Train Employees to Avoid Legal Claims
Not sure where to best allocate your training dollars that will give you the maximum return on your investment — your investment in minimizing legal claims? Look no further than your own human resources department. Yes, training your employees about the law and proper ways to behave in the workplace are the best solutions for tackling the rise in legal claims.
A great majority of the reported litigation cases in the calendar year 2006 focused on employment claims — specifically, discrimination claims based on age, gender and race. Add to it increasing retaliation claims against employers and sexual harassment cases.
Employees need constant reminders (i.e. training) not to discriminate against employees (and guests) based on age, gender or race. Employees within these classifications are protected against discrimination and must be treated fairly. It's important for employers to establish legitimate, non-discriminatory reasons for its decisions to terminate employees who fit within these protected categories.
In addition, employers need to show that employees are treated the same as similarly situated managers of the opposite gender. Providing lower wages or terminating an employee of one gender will be compared to the wages and employment decisions made concerning the other gender and will need to withstand scrutiny.
Race discrimination is focused not only on cultural differences but also on skin color. Remarks or nicknames made by employers or fellow employees that are found to be offensive to another employee who is in this protected class may subject you to a claim for discrimination based on race.
Retaliation claims by employees seem to accompany claims for discrimination and harassment. If an employee complains about inappropriate or illegal behavior, be careful about making adverse employment decisions too soon after the complaint is lodged. Complete your investigation of the complaint, document your investigation and seek counsel from a qualified employment attorney before making a decision to terminate the employment relationship. A judge or jury will look at the timing of the complaint and the employment decision all the while questioning whether the adverse employment decision was motivated by the initial complaint.
One important U.S. Supreme Court case, Burlington Northern & Santa Fe Railway Co. v. White (U.S. 6/22/06) now opens up the possibility that retaliation against an employee by an employer does not have to show that the employer's actions negatively affected the employee in a way that directly impacts their employment. It may be enough if an employer's actions would have dissuaded a reasonable worker from making or supporting a discrimination claim. Although petty slights or minor annoyances in the workplace do not generally give rise to a retaliatory claim, not inviting a co-worker to lunch may be deemed retaliatory if the lunch would be a necessary progression toward advancement.
One court decided that it was not necessary for an employee to specifically request to take FMLA (Family Medical Leave Act) leave as required in internal procedures, but the employer must infer from discussions and behavior that FMLA leave was being invoked. Reliance on your internal FMLA policies may not be sufficient and may warrant a closer look by an experienced lawyer.
Although employment claims are on the forefront, don't dismiss the numerous claims on Dram Shop Act liability and premises liability, i.e., slips and falls and criminal activity. Training in these areas is essential. The bottom line: Be careful how you treat employees in the workplace to avoid defending your actions in court.
Diana S. Barber, J.D. is the visiting lecturer at Cecil B. Day School of Hospitality, J. Mack Robinson College of Business at Georgia State University and a practicing attorney specializing in hospitality law. She can be reached at firstname.lastname@example.org. This article should not be construed or relied upon as legal advice. If you have questions concerning particular situations and specific legal issues, please contact a qualified attorney. For additional information go to www.hospitalitylawyer.com.
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