Taylor Swift’s in legal trouble, trouble, trouble when accusation leads to DJ’s firing

September 21, 2015 - by: Marilyn Moran 3 COMMENTS
Marilyn Moran

Taylor Swift’s complaint that a DJ grabbed her derriere while a photograph was being taken before a concert has led to a federal lawsuit. The DJ claims he got a bum wrap (pun intended) and that it was actually someone else at the radio station who groped the singer. Now the DJ’s got bad blood with Swift, as well as her parents and management team who complained to his employer, and he’s suing them for tortious interference with his former $150,000 per year employment contractDon't Touch My Butt!

Taylor’s legal woes serve as a good reminder to employers that are considering making disparaging comments about a former employee or providing a negative job reference. Before you speak your mind, you should know that most states permit a claim for defamation or tortious interference (depending on the particular factual circumstances of the case) whenever someone makes disparaging remarks that adversely affect another’s employment relationship. Fortunately, however, many states have statutes that immunize employers from suit for giving negative employment references unless the employee can prove by clear and convincing evidence that the remarks were actually false.

Still, even though statutory immunity may eventually allow your company to escape liability, it’s generally not worth the risk to provide a negative employment reference. I don’t know about you, but unless you feel like defending 22 future lawsuits, I would recommend adopting a neutral employment reference policy that limits the information provided to prospective employers to the former employee’s dates of employment, positions held, and rate of compensation at the time of separation.

Sure, sometimes you would love to take a page from Taylor’s song book and dish the dirt on someone who’s done you wrong, but the wiser course of action is to take that bad memory and just shake it off. After all, a former employee’s never, ever, ever getting back together with your company anyway so why you gotta be so mean?

All you need is employment law

August 04, 2014 - by: Andy Tanick 1 COMMENTS
Andy Tanick

Our blog seems to have focused quite a bit recently on stories from the world of sports, and given the number of professional athletes behaving badly lately, that comes as no surprise. So for this week, we’ll take a break from litigious punters, abusive running backs, and egotistical power forwards to focus on another area of entertainment. Our diversion is well-timed, because I was fortunate enough to attend Paul McCartney’s concert last weekend at Target Field in Minneapolis, where the hapless Minnesota Twins are usually the athletes playing badly, if not behaving badly.  Beatles

What do Paul McCartney and the Beatles have to do with employment law? Well, plenty as it turns out. In fact, with a little creativity, we can conjure up an employment-law subtext to many of the top hits by Sir Paul and his bandmates.

Let’s start with some obvious ones. What HR manager hasn’t had the nightmare of dealing with a lecherous employee who is fond of telling his coworkers, “I Want To Hold Your Hand”? On those seemingly rare occasions when such advances are welcome, the resulting workplace relationship almost always ends badly, and on those more frequent occasions when the proposition is declined, a sexual harassment complaint may not be far behind.

Many popular Beatles’ songs take on a whole new meaning when we view them through the prism of the reasonable accommodation provisions of the Americans with Disabilities Act. According to the Equal Employment Opportunity Commission (EEOC), it seems that an employer should begin engaging in the interactive process any time an employee says, “Help! I need somebody!” That’s when a top-notch HR manager will tell the employee, “We Can Work It Out,” if it can be done reasonably, without undue hardship. And once that employee has been accommodated and can resume happy and productive employment, he or she is sure to respond to any inquiries about work by saying, “I Get By With A Little Help From My Friends.” Or if the employee is Joe Cocker, something unintelligible that sounds sort of like that. (Too obscure a reference? Prove me wrong, readers!)

Of course, physical disabilities are not the only ones that employers are required to accommodate. So if one of your employees announces one day, “I Am The Walrus,” or even “I am the egg man,” for that matter, a whole different type of accommodation may be required. Unless of course, the employee does not suffer from a disability at all, but simply reported to work while Hi Hi Hi. (Yeah, I know, that’s the Wings not the Beatles; it’s called artistic license, and it’s a method well known to any Paperback Writer.) If that’s the case, you may need to look at your state’s drug and alcohol testing laws, rather than considering an accommodation.

While we’re on the subject of different protected classes, with today’s aging workforce, many senior employees may be asking their employer, “Will you still need me? Will you still feed me? When I’m 64.” An employer who gives the wrong answer to that question may find itself on The Long And Winding Road of an age discrimination lawsuit.

Switching to a different area of employment law, we’ve all seen a lot more wage and hour claims over the past few years. Having said that, however, I have yet to see an overtime claim arising from an employee being forced to work Eight Days A Week. Of course, we know that claim is false. Why? Because that employee may have been working a lot lately, but our time records show that she didn’t work Yesterday.

