August 14th, 2019
Robin Shea at Constangy
Take care of yourself!
In medicine, sometimes the practices that get people in trouble are pretty simple. Too many nachos, and not enough leafy greens. You'd rather binge-watch Seasons 1-3 of Stranger Thingsthan go for a walk. You hate needles, so you haven't been to the doctor in 20 years.
The same principle often applies in the employment law world. Sure, an employer can get tied up in knots over some arcane point of the Dodd Frank Wall Street Reform and Consumer Protection Act, but it is much more likely to be sued as a result of some pretty simple "hygiene" practices.
Or, I should say, the lack thereof.
In the next two blog posts (Part Two coming next Friday), I'd like to talk about the simple things that get employers in legal trouble. In no particular order, here are my first five:
No. 1: Not treating your "similarly situated" employees equally. For the most part, the anti-discrimination laws require you to be consistent with raises, disciplinary action, application of your policies, and all other "terms and conditions" of employment. For example, when you are ready to discipline an employee, look at the way you've treated other employees who committed the same or similar offenses. Treat your current bad apple the same way.
If you think you were too lenient in the past, it's ok to move in a tougher direction, but the best way to do that is to let employees know about the stricter rule in advance and not to apply it retroactively.
Favoritism or nepotism are not illegal in themselves, but if you play favorites you are that much more likely to be accused of unlawful discrimination.
No. 2: Treating your "similarly situated" employees the same. What? Didn't you just tell us to be consistent? Yes, I did, but there are a few laws that require you to treat employees inconsistently. If an employee has a disability, a pregnancy-related condition, or a religious need, you can't refuse accommodation on the ground that "we've never done that for anybody," or "if I did that for you, I'd have to do it for everybody." Consistency is usually a good thing, but if an employee needs a reasonable accommodation, you are required by law to at least consider treating that employee differently from the way you treat your other employees.
No. 3: Not periodically monitoring your compensation for equity. As my regular readers know, I'm a "gender pay gap" skeptic. I don't deny that the gap exists, but I don't think it's usually a result of sex discrimination. THAT HAVING BEEN SAID, you can be sued for pay discrimination even if you don't discriminate. The best way to avoid any issue is to conduct periodic equal pay audits. When you do, you'll invariably find at least one or two people whose pay just doesn't seem right -- for whatever reason. (Sometimes the underpaid person is even a man!) When you find a pay disparity for which there is no good explanation, you can quietly make a correction, and everyone will live happily ever after. It may not be so easy to do that if you wait until after you're embroiled in an OFCCP audit or named in a discrimination charge or lawsuit.
P.S. Even though the gender pay gap gets all the attention, it's also illegal to pay employees unequally based on race, national origin, or other protected characteristic.
No. 4: Failing to prevent harassment in the workplace, or to act promptly when a harassment complaint is received. Duh, right? Well, then, why do so many employers still fail to do it?
Every employer should have a no-harassment policy, and it should be in plain language that employees can understand. (If you have a multi-lingual workforce, then it should also be in the languages that your employees speak and read.) Harassment training should be conducted on a regular basis, ideally about once a year. And the current "best practice" is to train not only leadership, managers and supervisors, but also non-management employees. If your policy is to let your Board of Directors handle complaints of harassment made against your CEO or other people at the top, then be sure your Board members get training, too.
Once a complaint is made, keep an open mind even if you think you know what really happened. If you don't feel that you can conduct an objective investigation, consider bringing in a Human Resources consultant or outside attorney who can view the allegations with a fresh eye.
And once you determine to the best of your ability what really happened, make sure that the penalties, if any, are appropriate in light of what you found. That means no "slaps on the wrist" (unless the behavior really was trivial) but also no overreactions.
No. 5: Mishandling medical leaves. It's not uncommon for employers to be hit with the dreaded "triple whammy": (1) an employee with a disability (Americans with Disabilities Act), (2) resulting from an on-the-job injury (workers' compensation), (3) who needs a leave of absence (Family and Medical Leave Act). If you don't have a solid understanding of all of these laws and their interactions, then you will mess up, so consult with someone who is familiar with all three before you act.
Finally, a word about retaliation. It would be unlawful for the employer to take adverse action against an employee for asserting rights under any of these laws we've discussed: complaining about workplace discrimination; asking for reasonable accommodation or complaining that one wasn't granted; complaining about discriminatory pay; making a complaint of harassment; or requesting FMLA leave, filing a workers' compensation claim, or claiming unfair treatment based on an ADA-protected disability.
Please join me next week for the exciting conclusion!
This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).