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EMPLOYMENT FREQUENTLY ASKED QUESTIONS
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What are some common employer mistakes that lead
to EPL claims?
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Lack of employee handbook/harassment policy
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Insufficient applicant evaluation
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Inadequate or erroneous documentation of personnel decisions
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Incomplete or inaccurate employment evaluations
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Not having appropriate procedures in place to investigate complaints
- Failure to follow severance procedures for:
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Negotiating releases and waivers of claims
- Providing COBRA and other required benefits information
Should I maintain and distribute an employee handbook
for my employees?
Yes. The Employee Handbook is an employee's primary source of information about
the Company's policies and procedures. As one of management's primary means of communicating
with employees, a Handbook can foster positive employee relations and minimize litigation.
An Employee Handbook is a good place to reiterate your employee's "at-will" status
regarding their employment relationship. A sample "at-will" policy should be part
of the introductory and closing remarks. You will find a checklist of suggested
topics for inclusion in an Employee Handbook in the Model Policies and Procedures
section of this site.
Should a small employer develop job descriptions
for its employees?
Yes. The contents of job descriptions have significant protective legal ramifications.
Job descriptions clearly delineate basic (or "essential") functions of each position.
This is necessary to comply with the Americans with Disabilities Act and state laws
which require an employer to try to accommodate a disabled worker so that he or
she can perform essential job duties. Inability to perform non-essential functions
cannot be a basis for an adverse act against the disabled individual, who is otherwise
qualified to perform the essential functions of the job.
Should written performance appraisals be prepared?
Yes. Accurate appraisals help a Company to identify employees with the potential
to assume new job duties. In addition, employee appraisals often are the only regular
feedback employees receive concerning their job performance. Accurate employee appraisals
also can be powerful tools in fighting claims that employees were wrongfully discharged,
or were denied fair treatment in violation of the equal employment opportunity laws.
Adverse employment decisions such as termination or failure to promote may seem
discriminatory without adequate documentation of performance deficiencies and warnings.
Do employees have a statutory right to review or
copy their personnel file?
Federal law does not mandate employee access to their personnel files. You must
check your state's law because many states mandate employee access to their personnel
files. Other states, however, do not require an employer to allow an employee to
review or copy his or her personnel file (although nothing prevents an employer
from permitting them to do so). Any policy permitting file access should be enforced
on a uniform basis, so that employees will not allege they have been treated disparately.
In addition, employees who are members of a union may have a right to review or
copy their personnel file if such a provision is in the collective bargaining agreement.
May an employer refuse to employ an individual with
a disability in a job which could endanger the employee's own health or safety?
Yes, but only if there is medical confirmation of undue danger that cannot be avoided
by reasonable accommodation. The Americans with Disabilities Act and state or local
laws prohibits discrimination on the basis of a handicap or disability. These laws
do not permit employers to restrict a disabled worker's access to a job for his
or her "own good" or to avoid possible exposure to workers' compensation claims.
There are limited exceptions; talk to an attorney.
Must an employer provide an employee with more than
12 weeks of FMLA leave in a one year period if it failed to designate the employee's
time off as FMLA leave or failed to give notice to the employee of his or her FMLA
rights and obligations?
As a general rule, an employer must provide up to 12 weeks of leave to an employee
granted a leave under the Family and Medical Leave Act. The FMLA applies to employers
of 50 or more employees and grants leave rights to certain eligible workers. However,
state laws vary on the number of employees. An employee is "eligible" under federal
law if he or she has at least one year of service since his or her initial hire
date and has worked at least 1250 hours in the past 12 months. There are other rules
as well regarding "key employees" (who may lack job reinstatement rights) and the
"small site" exception; i.e., an eligible worker be employed at a site where 50
or more employees are working (or work within 75 miles of such a site). If an employee
is "eligible," a leave may be available if needed to care for the worker's mother,
father, spouse, or children due to their "serious health condition." Similarly,
a worker can obtain a FMLA leave due to his or her own serious medical condition
or due to the birth, adoption, or placement of a child for adoption.
Does federal law prohibit discrimination because
of sexual orientation or preference? If not, do state or local laws prohibit that
discrimination?
Federal law lacks a prohibition against discrimination on the basis of sexual orientation
or preference. The lack of a federal law addressing sexual orientation discrimination
has led to state and local laws addressing this issue. Contact your attorney or
state anti-discrimination agency to determine what laws regulate your business.
If an employer discharges or refuses to reinstate
an employee after providing 12 weeks of FMLA leave, can the employer be held liable
for retaliation against the employee for taking such leave?
Yes. Just because an employer has granted an employee 12 weeks of leave under the
FMLA, does not mean the employer's risk of liability has been eliminated. Reinstatement
also is required in the employee's former position or a comparable job. In addition,
there can be no other penalties. An employee who claims that as a result of taking
protected FMLA leave, he or she has been subjected to an adverse employment action,
such as a demotion or decrease in salary, can sue under the FMLA anti-retaliation
prohibition.
