Reducing Exposure to Employee Lawsuits

by Neil Weiss

Employee Don’ts
Operators should advise employees of proper work behavior. Here’s a list of a few guidelines employees should follow. Do not engage in:
* Touching or anything else remotely physical.

* Romantic relationships with subordinates – assume that you are not “consenting adults.”

* Use of foul, vulgar, offensive or suggestive language.

* Stereotyping with conversation, like using “dear” or “sweetheart.”

* Improper use of e-mail, voice mail and other office communication systems (e.g., suggestive screensavers, etc.)

* Off-color discussions of others, personal remarks or remarks about a person’s looks, clothing, body-type, body parts, etc.

* Questions about an employee’s social, outside relationships. * Conduct which may be characterized as “losing one’s head” on business trips, social events, gatherings, receptions, continuing professional educational sessions, and so forth.

* Dissemination of lewd or suggestive written or illustrated materials (Web sites, digital photos, etc.)

Operators risk devastating lawsuits if they do not establish and closely follow clear-cut rules for handling employee issues, attorney Robert Rosenthal warned delegates attending the LCT Show seminar, “Understanding How to Be an Employer of Choice.”

Employers must take all sexual harassment complaints seriously and make sure all employees are treated equally and fairly, said Rosenthal, who works for the Las Vegas law firm of Kirshman Harris & Rosenthal. Mary Todd, Human Resources Manager for Bobit Business Media, added that employers that do not accommodate requests for family medical risk exposure to lawsuits.

When to Have Employee Handbooks
Many employers use employee handbooks to establish their company’s policies. Rosenthal noted that while there is no law that says you must have one as an employer, if it works for you, then have one. Once rules are established in an employee handbook, make sure you and your employees follow them.

Company policies must still be properly explained to all employees, but there is more flexibility in the eyes of the law if a handbook hasn’t set the rules in stone.

Handbooks are generally necessary for larger operators due to the complex nature of making sure all employees understand a company’s rules, said Rosenthal. Handbooks also must be updated every year as laws change.

Addressing Sexual Harassment
From 1990 to 1998, sexual harassment complaints rose 150%, costing corporations $6.7 million annually for lawsuits. But as serious as a sexual harassment lawsuit can be for a company, the boundaries often seem unclear, said Rosenthal.

Sexual harassment is illegal. Unwelcome advances, requests for sexual factors and other verbal or physical conduct of a sexual nature constitute harassment when:

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;

2. Submission to or rejecting of such conduct by an individual is used as the basis for employment decisions affecting the employee; or

3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

A sexual harassment suit can also come from a third party that witnesses the behavior and feels uncomfortable or victimized when the person involved seems powerless to respond.

Employees must be given clear direction on how to file a complaint and who they will file it with. Rosenthal recommended that a woman investigate complaints, and that the parties involved be moved to separate parts of the office if possible, until the issue is resolved.

Fast response is also an important factor. Take statements immediately, listen to the person filing the complaint, and follow through with all procedures, said Rosenthal. Employers that don’t act quickly and decisively often become liable. This is often an issue when a complaint is filed against someone widely considered a valued employee.

Operators should note the following additional tips:

* The issue of sexual harassment can come up if someone doesn’t get the raise he or she was expecting or is reprimanded.

* Keep alcohol out of the workplace. Office parties should be held at an outside location, although this doesn’t completely free an employer from liability.

* Talk to an attorney and make sure you have an appropriate amount of evidence before firing someone.

* Be proactive. It’s often too late once the incident happens. The impact on a company’s finances and employee morale can be significant.

Treat Employees Equally
In striving to treat employees equally, tread carefully if two employees break the same rule and you’re planning on treating them differently. This can come into play even if one is a veteran employee and the other is a recent hire. All employees must be held equally accountable for following the same rules, particularly when they are established in an employee handbook.

Family Medical or Military Leave
Employers can face a lawsuit if they don’t grant family medical or military leave requests, said Todd, who recommended erring on the side of the employee’s request.

While it is perfectly reasonable to investigate a claim and ask for medical certification, it is important that an employer not harass the employee who put in the request for medical leave.

Employees must have the ability to return to the company and get their old job back, or an equivalent one. If the employer cannot afford to keep the replacement and the employee who is returning to work, the replacement must be let go.

Keep in Mind When Hiring
The law prohibits employers and employment agencies from asking certain questions in an application or in a personal interview when hiring for a position. It’s also illegal to discriminate a candidate because of age, race, creed, color or any other legally protected category. Also any intent to make such limitation, specification or discrimination, unless based upon a bona fide occupational qualification is also illegal.

Employers are not recommended to ask potential job candidates about how old they are, their date of birth and the ages of their children, if they have any. Rather than asking if candidates have been arrested, ask if they have ever been convicted of a criminal offense, and the details of that offense. Don’t ask applicants if they have a disability or if they have been treated for any of the following diseases; or if they have now or ever have had a drug or alcohol problem.

Employers may inquire only whether a prospective employee can perform specific tasks in a reasonable manner. However, an employer cannot disqualify an applicant or employee because of suspected future risk to his or her health while performing a specific job.

Also, companies must keep in mind that applicants cannot be denied employment because of a conviction record unless there is a direct relationship between the offense and the job or unless hiring that person would be an unreasonable risk. And if an ex-offender is denied employment, he or she is entitled the reasons for the denial.

Choice employers are “Equal Employment Opportunity” companies. Place such a statement on your company’s Web site, on applications, job postings sent out to recruiting services and internal job postings.

The statement can be as simple as: “XYZ Limousine Service provides equal employment opportunities to all employees and applicants for employment without regard to race, color, religion, sex, sexual orientation, national origin, marital status, age, disability, status as a Vietnam-ear or special disabled veteran or any other class protected by law in accordance with applicable federal laws. In addition, XYZ complies with applicable state and local laws governing nondiscrimination in employment in every location in which XYZ has facilities. This policy applies to all terms and conditions of employment, including but not limited to, hiring, placement, promotion, termination, layoff, recall, transfer, leaves of absence, compensation and training.”

Operators interested in research personnel topics can go to www.dol/gov/compliance for more information.

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