Category Archives: Employment Practices Liability

Workplace Violence: How to Maintain a Safe Work Environment

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many laws that protect employment interests. Reportedly, every year, approximately 2 million Americans fall victim to workplace violence. According to OSHA and the Bureau of Labor Statistics Census of Fatal Occupational Injuries, homicide is the fourth highest cause of workplace fatalities in the United States. The scope of what and how workplace violence may occur is broad. It can involve conduct between employees, employees and customers, and employees and non-employees (e.g. a spouse). Given the serious nature and risk associated with workplace violence incidents, it is imperative that employers take steps to prevent such acts from occurring.

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Heavy Scrutiny of Employment Agreements

Agreements within employment contracts and employee handbooks continue to be subject to strict scrutiny by the NLRB. In a recent decision, the Sixth Circuit enforced an NLRB Order finding multiple NLRA violations for prohibiting employees from engaging in “collective bargaining.” The issue should be of interest to all employers given the common misconception that the NLRA only applies to unionized employers.

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Isolated Racial Slur Triggers Hostile Work Environment Claim

One strike, you’re out? The isolated use of a racial slur may be enough to establish a hostile work environment claim. While the Second Circuit did not squarely answer the question in the affirmative, in Daniel v. T & M Prot. Res., LLC, the court allowed the claim to proceed. To establish a hostile work environment claim, a plaintiff must show: that the workplace was permeated with discriminatory intimidation that was sufficiently severe to alter the conditions of the work environment and that a specific basis exists for imputing the conduct that created the hostile environment to the employer. So what does severe or pervasive mean in this context? Can an isolated incident rise to the level of pervasive?

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Hiring Decisions and the NFL Draft

You can learn a lot about reputational harm and hiring decisions from the NFL. A college football player potentially lost millions recently as his draft stock tumbled in the wake of a rape investigation weeks before the NFL Draft. Granted, the player was selected in the first round, but at a lower pick than originally projected. Reportedly, numerous teams called the player within 48-hours of the disclosure of the investigation to hear his version of events. Some teams reportedly administered a polygraph test to the player. But what's enough? What steps must an employer take to investigate potential employees? A related question: what's the potential reputational cost to the employer? These are critical employment decisions.

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Reasonable Accommodation Tested by Principal

Is it reasonable for an Assistant Principal to return to her job if she has medical restrictions that prohibit her from interacting with potentially unruly students? The 7th Circuit examined this situation in Brown v. Milwaukee Bd. of Sch. Directors, which addresses “reasonable accommodations” under the ADA. Of course, the ADA requires employers to make “reasonable accommodations” that will allow a qualified individual with a disability to perform the essential functions of her job. So what is a reasonable accommodation? It depends on the company, the essential functions of the job, and the medical restrictions of the applicant or employee.

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When There’s Smoke, There’s Fire: Allegations of Harassment Can Point to Liability

The recent departures of high-profile executives and the flurry of harassment lawsuits provide plenty of teaching moments for employers. Notably, these very public exits and lawsuits are a prime example of why employers must act decisively when complaints of harassment arise in the workplace. Unfortunately, this situation is all too familiar for some employers. Some employers may be tempted to overlook the conduct of top performers even though it may open the door to liability. However, it is critical that allegations of harassment be taken seriously and that prompt investigations are conducted by employers. Sometimes it's necessary to bring in third-parties to conduct a thorough investigation particularly if higher level executives are involved or if there is a pattern of troubling allegations.

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Employer Guidance on Mental Health Disorders

According to the National Alliance for Mental Illness, one in five US adults experiences mental illness in a given year. In a recent article authored by PL Matters contributor Dove A.E. Burns, the “prevalence of these disorders has a significant impact upon the workplace and upon employers and their accommodation policies and procedures.” The New York Law Journal article evaluates the EEOC’s publication titled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights.” The article also considers what the EEOC's guidance means for employers navigating the ADA landscape.

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Tax Consequences of Employee Wellness Programs

Employee wellness programs are all the rage. While the concept is still relatively new, the potential implications of such programs are still being ironed out. Consider for example our recent post about how such plans can comply with other existing federal regulations. As employers struggle to make sure that their programs comply with existing regulations, another aspect of the employer wellness programs cannot be forgotten: taxes. The potential tax implications for both the employer and employee are an important aspect of any wellness program. In a recent Chief Counsel Advice (CCA) the IRS addressed what constitutes taxable income when benefits are provided to employees through a wellness program. Employers and tax-preparers should take note.

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Final Word on Employer Wellness Plans

Employee wellness plans are a hot item these days. Increasingly, wellness plans are seen as a benefit to both employees and employers alike. As many employers jump on the bandwagon of this growing health trend, they should be aware of the other legal implications of creating and implementing these programs within their company. For example, a popular topic ever since the EEOC issued its proposed regulations last year has been how employee wellness programs can comply with existing regulations such as the ADA and Title II of the Genetic Information Nondiscrimination Act (GINA). Well now it’s time for employers to take note because the EEOC has just finalized its rules in this regard.

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Facebook + FMLA Leave = Termination

Had a great vacation? Post it on Facebook. Fun surfing? Post that too. Swam some laps while on FMLA leave due to a shoulder injury? You should probably keep that one to yourself. Employers continue to struggle with balancing their own marketing interests with the interests of employees in maintaining a social media presence. Of course, an employee’s use of social media may not always comport with an employer’s interests as identified in its social medial protocols or otherwise conflict with accepted practices. Take for example the recent decision from the Middle District of Florida.

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