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Retaliation

Don’t bad-mouth terminated employees

07/06/2009

Here’s a timely warning during bad economic times: No matter why you discharge an employee or terminate a working relationship, resist the temptation to interfere with that person’s future employment prospects. In Ohio, such ex-employees will have multiple avenues for potential lawsuits.

Know the limits of employee free speech—no need to tolerate out-of-line protests

06/26/2009

Employees have the right to voice concerns and complaints about perceived workplace discrimination. But employers have rights, too. Employees don’t have the right to communicate their concerns in ways that are disruptive, insubordinate or that otherwise violate reasonable company policies. You can punish employees who don’t play by the rules.

Public employees and ‘advocacy’ speech: It’s not protected if it’s part of the job

06/26/2009

Public employers can’t punish employees for speaking out on matters of public importance. That doesn’t mean, however, that whatever an employee says is protected. One big exception involves speech when part of the employee’s job is to speak up about the topic. That’s not protected speech.

Poor review not grounds for FMLA retaliation suit

06/26/2009

All by itself, a negative performance review after an employee has taken FMLA leave doesn’t give the employee a reason to file a lawsuit. Unless the poor review is accompanied by something tangible—like a demotion or the loss of a pay increase—courts won’t see the review as retaliation.

Exonerated, gone anyway: You can independently assess misconduct

06/26/2009

A New Jersey appeals court has upheld the termination of an employee even though a government agency cleared him of the alleged misconduct that led to his dismissal. That means employers still have the right to make their own decisions about conduct and what they believe happened.

Use ‘fresh-start’ policy to cut retaliation risk

06/26/2009

It often makes sense to give a fresh start to a poorly performing employee who has been complaining about discrimination. Place her in another position with a new supervisor, new co-workers and a clean disciplinary record. Then if her workplace problems persist, you can terminate her without worrying about retaliation claims.

How to terminate employees who have been out on workers’ comp

06/26/2009

Terminating an employee who has been out on workers’ compensation leave is a high-stakes process. How well you handle it can affect your ongoing workers’ compensation liability—and could also subject you to claims of wrongful discharge or retaliation. It’s made all the more complex by the fact that your workers’ comp carrier’s goals may conflict with yours.

Feel free to reassign employees if it’s justified—you won’t be liable for retaliation

06/12/2009

Ever since the Supreme Court decided the White v. Burlington Northern case in 2004, retaliation lawsuits have been all the rage. But lately there’s been good news for employers. Courts have been refining the retaliation standard for almost five years and have begun concluding that truly minor work changes aren’t retaliation.

You’re now strictly liable for supervisor sexual harassment

06/12/2009

In a significant ruling interpreting the Illinois Human Rights Act, the Illinois Supreme Court recently expanded employers’ potential exposure to sexual harassment claims and damages by holding that an employer is strictly liable for sexual harassment committed by a supervisor, even if the supervisor does not directly supervise the employee who is harassed.

You don’t need a Sherlock Holmes investigation to deny ERISA benefits

06/05/2009

A federal appeals court has made it harder for employees to challenge your decision to deny a benefit covered by the Employee Retirement Income Security Act (ERISA).