Employment Law Update

Michael Patrick O’Brien
October 14, 2009 | COMMENTS

What really stinks about HR law? Lots. We got to discuss some of it when I was asked to speak at the recent Utah SHRM Crossroads conference. Here are some highlights.

Much of It Is Out of Your Control

Need an example? Think of the stupid CEO I wrote about a few weeks ago. This is the guy who accidentally sent an e-mail lamming the age of a job applicant who was not hired—to the applicant himself. Now the resulting court case is looking questionable for the employer. That stinks! What can you do about the stink? Take control back. Educate management about HR's value, especially in compliance issues. CEOs are not stupid, they just act that way sometimes. Remind them that HR is a profit center (think of all the lawsuit money you save the business with good HR management), not a loss center. HR needs a seat at the management table. HR and the CEO must have a good, working relationship. Establish it! Finally, because they will happen, fix mistakes quickly when they do happen.

It's Like Going Back to Junior High

Think of the true story of misplaced employee creativity. I'm talking about the employee who is downloading naked pictures of women from the Internet (yes, there is porn on the Internet) and cutting and pasting the pictures of his female co-workers onto the porn pictures. Yes, true story. That stinks! What can you do about the stink? First, try education and training. Employees must know the rules of behavior and that they will be consistently applied. Employees need to know what gets them into trouble and where to go if they are the victims. Supervisors need to know all this plus how to help prevent/deter/manage trouble. Moreover, supervisors must set the example for good behavior!

It Changes All the Time

Here are some examples of new employment laws: ADA amendments; new FMLA regulations; Genetic Information Nondiscrimination Act; minimum wage increases (federal and state); and new Utah laws on guns in parking lots and regarding applicant personal data. Here are just a few examples of some proposed new laws: a national ban on sexual orientation discrimination; enlarge FMLA and start coverage with 25 employees and allow leave for school events and domestic problems; health care reform; mandatory paid sick leave; employee verification issues; union reform and the Employee Free Choice Act; a ban on mandated arbitration; better independent contractor scrutiny; accommodation of employee breastfeeding (women only); and leave for volunteer firefighters. Technology is changing too and today we get to deal with: cell phones and camera phones at work; social networking sites (Facebook, My Space, etc.); Twitter; instant messaging and video resumes. That stinks! What can you do about it? Again, start with education and training. When the rules change you have to change too. Make sure you have a method for finding out when the rules change. Try to influence proposed legislation. Call or write to your member of Congress or the state legislature.  Get active in SHRM's legislative efforts. It is better to light a single candle than to curse the darkness. Finally, think about new technology and apply familiar legal rules to it. Most of the rules stay the same, they just have new high tech apps!

It Was Bad Enough when You Needed a Law Degree to Do HR . . .

Remember the “Bermuda Triangle” of employment law, where ADA , FMLA, and Worker's Comp laws may apply all at the same time? Sometimes they impose inconsistent obligations. Sometimes you feel like you are making medical decisions—“Hello, Dr. HR here . . .” Sometimes it seems you're used/abused in the process. That stinks! What can you do about it? Make sure you have a “leave czar,” someone who knows the laws and coordinates your compliance with them. When in the “Triangle,” take each law on one at a time to ensure compliance with each, then move on to the next law. Supervisors need to know enough about the law to know when to get HR involved.  Train them. You are not the doctor (and you don't even play one on TV). So, don't be the doctor, but use doctor opinions when you can do so. Last but not least, respect employee medical privacy and confidentiality.

Sometimes You Get Investigated or Sued, Even when You Don't Deserve It

Want examples? In the last year fully analyzed (2008 I think), almost 100,000 Equal Employment Opportunity (EEOC) claims were filed, a record year. Age claims were up 29%; retaliation up 23%. Race/sex discrimination claims are still very common. The EEOC recovered almost $400 million in verdicts and settlements. Million dollar verdicts are common in the news. That stinks! Remember that you cannot stop someone from suing you. What you can do is minimize your risk of losing that lawsuit. And you can put yourself in the best position to get rid of a lawsuit as inexpensively as possible. How can you try to do this? Good policies; audit your practices. Document, document, document. Follow your own policies and act consistently in disciplines and terminations. Caution in “red flag” or high-risk situations. Don't fire unless your record supports your reasons. Don't act out of anger; respect employee dignity and do not add insult to injury. If sued, get a litigation or settlement strategy—are you going to fight or try to settle? Either approach has merit, but think it out in advance.

That's the end of this particular update. Everyone back to work—now that really stinks!

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.