When viewed through the eyes of an HR manager, an employee’s plea to stay here and not go to work Back In The USSR turns into a somewhat outdated request for help with an H1-B visa. And in the event of a workplace injury, you’d better hope that the shop foreperson’s motto was not “Live And Let Die.”

Sometimes, despite the superhuman efforts of the HR Department and the company’s employment counsel, the employee may still have a valid claim. No employer is perfect. But even in that unlikely scenario, all is not lost; while money Can’t Buy Me Love, it can usually buy a reasonable settlement.

What HR pros can learn from Casey Kasem

June 23, 2014 - by: Andy Tanick 1 COMMENTS
Andy Tanick

If you were a teenager in ’70s or ’80s who loved pop music, you undoubtedly recall huddling next to your AM transistor radio, maybe with your cassette recorder on standby so you could hit “record” at the just the right time, listening to “American Top 40” with its mellifluous host Casey Kasem. Each week, Casey would count down and play the current top 40 songs, as determined by Billboard magazine, over the course of his three-hour syndicated radio broadcast. In addition to the songs, Casey would sprinkle in trivia about the recording artists, dig back into the “AT40 Archives” for a few “golden oldies,” and bring a tear to our eyes with the “long-distance dedication” of a special song from a star-crossed lover to his or her far-away soul mate.
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Those of us who grew up with Casey were saddened this week upon the news that he had passed away at age 82. Although many of the recent headlines followed his family’s unseemly bickering over his care in his final days, most observers were able to ignore that side-show and remember the legacy of the man who not only popularized the idea of the “top [fill in the number]” countdown list, but also provided the voice of Shaggy in 40 years’ worth of Scooby-Doo cartoons.

What better way, then, for an HR blog to honor the memory of Casey–to give him our own “long-distance dedication,” if you will–than to publish our list of the top ways to maintain a work environment free of employment lawsuits? Here, then, in tribute to the great Kemal Amin “Casey” Kasem (1932-2014), is our countdown of the Top 5 ways for an employer to avoid being sued by its employees.

5.  Properly train your managers. No matter how smart you are, all those seminars you attended, webinars you sort of paid attention to, and articles you read, or at least glanced at, will do your company no good when one of your managers fires an employee with a disability because she’s not quite ready to return to work after her 12-week Family and Medical Leave Act (FMLA)  leave runs out.   Or worse. The time you or your employment lawyer spend training your managers now will be time you don’t spend later sitting in on their depositions, after the company gets sued.

4.  Update those policies. Is your company using an employee handbook that was last reviewed by your employment lawyer in 2006, or worse yet, that isn’t customized for the specific states in which you have employees? That’s not good. If you work in HR, you know that employment law is constantly changing, and you also know that much of it is state-specific. Your 2011 handbook’s social media policy might violate the most recent pronouncements by the National Labor Relations Board, and your one-size-fits-all handbook probably doesn’t address that one quirky statute in that one quirky state where you just opened a (quirky) new facility. It’s time for your employment counsel to review and revise that handbook.

3.  Reasonably accommodate, and engage in the interactive process. Got an employee who suffers from a disability and needs help in order to do his job? Got an employee who wants time off during the workday for her prayer breaks? The law likely requires you to provide a reasonable accommodation to the first employee’s disability and the second employee’s religion, unless doing so would create an undue hardship. The law also likely requires you to engage in the “interactive process,” to work with those employees to try to figure out a practical solution you can both live with.  Mess it up, and the Equal Employment Opportunity Commission (EEOC) will be spending so much time at your work site that they’ll be playing shortstop on your company softball team.

2.  Know the four R’s of a harassment complaint. What are the four R’s of a harassment complaint, you may well ask? First, recognize whether that employee’s complaint is, indeed, the sort of harassment complaint that has potential legal implications. If it is, then second: respond appropriately by promptly investigating the complaint. Third, once you have investigated, then if warranted, take prompt remedial action. The fourth R stands for retaliation, as in, don’t allow anyone to retaliate against the employee who made the complaint.   Once you do all these things, you can add a fifth R: rest.

1.  Wage and hour claims are your newest nightmare. All those attorneys who wanted to sue your company for sexual harassment in the past now would like to sue you for wage and hour violations. Not only that, but state and federal agencies have basically declared war on employers in this area of law. Those lawyers and agencies may have a different view than you do as to whether a particular worker is an employee or a contractor, is exempt or nonexempt, or is entitled to be paid for that time they spent donning and doffing their special work gear. In the world of employment litigation, these issues are now “number one, with a bullet.” Have your employment lawyer review your wage and hour practices before you end up on the wrong side of that complaint.

We could go on and on, of course, but it looks like we’ve run out of time. So until next week, to borrow Casey Kasem’s classic sign-off, “Keep your feet on the ground and keep reaching for the stars.” Good-bye, Casey, and thanks for the memories!