Discrimination in the workplace is when one or more employees are treated unfavorably, based on characteristics like age, race, gender, or sexual orientation.
To Outline Policies and Expectations An employee handbook sets forth the company’s expectations and rules for its employees. It also details what consequences to expect when those expectations are not met or violated. A few items to include in this section are: Timeliness Who to call when you are late or not coming in Timeline for requesting leave Expectations for professionalism Statements of At-Will Employment Equal Employment Opportunity policies Harassment & discrimination reporting Digital and social media policies Leave policies, including but not limited to FMLA, PTO, sick leave, and maternity/paternity leave To Foster a Consistent & Fair Environment Your handbook should deliver a clear, concise message to ensure company-wide fair treatment for all. Your handbook is a rulebook that everyone is bound to and no one is exempt from. It is one of the strongest tools you can use to combat claims of discrimination or unfairness in the workplace. To Defend Against Unemployment Claims & Lawsuits A well-written handbook goes a long way in defending against unemployment claims and other potential legal actions. Many employers have regrettably found themselves in hot water after neglecting important handbook provisions for items such as: Discrimination Retaliation Harassment On-the-job injuries Many times, simply having a signed acknowledgment of the company handbook has released employers from damning legal action. It is a step you don’t want to risk skipping. To Outline Benefits and Compensation Aside from being made aware of what your company expects of them, it is important that your employees know what they can expect from you too. The benefits and compensation sections of your handbook will likely be the “most loved” section of the book, and should detail items important to your employees such as: Benefits available and enrollment processes Probation periods Performance review policies Pay schedule Review and/or raise schedules These are just a few items that you should always include in your company’s employee handbook. And remember, this isn’t just a document outlining expectations, it is a part of your business that reflects your culture and who you are as a company. Make sure that your handbook reflects your values and mission—it will define you to everyone who decides to come on board.
Document Each Stage of the Termination You can justify your termination by documenting. From the moment you notice you have an issue with your employee, you will want to start documenting all communications with that employee, their work issues, and keep performance reviews in a folder. If there are any coaching and extra training sessions issued to help and keep the employee on par, you will want to document those as well – because this will show that you did what you could to help the employee stay. Communicate Concerns Clearly Wrongful termination lawsuits typically happen because an employee did not realize there was anything wrong; therefore, they are terminated without reason. If an employee is in danger of losing his or her job, do not try to sugar coat it or avoid telling the employee. Instead, let them know what issues you have and possibly ways to correct it – giving the employee a chance to redeem themselves. Also, by discussing specific issues you have with them, you have more proof when it comes to justifying a termination if one occurs later on. No matter what, make sure you inform the employee immediately after an issue arises so that they have adequate time to correct it. Take Steps to Protect Your Business Once you have done everything you can to help that employee, and they have not improved within a fair timeframe, it may be time to terminate the employee. Before you actually start the termination process, make sure your reasons for the termination do not violate state or federal law. If you are unsure, consult an attorney. Some reasons that can violate the law include pregnancy, gender, age, or other types of discrimination. Make sure that you gather all documentation that supports or justifies your reasons for the termination. You will want to sit down with the employee with all of your documentation and discuss why you are letting them go. Show them performance reviews, the opportunities to improve that you have provided, and how they have not improved since then. You will want to give all of the details and not be ambiguous about the fine points. The broader you are, the more confusion that the employee may have – and the higher chance for a wrongful termination. Do Not Argue If the employee pleads or argues with you, do not engage. Simply state your facts and terminate the conversation. It is best that you have a witness there – but not a peer employee. You should have a member from your human resources department or another manager present for the termination. Having an employee’s peer present could be a violation of their rights. Cut all employment ties right away. That includes gathering any information, badges or parking passes the employee may have. If the employee has a login code, you will want to have your IT department change that or deactivate it immediately so that they no longer have access. Allow the employee to clear out their personal belongings, while supervised, and escort them to the doors. By preparing for the termination ahead of time, you can reduce the likelihood an employee will be able to sue. While no one can predict the behavior of a terminated employee, having a employment law attorney present can help your termination.
