No matter how compliant and good intentioned a company may be with its legal obligations, it does not eliminate the possibility that a disgruntled employee will file a discrimination claim against the company. It is important to rationally approach the situation and the following steps are recommended to minimize the company’s exposure.
- First and foremost, the company should create an organized response with a single person in charge of overseeing the response.
- It is critical to immediately identify all relative documents whether those are paper or digital. Once these documents have been identified, the company should make sure they are secured and preserved for future use.
- Under no circumstances should the company take any action against the employee if that employee is still currently with the company. The law prohibits retaliating against employees who have engaged in protected activity. The worst thing the company can do is to take what might have been a meritless claim and turn it into a real problem by retaliating against the employee.
- The company should also check to see if it has employment practices liability insurance. If so, a timely claim should be filed. If the policy allows the company to select its own attorneys, it should do so as soon as possible.
If the company does not have insurance, it should immediately obtain experienced counsel to help it through the process. There are many nuances in defending employment claims that an unexperienced attorney or lay person will not have the necessary expertise to handle appropriately.
- Finally, it is important to insulate the claim as much as possible from the workforce. Steps should be taken to make sure that communications regarding the claim be privileged and confidential. The matter should not be openly discussed in front of other coworkers unless they are witnesses and have a meaningful need to participate in the defense.
As of January 1, 2019, rezoning protest petitions for cities will become a thing of the past, at least as required by the Wisconsin Statutes. 2017 Wisconsin Act 67 eliminated the statutory rezoning protest petition provisions. Read More… “Rezoning Protest Petitions Under State Law Become a Thing of the Past as of January 1, 2019″
In light of the recent spotlight on sexual harassment in the workplace, it is important for employers to think about the somewhat squeamish topic of workplace romance. As long as employees interact with each other during the workday, there is always a chance that romantic relationships may develop. This issue presents an interesting balancing act between respecting the privacy of employees and protecting an employer from legal liability. Read More… “The Rules of Attraction: Do Employers Need Workplace Dating Policies?”
A useful tool that I do not see enough employers using is arbitration agreements with their employees. There is no doubt that using arbitration agreements has positives and negatives, but it is one of the very few, limited ways in which an employer can force an employee to forego the rather ridiculously lengthy and expensive processes involved with defending claims for discrimination, retaliation, or the like. As such, more employers should be using arbitration agreements to proactively address such situations. Read More… “Using Arbitration Agreements With Employees To Control Costs and Exposure”
Managing your way through the Social Security system can be a very challenging maze and proper planning can sometimes increase the benefits to which you are entitled. As the Social Security website states: “Even if you have never worked under Social Security, you may be able to get spouse’s retirement benefits if you are at least 62 years of age and your spouse is receiving retirement or disability benefits.” Note that you can also receive the spouse’s benefit no matter what your age is if you are caring for the spouse’s child who is also receiving benefits. Based upon the way the Social Security system works, both spouses can request benefits based on their partner’s Social Security work record. When you apply for Social Security benefits based upon your work record, the Social Security Administration considers you as filing for both your individual and your spousal benefits. You are supposed to receive the higher of your own accumulated benefit or one-half (1/2) of your spouse’s benefit provided your spouse has already applied for Social Security. Read More… “Optimizing Social Security Spousal Benefits”
On Monday, May 21, 2018, the United States Supreme Court in Epic Systems Corp. v. Lewis, ruled in a 5 to 4 decision that employers can utilize mandatory arbitration provisions to bar employees from bringing class-action lawsuits over employment disputes. In reconciling conflicting federal laws, the Supreme Court held that mandatory arbitration agreements providing for individualized proceedings must be enforced.
As a practical matter, the Court’s decision is a big win for employers. Companies may include provisions in employment contracts that require employees to bring any dispute through individualized arbitration and bar the filing or joining of a class-action lawsuit. As compared to arbitrating a single employee dispute, a class-action lawsuit, even a frivolous one, can consume substantial time and resources. Employers would be wise to consult with an attorney about whether using mandatory arbitration agreements could be beneficial to help limit potential claims and damages over employment related disputes.
The Supreme Court’s decision can be accessed here.
For more information on the history of this case, please see a prior Mallery & Zimmerman blog post.
A recent United States Supreme Court decision has changed the game in interpreting whether employees are exempt from overtime requirements. For more than 70 years, the Court has interpreted exemptions to the Fair Labor Standards Act (“FLSA”) narrowly. The FLSA is a 1938 law that requires employers to pay overtime to certain employees who work more than 40 hours in a week. There are many categories of employees who are exempt from this requirement. The Court, however, has long-held that such exemptions should be construed narrowly with an eye towards the payment of overtime. On April 2, 2018, the Court departed from this principal. Read More… “U.S. Supreme Court Changes Course on 70 Years of Federal Overtime Law”
On April 3, 2018, the Wisconsin legislature enacted 2017 Wisconsin Act 235, which includes several reforms to litigation taking place in Wisconsin state courts. The changes include a new definition of what is “discoverable” in litigation, limitations and alterations to certain aspects of discovery and changes to several statutes of limitation. Below is a short summary of a few of the more important changes. Attorneys practicing law in Wisconsin should be aware of these changes, which will take effect July 1, 2018. Read More… “Important Changes to Litigation in Wisconsin on the Horizon”
A recent decision from the United States 6th Circuit Court of Appeals found that working remotely can be a reasonable accommodation under the Americans with Disabilities Act. Employers should always remain cautious about applying rigid and inflexible rules to requests for reasonable accommodations.
In Meachem v. Memphis Light, Gas & Water Division, the Plaintiff was an in-house employment attorney for Memphis Light. After a history of miscarriages, her physician placed her on bed rest for the last 10 weeks of her pregnancy. The Plaintiff requested that she be allowed to work from home as an accommodation. Her employer denied the request. The 6th circuit found that she could perform the essential functions of her job remotely for the applicable time period. It also found that other employees had been allowed to work from home without objection. Therefore, the Court upheld the jury verdict in favor of the Plaintiff finding that her employer had violated the Americans with Disabilities Act.
The real lesson from cases such as this is inflexible policies simply do not work with the Americans with Disabilities Act. Employers need to engage in an interactive process to prove and determine whether or not an accommodation is reasonable and does not create an undue hardship. Time and time again employers apply a policy without thought and are found liable. More specifically to this case, working from home with the technologies of the time, could certainly be found to be reasonable in certain circumstances. Therefore, carefully consider all aspects of any request before deciding whether or not to deny it. If in doubt, discuss the issue with your attorney.
Employers beware. Many employers utilize non-solicitation of employee agreements as standard practice when hiring new employees. Such agreements typically prevent a former employee (in usually a high level or management position) from encouraging current employees to leave the employer to join him or her at their new company. Despite the practicality of these agreements, the Wisconsin Supreme Court has called into question the enforceability of non-solicitation of employee agreements, and employers who utilize these agreements would be wise to reevaluate them in light of the Court’s decision in Manitowoc Company, Inc. v. Lanning, 2018 WI 6 (Jan. 19, 2018). Read More… “Non-Solicitation Agreements Invalidated by Wisconsin Supreme Court as Overbroad”