May an employer be held liable for sexual harassment
even if the harasser lacked the ability to hire or fire the harassed employee?
Yes. According to the Supreme Court, an employer is liable for a hostile work environment
created by a "supervisor." An individual is deemed to be a supervisor for purposes
of liability if that individual has authority to direct another employee's work
assignments. An individual's ability to hire or fire another employee is not relevant
in determining their role as a supervisor for the purposes of liability.
An employee's father-in-law is in the hospital
due to a heart attack, and his wife is unable to care for him. Is he entitled to
take leave under the family and medical leave act?
No. The Family and Medical Leave Act requires employers to provide leave to enable
an employee to care for a parent with a serious health condition, but not a mother-in-law
or father-in-law.
An employee has requested a 12-week FMLA leave
because the birth of his child. The child was born eight months ago. Is he still
entitled to take leave now?
Yes. While most employees who take FMLA leave for the birth of a child take the
leave immediately following the birth of the child, the FMLA requires employees
to grant FMLA leave as long as the leave is taken during the first 12 months following
the birth.
An employee requested 12 weeks of leave under the
Family and Medical Leave Act to stay at home with his mother who is suffering from
cancer. He wants to provide comfort and support to her; however, he is not needed
to provide medical care or assistance since his mother has a live-in nurse. Must
a leave be granted?
Yes. Under the FMLA, an employee is eligible for up to 12 weeks of unpaid leave
when "needed to care for" a parent with a serious health condition. The regulations
implementing the FMLA define the phrase "needed to care for" to include providing
psychological comfort and reassurance, not just medical care.
May an employer rely on a customer's or co-worker's
preference for working with people of certain religions and nationalities in making
employment decisions?
No. Customer or co-worker perceptions about an individual's race, color, ethnicity,
or other legally protected characteristic cannot be the basis for an employment
decision. Employment decisions that are based on the discriminatory preferences
of customers or co-workers are as unlawful as decisions based on an employer's own
discriminatory preferences.
May an employer base an employment action on an
individual's foreign accent or limited English proficiency?
While an employment decision cannot be based upon the worker's ethnic or national
origin, an employer may evaluate whether an individual's accent materially interferes
with the ability to perform job duties. This assessment depends upon the specific
duties of the position in question and the extent to which the individual's accent
affects his or her ability to perform job duties. Similarly, an English fluency
requirement can be imposed to the extent that such proficiency is required for the
position.
Susan, a clerical worker, wears a hijab (head scarf)
in conformance with her muslim beliefs. Can the employer require Susan to remove
the hijab because her head covering violates its dress code and presents the "wrong
image?"
No. Title VII of the Civil Rights Act of 1964 and state or local anti-discrimination
laws prohibit religious discrimination and require reasonable accommodation of a
worker's religious beliefs or practices. An exception exists when a possible accommodation
would impose an undue hardship. In this instance, the employer violates Title VII
if it makes a worker remove a hijab or changes her duties to remove this worker
from public view. Notions about customer preference, whether real or perceived,
do not establish undue hardship. As such, the employer should make an exception
to its dress code to let Susan wear her hijab during front desk duty as a religious
accommodation.
Can employers adopt policies that require employees
to speak only English in the workplace?
Under limited circumstances, an English-only rule may be imposed if it is needed
to promote the safe and efficient operation of the employer's business. Some situations
in which business necessity would justify an English-only rule include: communications
with customers, co-workers, or supervisors who only speak English; emergency situations
in which workers must speak a common language to promote safety; and, cooperative
work assignments in which a common language is needed to promote efficiency. An
employer's use of an English-only rule should relate to specific circumstances in
the workplace and should not apply to off-duty time (such as meal breaks) or interactions
in non-work areas (such as break rooms).
Is an employer required to address joking or teasing
or workplace behavior that refers to potentially discriminatory subjects, like race
or sex?
Yes. Managers and supervisors who learn about objectionable workplace conduct based
on sex, race, religion, national origin or any other protected characteristic are
responsible for taking steps to correct the conduct by anyone under their control.
Workplace harassment and its costs are often preventable. Clear and effective policies
prohibiting sexual, racial, ethnic and religious slurs, and related offensive conduct,
are needed. Confidential complaint mechanisms for promptly reporting harassment
are critical, and these policies should be written to encourage victims and witnesses
to come forward. When harassment is reported, the focus should be on action to end
the harassment and correct its effects on the complaining employee.
If someone quits, can he or she still make a claim
of harassment or discrimination?
Yes. An employee can resign and contend that the resignation was involuntary and
the result of an overly hostile environment. This is referred to as a constructive
discharge.
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