You can’t call your attorney every time there’s an HR issue—it’s just too costly—but there are times when you should call because making the wrong move could be much more costly. In today’s Advisor, Attorney Julie Moore helps us to determine when that attorney call is necessary.
Moore’s tips came at BLR’s National Employment Law Update held recently in Las Vegas. Moore is president and founder of Employment Practices Group in North Andover, Massachusetts.
When managers are not sufficiently versed in state and federal employment laws
It is dangerous to act without sound advice when managers making decisions are not familiar with the requirements of laws such as:
- Title VII of the Civil Rights Act of 1964, as amended
- The Age Discrimination in Employment Act
- The Family and Medical Leave Act
- The Equal Pay Act
- The Americans with Disabilities Act
- State laws against discrimination, pregnancy laws, and others
When the employee is in a protected class
If the employee against whom action is being taken is in a protected class, it is unwise to act without a call to your attorney. Make sure you understand protected classes such as:
- Race
- Color
- Religion/religious creed
- Sex
- National origin
- Age (40 and over)
- Physical or mental disabilities
- Pregnancy
- Veteran’s status
- Genetics
- Participation in discrimination complaint-related activities
In addition, become familiar with the protected categories that are covered by state and local laws and ordinances, Moore says. Many states, counties and localities offer protection to individuals of any age and cover sexual orientation, gender identity, marital status, family status, military service, and even height and weight. Be sure to know the laws and keep updated, as the laws change regularly, she adds.
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When the employee has engaged in protected activity
Protected activities are those that are recognized under state and federal law. For example:
- A recently lodged sexual or other form of unlawful harassment complaint
- Filing a worker’s compensation claim
- Being out of work on a family and medical leave
- Recently being on a leave to serve on a jury
- Raising whistleblower concerns
- Taking a maternity or paternity leave
- Asking for a disability accommodation
- Complaining of or filing charges of alleged unlawful activities
Any action against a person in this protected status may be easily painted as discrimination or retaliation because of the timing. Check with your attorney to be sure that your reasons for acting are sound, consistent with past practice, and well documented.
When public policy issues may be present
Public policy implications should also be considered, Moore says. An employer should assess whether the employee is being terminated for engaging in an act that public policy would encourage or if the employee is being terminated for refusing to do an act that public policy would condemn.
For example, an employee who exposes an illegal activity or who refuses to “cook the books” for an employer might fall into this category. An employer should examine whether any public policy issues are in play before making the termination decision, Moore says.
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When an employee is close to vesting or gaining a benefit
Also take care when an employee targeted for termination is close to vesting in a significant employee benefit, or if a termination or layoff would deprive an employee of compensation such as vesting of stock options or earning of commissions.
When the employee refused other jobs or relocated
The employer should know if an employee targeted for layoff forewent other jobs or relocated to the company in reliance upon assurances made during the recruitment process. Legal claims may arise in these situations.
In tomorrow’s Advisor, more of Moore’s tips, and an introduction to an extraordinary turnkey training system that’s available 24/7.
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