The perils of firing an older, long-tenured worker

by Jonathan C. Sterling

Q We have an employee over age 65 who has been a manager for over 40 years and has excellent evaluations in his file. Recently we have learned that his department is possibly committing fraud in their documentation of paperwork.FiredOlderWorker He doesn’t abide by company policy, doesn’t meet deadlines, and has been written up one time for sexual harassment. Can we terminate him without fearing a wrongful termination lawsuit?

A The fact is, there is often nothing you can do to avoid a wrongful termination claim. The real question is whether the termination is defensible in a legal proceeding. It sounds like you have legitimate nondiscriminatory reasons that justify the employee’s termination. Make sure you have meaningfully investigated each of his transgressions and the results are well documented. It is equally important that you treat the employee the same way you treat other workers who engage in similar misconduct. If other employees in the department engaged in the same conduct, they should be subject to the same punishment. If you have done those things, you should have a solid defense to a lawsuit.

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Alcohol abuser creates dilemma for employer

by Caren W. Stanley

Q We have an employee in a high-risk, safety-sensitive position who recently admitted to extreme alcohol abuse. We are now concerned that he, his colleagues, and our company are at risk because we can’t depend on his work. We’d like to discharge him, but we’re unsure of the legal risks.  DrinkingAtWork

A Unfortunately, this is a common dilemma faced by many employers. The initial question you must ask yourself is whether you are required to provide the employee leave for treatment. Recall that the Americans with Disabilities Act (ADA) prohibits employment discrimination against “qualified individuals with disabilities.” An individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

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Wiccan what? Religious accommodations and sincerely held beliefs

by Steve Jones

Q If an employee asks for time off for her religious beliefs, can I legally question her about her religion (e.g., what her religion is and why she needs off)?  Wiccan

A Most likely, yes. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion. The Act requires employers with 15 or more employees to make reasonable accommodations for a worker’s sincerely held religious beliefs unless doing so would impose an undue hardship on business operations. Under Title VII, the “undue hardship” defense requires an employer to show that under the particular circumstances, the proposed accommodation poses more than a minimal cost to or burden on the employer.

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Are generic antigay comments considered harassment?

by Steve Jones

Q I have an employee who is outwardly gay. He is a great employee and says he loves working at my business. However, he recently mentioned that he doesn’t like when a specific coworker uses antigay slurs. The slurs are not directed toward the gay employee. Instead, the slurs are generic comments such as “That’s so gay.” Are the comments a form of harassment under the law? 

A It depends. Sexual orientation―specifically, lesbian, gay, bisexual, and transgender (LGBT) status―is not a federally protected category. Therefore, we must look to state law for guidance. Currently, 21 states and the District of Columbia have laws that prohibit sexual orientation discrimination in employment. Twenty-nine states do not prohibit sexual orientation discrimination.

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Lessons from an office ‘kick me’ prank

by Robert P. Tinnin, Jr.

Q I recently read a newspaper article concerning a lawsuit filed in federal court in Albuquerque by an Intel employee who is suing his employer for race-based harassment and intentional infliction of emotional distress. Coworkers secretly taped a “kick me” sign to his back and then kicked him as others laughed hysterically. What are we coming to? Can employees sue their employer for anything these days?

A The lawsuit has garnered quite a bit of attention in both the local and national press. The primary allegation involves a grade-school prank that many of us participated in as children. Indeed, at the very least, it was a juvenile prank. Few of us would think it would be the basis for a lawsuit in federal court, but it is. read more…

What’s on the immigration horizon for employers?

by Elaine Young

During the month of May, the Senate Judiciary Committee marked up the comprehensive immigration reform bill that the “Gang of Eight” proposed earlier in the year. In June, we saw the House of Representatives debate over what to add or take away from the bill. Here’s a quick Q&A on how some of the most likely provisions will affect employers. Just a note―the bill is more than 800 pages long, so this is a general summary.

Drilling down to the basics

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Atten-hut! Know your USERRA obligations

by Steve Jones

Q What are my obligations to employees who are in the military, are called to serve, and then seek to return to their civilian jobs? What if an employee will be deployed for more than a year?

A The Uniformed Services Employment and Reemployment Rights Act (USERRA) governs the employment of military servicemembers. USERRA, which is a federal law and therefore applies in all states, is intended to ensure that people who serve or have served in the armed forces, reserves, National Guard, or other uniformed services (1) are not disadvantaged in their civilian careers because of their service, (2) are promptly reemployed in their civilian jobs upon their return from military duty, and (3) are not discriminated against in employment based on past, present, or future military service. You must be aware of your obligations under USERRA before you hire military servicemembers, during their employment, and while they are away from their jobs because of service-related duties.

Application of the law

First, you may not deny someone initial employment because of past, present, or future military service. You can defend your company against a USERRA claim by presenting evidence that you would have taken the same action if the job applicant didn’t have military service obligations. Detailed documentation, including comprehensive interview notes and in-depth explanations of your reasons for not hiring prospective employees, will help your defense. read more…

Say what? Asking employees to take language classes

by Brad Cave

Q: Will I be in violation of federal discrimination laws if I provide an “English as a second language” (ESL) employee English language training at the company’s expense?

A Any possible discrimination charge under Title VII of the Civil Rights Act of 1964 would be based on national origin. The Equal Employment Opportunity Commission (EEOC) has promulgated express guidelines for employers with employees who don’t speak English as their primary language. The agency has recognized that employers sometimes have legitimate business reasons for basing employment decisions on linguistic characteristics, but because those characteristics are closely associated with national origin, you must be careful to ensure that the business reasons you rely on justify any burdens placed on employees because of their national origin.

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Thou Shalt Not Unreasonably Question Employees’ Religious Beliefs

May 20, 2012 - by: Diversity Insight 0 COMMENTS

By Mark G. Jeffries

Q: If an employee asks for time off based on her religious beliefs, can I legally question her about her religion (e.g., what her religion is and why she needs time off)?

A: Yes, you may question an employee about her religious beliefs if you have an objective basis for questioning either the religious nature or the sincerity of the belief or practice. Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for employees’ sincerely held religious beliefs unless the accommodation would cause an undue hardship on business operations. read more…

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A New Genre of Discrimination? Smokers Need Not Apply

February 19, 2012 - by: Diversity Insight 6 COMMENTS

By Susan Hartmus Hiser

Q: Our company is considering implementing a policy that would make individuals who smoke ineligible for employment. In doing so, we would save a substantial amount of money on our insurance premiums. Can we do this? If so, how do we monitor employees who claim they have quit smoking?

A: Many industries are implementing or considering “no-smokers” policies. Basically, the premise is that insurance companies are lowering their premiums for companies that have policies prohibiting employees from smoking. However, these are not your typical “no-smoking- in-the-workplace” policies. These policies prohibit employees from smoking ― period, regardless of whether they’re on the job. In addition to lowering health insurance premiums, many employers argue that hiring smokers increases production costs because of smoke breaks and high absenteeism from smoking-related illnesses. read more…

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