Over a day-long session in mid-January and again in February, labor and employment law specialist Tim Bowles will cover the structure and span of current workplace law from a management perspective, including the significant changes for 2020 in California. He will include: • Workplace discrimination, harassment and retaliation protections • Independent contractor vs employee status (including the effects of “Assembly Bill 5”) • Whistleblower protections and policies • Why HR communication and documentation are vital • Hiring applications, interviews and testing • Minimum wage, overtime and overtime exemptions • Staff training, with sample policies and how to implement them • Workplace drug use and testing (including the effect of marijuana decriminalization) • Worker privacy and free speech issues • Sick leave polices • Discipline and termination basics The seminar is a must for all business owners, executives and personnel management staff, setting the foundation for confident hiring and stable business expansion in the new year and beyond. Emphasis is on practical application. Attendees are encouraged to ask questions on their particular legal challenges or concerns throughout the session. Our updated model employee handbook policy and forms will be available in conjunction with this seminar. These sessions are always well-attended, informative and, according to some, fun: “So helpful and thorough. Very entertaining and educational. I’m not sure how Timothy managed to make legal fun, but he did!” “Really great seminar. Mr. Bowles really breaks down these labor laws simply making it easy for the average employer to confidently grasp the main understanding of basic labor regulations. I found this very informative. I very much appreciated my experience and highly recommend.” “The seminar was very informative. I was able to get all of my employment law questions answered and even learned new things I didn’t know I needed to know. Tim is a great speaker and I look forward to hearing him again.” Where: TBD When: Friday, January 24 or Friday, February 28, 2020, 9:30 a.m. – 4:30 p.m. Pricing: $200 first company attendee; $175 for each additional person attending. Lunch and snacks will be served. To reserve your spot, please contact us at (626) 583-6600 or [email protected] Seating is limited.
Parker v. Reema Consulting Services: Facts of the Case A male colleague employed at Reema Consulting Services Inc. started a rumor that the plaintiff, Evangeline Parker, received six promotions in a little over a year due to sleeping with her boss. The male colleague did not receive comparable promotions at Reema Consulting Services, Inc. The rumor was well-known throughout the Company and was even spread further by the highest-ranking manager at the warehouse who asked the man accused of sleeping with the plaintiff “hey, you sure your wife ain’t divorcing you because you are f--ing [Parker]?” Id. at 300. As the rumor spread, the plaintiff "was treated with open resentment and disrespect" from many coworkers, and her "work environment became increasingly hostile." Id. The plaintiff complained to the manager of the warehouse about his comments and the manager informed her that “he could no longer recommend her for promotions or higher-level tasks because of the rumor.” Id. When the plaintiff filed a sexual harassment complaint with human resources at Reema Consulting Services, Inc., she was told to stay away from the employee who started the rumor against her. Eventually, the plaintiff was given two written warnings and was terminated from the Company. Thereafter, the plaintiff filed a claim for sex discrimination. Court Holding While the District Court dismissed the plaintiff’s claim because it found that the allegation was based on alleged conduct, not the plaintiff’s sex, the Fourth Circuit of Appeals reversed the lower court’s decision. The court stated that “the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally woman, not men, use sex to achieve success.” Id. at 303. Altogether, the court found that the plaintiff plausibly alleged that she suffered harassment because she was a woman. The Fourth Circuit Court of Appeals includes the federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Based on this case, employers may be held liable for sex discrimination when management encourages the spread of rumors in the workplace and the rumors cause an adverse employment action to the employee. Employers should be vigilant in quashing rumors when they begin and appropriately responding to complaints of rumors and sex harassment. This case shows how Courts have increasingly been taking a broad view of sex discrimination and harassment in this #MeToo era.
