation suit; give neutral information about a problem employee and face the possibility of a negligent referral suit or maybe just a guilty conscience. 

Truth is usually an absolute defense to defamation, so stick to the truth.  Also, statements of opinion cannot give rise to liability.  But take note – simply calling something an opinion is not a shield.  Saying “In my opinion, John stole a company laptop” can get you in just as much trouble as saying “John stole a company laptop” if it’s not true.  Also, can you prove that “true” statement?  You fired Johnny for coming to work under the influence but you never had him tested.  Can you prove he was drunk? 

The safest route is to give only the bare facts: position held, dates of employment, and compensation.  Although your company can be sued by the new employer if you negligently withhold key information, this kind of lawsuit is rare and occurs most often when the former employer failed to disclose warning signs or history of violence.  However, if you believe a good corporate citizen should do more, you can, but check with counsel on the safest ways to do this. 

The good news is employers may give as much or as little information as they please, and are usually protected if the information is true.  Employers can help protect themselves by asking the employee to sign a release before you give a reference.  In fact, some states require this, so it is a good practice.  For more complicated situations, consult with an attorney to discuss how best to handle the issue.  Employers should have a clear reference policy that defines who is allowed to give references and what will be said. 

Brody and Associates regularly advises management on personnel matters, including employee reference policies and releases.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Do you want to hold a company holiday party, but worry about being sued?  In the past, employers have faced worker’s compensation claims for holiday party injuries as well as lawsuits for sexual harassment, drunk driving by employees, and religious discrimination.  Some companies are asking employees to sign holiday party waivers, but they won’t be effective if a third-party is injured, not to mention that a court is unlikely to enforce a waiver of a sexual harassment claim signed before the offensive conduct occurred.  Instead, focus on prevention.  Following these tips can help you protect your business from costly litigation without putting the kibosh on holiday cheer. 

First, make it clear that participation in the party is entirely voluntary.  This simple step may protect your company from a worker’s compensation suit if an employee is injured.  Also, some employees may be uncomfortable attending a holiday party for any number of reasons, so keep it optional.

Second, many of the sexual harassment, worker’s compensation, and drunk driving matters can be prevented if alcohol consumption is reduced or eliminated.  Surveys show that alcohol-free workplace holiday parties are about as common as those with alcohol.  If you decide to provide alcohol, consider limiting consumption through drink tickets or a cash bar.  Inviting spouses and significant others is a good idea.  Their presence can temper drinking and inappropriate conduct toward coworkers.  Holding the event at a restaurant where bartenders serve the drinks can also help limit your liability in the event of injury to third-parties.  Also, encourage designated drivers or provide taxi vouchers to keep impaired drivers off the road. 

Finally, remember to respect the diversity of your workplace.  Many companies employ workers of different faiths, and a holiday party should not make some employees feel excluded.  A “winter celebration” or “New Years’ party” is likely to make everyone feel comfortable.  Neutral decorations keep the party festive but non-religious.

Office holiday parties provide a great opportunity to reward employees, build camaraderie, and celebrate the season.  Considering and addressing the risks can keep the holidays fun and joyous for you and your employees.

We wish everyone a happy holiday season.  We offer assistance to management on these and all types of employment-related issues.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

 A substance abuse counselor working for a nonprofit company went on FMLA leave to recover from knee surgery in 2003.  He took FMLA leave again in September 2008, for knee pain.  He exhausted his FMLA leave in the middle of December.  The employee submitted a doctor’s note stating he would need leave for a longer period of time. 

When his leave was exhausted, he failed to give a return to work date or a fitness for duty certificate.  Instead, he asked that the employer make a reasonable accommodation – hire a substitute counselor and allow him to take an indefinite leave of absence until he was fully recovered.  The employer terminated his employment while he was still on leave, claiming this accommodation created an undue hardship. 

The employee sued under the ADA.  The court found his request was not a reasonable accommodation and the employer was justified in terminating him.  Under the ADA, an employee has to be able to perform the essential functions of his job, with or without a reasonable accommodation.  The Court found the employee was unable to perform one of his essential job functions – coming to work regularly and on time.  Often, an accommodation allows the employee to perform the job without pain or with greater ease.  However, here, the accommodation request of an indefinite leave did not enable him to work.  More importantly, its indefinite tenure was unreasonable.

Employers should always take great stride to consider an employee’s request for accommodations; remembering that such consideration should be an interactive process between the employee and the company.  With the new amendments to the ADA, it is likely there will be increased accommodation requests.  Employers should consult with counsel or their Human Resources staff when evaluating such requests.  Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The drivers claim Hertz, at the Seattle-Tacoma International Airport, fired them because of their religion.  However, Hertz explains they fired the drivers for failing to clock out and in for prayer breaks.  Washington State law allows for two ten minute breaks.  Hertz never denied any employee a break, and has accommodated the prayer schedules of its Muslim employees for over fifteen years.  Hertz even designated a space for prayer.  Finally, under its collective bargaining agreement with Teamsters Local 117, the employees are required to clock out and in when taking their ten minute breaks.  Despite all this, the drivers began abusing their breaks, leaving for more than ten minutes to do non-prayer related things and failing to clock in and out.  Hertz verbally warned the employees that they were violating company policy, counseled the employees, and then issued written warnings after the conduct continued.  After continuing to ignore the clocking in and out policy, the employees were discharged. 

The employees claim Hertz discriminated against them because of their religious requirement to pray at certain times.  Hertz continues to deny such a discriminatory motive.  Hertz explained it has several other Muslim employees who follow the company’s clocking in and out policies and who were not fired.  Also, eight of the discharged employees have since received their jobs back, because they agreed to clock out and in for breaks.  Hertz says it will reinstate the other discharged employees if they also agree to follow the policy.  In the meantime, the union has been protesting outside Hertz.  It will be interesting to see if they file a lawsuit against the company. 

For now, employers should note that Hertz followed all the proper procedures to protect themselves from liability, including thorough documentation.  They gave verbal and written warnings and counseled the employees on proper workplace conduct.  They also bargained over the issue with the union.   In addition, there are many other Muslim employees who were not fired because they follow company policy.  Given these facts, one would hope and expect Hertz will prevail if litigation is ever filed against the Company.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

In this case, a female employee was fired while on maternity leave.  She brought claims for pregnancy discrimination under the federal Pregnancy Discrimination Act and the Connecticut Fair Employment Practices Act.  In order to prove her discrimination claim, the plaintiff must first show she 1) is a member of a protected class; 2) was a satisfactory employee; 3) was fired; and 4) was replaced by someone outside her protected class or the circumstances surrounding her discharge give rise to an inference of discrimination.   

The employer in this case moved for Summary Judgment claiming the plaintiff failed to satisfy the first element of the test: that she was pregnant.  The employer argued the law protects pregnant employees, but the plaintiff was not pregnant when she was fired.  The court disagreed finding the laws protect women affected by pregnancy, not women who are pregnant.  Therefore, the plaintiff, having given birth only one month before her discharge, was affected by pregnancy and therefore covered.

The case will now continue to trial.  It will be interesting to see whether the plaintiff ultimately prevails.  For now, employers in New York, Connecticut, and Vermont need to be aware that there is a trend in the Second Circuit towards protecting women on maternity leave against discrimination.  Employers everywhere should always document all instances of employee misconduct especially those leading to discharge.  This is every employer’s best defense to a claim of discrimination.    

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Editor’s Note: This is the fifth in a six-part series examining how employment law is­sues specifically affect law firms. Next week’s article will focus on how keeping proper pa­perwork is crucial to demonstrating legal compliance and minimizing litigation.