Sometimes the workplace can feel like a minefield for employers. In addition to managing the day-to-day operations of the business, planning for the long-term and attending to issues like worker safety and production quality, a business is also charged with understanding and complying with a plethora of state and federal laws and regulations.
Many of those statutes and regulatory policies relate to hiring, management, and termination of employees. Working with an experienced employment attorney who can help you formulate compliance policies, educate your management team, and implement those policies can minimize the risk to your business and the stress on your executives.
Key Areas of Concern Form Employers
The employment law arena is complex and touches virtually every area of the employer/employee relationship. One area in which employers face significant risks centers around complaints and claims employees may raise in connection with their treatment in the workplace, termination, or even the reason that a candidate was not selected.
An experienced employment attorney can guide you through these issues as they relate to your business. Some most common include:
To avoid legal conflicts, an employer must understand the requirements of several different pieces of federal legislation and the dictates of the agencies that enforce them. These include the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.
In addition, some state governments provide greater employee protections or extend them to employees who would not be covered under federal law. This can be particularly complicated for businesses operating in multiple states, facing different laws and regulations in different locations.
Employers may be surprised to learn that indirect consequences may be deemed discriminatory. For example, a test for promotion that disproportionately impacts employees of a protected class may be discriminatory, even though the employer had no discriminatory intent. Working with an experienced employment lawyer to create policies regarding hiring, discipline, termination, promotions, and other aspects of employee management can provide the protection you need.
Workplace harassment can give rise to a variety of claims against an employer, including an Equal Employment Opportunity Commission (EEOC) complaint or a lawsuit based on harassment, discrimination or wrongful termination.
As with discrimination claims, an employer may find itself liable for harassment without direct action. For example, the failure to take action if other employees are creating a hostile work environment for the affected employee can give rise to a harassment suit, though management took no part in the harassment and did not actively condone the behavior.
Strong workplace policies regarding treatment of co-workers, reporting procedures for violations, and clear documentation of complaints and management action helps to protect an employer against such claims and to empower employees to take action before the problem becomes unmanageable.
When a business downsizes, there are two different types of legal considerations. The first involves individual employees, and includes issues such as:
- Choosing employees to terminate or lay off in a manner that does not give rise to wrongful termination claims
- Determining whether to offer severance packages to employees, and if so, which categories of employees
- Negotiating the terms of any severance agreements and drafting agreements
- Managing the actual termination in such a way as to minimize conflict and protect against liability
At the same time, employers must be aware of general obligations unrelated to the individual employees, such as the requirement that a company provide advance notice to employees and others at least 60 days in advance of a mass layoff. Such events also trigger obligations in a variety of areas such as health insurance continuation notices.
While employment in most states is “at will” and an employee can be terminated at any time for nearly any reason, there are exceptions. Wrongful termination claims most often arise when:
- The terminated employee is under contract
- The employer failed to follow its own stated policies in terminating the employee
- The employee claims to have been terminated as the result of membership in a protected class
- The employee claims to have been terminated as the result of legally-protected activity, such as filing a worker’s compensation claim
A wrongful termination claim may be triggered by anything from the way an employee was treated during employment as compared with other employees to the alleged reason for the termination. Thus, great care must be taken at every stage of the employee relationship and termination to insulate the company against such claims.
Whistleblowing statutes are intended to protect workers who report certain violations of the law that jeopardize the public welfare. The extent of these protections, the type of reporting they apply to, and the liability associated with violation of the whistleblower statute vary from state to state, and some states provide more extensive protection than does the federal government.
Terminating or otherwise prejudicing an employee who has made such a report is dangerous ground and should not be undertaken without a thorough understanding of whistleblower protections as they apply in your jurisdiction.
Get Guidance from an Experienced Employment Lawyer
The above discussion raises several important legal issues for employers but provides only a high level look at a sampling of the issues an employer must consider in formulating policies and in interactions with individual employees. An experienced employment attorney can be your best resource for protecting your business.