ELIMINATING ON-CALL SYSTEMS, AND PAYING TO THE PUNCH. Prudent employers may want to consider eliminating systems that require employees to be on-call before a shift, whether or not they actually get scheduled. The California Court of Appeals favors employees in its decision in Ward v. Tilly’s, Inc., requiring employers to compensate employees with reporting time pay for calling in. PRO TIP: Eliminate (or at minimum, revise) on-call systems to comport with this decision, and seek counsel to assess any potential liabilities. Payment systems that are rounded to the nearest dollar are increasingly becoming heavily litigated against. PRO TIP: Eliminate payment systems that round, and pay to the punch. EMPLOYEES CAN BE BOUND TO ARBITRATION PROVISION AGREEMENTS WITHOUT SIGNING. “At-will” employees can demonstrate consent to arbitration provisions delineated in employment agreements even if they do not sign the agreement. This consent is obtained from their continued employment after being properly notified of an agreement including a new dispute resolution program. PRO TIP: Keep a record of properly notifying employees, and ensure that all practices and agreements are fair. EMPLOYERS CAN REQUIRE NON-SLIP SHOES. Non-slip shoes are so common, especially in the food industry, that they are no longer considered a business expense eligible for reimbursement by the employer. PRO TIP: Ensure that other reimbursable expenses are being properly noted. Do you require your employees to buy steel-toed shoes in order to properly do their job? Don’t forget to reimburse them for that expense! HELLO EMPLOYEES, GOODBYE INDEPENDENT CONTRACTORS. Classifying individuals as employees or independent contractors is trickier under the newly implemented “ABC Test.” In sum, most workers must now be classified as employees. However, this is a very fact-sensitive analysis to be done by an attorney. PRO TIP: This is a very new and changing area, so it's probably best to consult with an attorney! #METOO. By January 1, 2020, every employer with more than five employees must provide sexual harassment training. Every employee must receive the training, regardless of their status at the company. PRO TIP: Do you employ more than five employees? If they have not received sexual harassment training yet, they must. EVERY EMPLOYER’S FAVORITE TOPIC: PRIVATE ATTORNEYS GENERAL ACT OF 2004 (PAGA). PAGA is like a modified class action lawsuit where a percentage of the proceeds go to the state. Claims for inaccurate payment of wages and other violations under PAGA are increasing every day. PRO TIP #1: Consult with your attorney and have them review your payment practices. They know what to look for, and can provide you with a solid foundation for calculating wages for your employees. pro tip #2: Consult with your attorney to ensure that your policies regarding rest breaks are in line with what the law requires. PRO TIP #3: Consult with your attorney to ensure you are calculating the correct rate of pay in every possible instance.
An outdated workplace policy manual can cause its own set of problems. In employment law, the only thing constant is change. Our 2019 model employment handbook and forms contain significant revisions to keep pace with new laws and recent case decisions, many motivated by the #metoo movement. Our model forms and policies include: • Employment application (including releases that acknowledge an employer’s use of pre-employment tests consistent with the Americans with Disabilities Act and California’s constitutional privacy protection); • Form job description (again, setting the foundation for pre-employment use of tests); • Pre-employment procedures policy (properly positioning the above tests as aimed at job-related qualities rather than physical or mental disabilities); • Employment agreement (including confidentiality/non-disclosure of company trade secrets); • Alternative dispute resolution agreement (establishing private mediation and arbitration in lieu of court-filed complaints and limiting class action participation to the extent possible); • Meal and rest break acknowledgments (confirming employer provision of required breaks); • Paid sick leave policies (to comply with California’s recently enacted requirements); and • Termination policy, checklist and standard release (to be applied with troublesome employees for greater protection against later, frivolous suits). Our comprehensive model employee handbook includes: • Conditions of company employment • Discrimination and harassment, prevention and handling • Employee compensation • Employee benefits • Employee job performance; mutual termination rights • Employee privacy expectations, employer access to employee-maintained databases and social media guidelines • Paid and unpaid time off • Job-related injury or illness • Workplace health and safety • Drug and alcohol policy; drug testing CONTACT US TO ORDER NOW To order or for more information, contact client services director Loretta Gardea at 626.583.6600 or email her at [email protected]
Get the answers to "what is workplace discrimination?," "what are the main discrimination laws?," and "what can I do if I've been a victim of discrimination?"
by attorney Daphne Lori Macklin
Learn what you can do when your civil rights are being violated, including filing an EEOC complaint or a complaint with a state agency.
Learn how to protect yourself if you're a victim of discrimination. This guide explains the process for internal company complaints as well as EEOC complaints.