Personnel Management and Liability Issues

Angelina H. Kirkham | Personnel Management and Liability Issues | Business Law |

There are many issues in the business world today that should concern management in regard to employment liabilities. In the last twenty years, the number of legal claims brought against employers, specifically human resources departments, has gone up tremendously. The human resources department of any company must be aware of the legal ramifications of its actions, and ensure that any issues are fully understood to keep the company protected from legal action. The issues that will be discussed in this paper could result in employment related lawsuits and fall under the following categories: hiring practices, discipline practices, and termination practices. Within these categories there are several issues that could ultimately end up in litigation. These would include: employment at will, equal employment opportunity, the Americans with Disabilities Act, the Family and Medical Leave Act, and sexual harassment. It is not uncommon for lawsuits to be filed claiming a breach of any one of these issues. First of all, it is important for a company to remember that the best way to protect itself from legal action is by setting clear and concise goals, policies, and procedures. Everything must be written down so that if something that is not currently an issue becomes an issue, the bases are covered as far as dates, times and documentation. The hiring practices of a company must comply with Labor laws and Federal Antidiscrimination laws. Equal employment opportunity and the Americans with Disabilities Act would be two of these laws that should be included in the training processes of hiring managers. Equal Employment Opportunity Laws are those which prohibit employment discrimination based on race, color, religion, sex, or national origin, and are included in Title VII of the Civil Rights Act of 1964. [ (Federal Laws Prohibiting Job Discrimination Questions and Answers) ] The Americans with Disabilities Act (ADA) prohibits employers from discriminating against people with disabilities in any aspect of employment; including interviews, hiring, evaluations, compensation, benefits, promotions, layoffs, and firing. [ (Federal Antidiscrimination Laws) ] A person with a disability is defined under ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. [ (Federal Laws Prohibiting Job Discrimination Questions and Answers) ]
Lawsuits have been filed because of a company violating the civil rights of prospective or current employees. An example of a lawsuit filed for a violation of Equal Employment Opportunity Law is Albermarle Paper Company v. Moody, which was filed because testing was done to choose which candidate to hire, and this testing discriminated against women and minorities. The action of the Human Resources department that should be taken to prevent such a lawsuit would be to ensure that women and minorities are NOT being excluded from the pool of applicants by any policy, practice custom or usage that is not directly related to the ability to perform the job.
A lawsuit filed for a violation of the ADA does not necessarily have to be intentional. Things such as accessible curbsides and restrooms must be addressed within every company. In the case of Munson v. Del Taco, Inc., a disabled man sued Del Taco after complaining that its restaurant in California did not provide disabled parking or handicapped-accessible public toilets. As a result of this lawsuit, which claimed discrimination against disabled persons, Del Taco spent $75,000 on renovations to make the parking lot and restrooms handicapped-accessible.
Employment law issues do not stop with the hiring process. Once an employee is hired, issues can arise that would constitute filing a lawsuit for discrimination and / or harassment. Companies must be aware of the practices of management and hourly employees. Strict policies and procedures need to be in place as well as training on such issues as discrimination and sexual harassment. Discrimination could take place in the form of sexual harassment, a violation of the Family and Medical Leave Act, employment-at-will, and could most certainly include the areas already covered (EEO and ADA).
Sexual harassment is an issue of compounding proportion for a company. Every company, no matter how big or small, should have some sort of sexual harassment training program along with policies and procedures covering this issue. In the event of any sort of sexual harassment complaint, it is the duty of management to immediately address the issue and command a “no tolerance” attitude. All complaints need to be documented, investigated, and acted on. Sexual harassment would be described as intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. [ (Sexual Harassment) ] An example of a sexual harassment lawsuit filed against a company was portrayed in the movie “North Country”. Lois Jenson was an employee at the Eveleth Taconite Co. mine in Minnesota where she worked in the 1970s and 80s. Jenson claimed that her and other female employees were regularly harassed by male workers in a sexual, threatening manner. Jenson first filed a complaint with the company, which resulted in retaliation by co-workers. Jenson filed a lawsuit that lasted through various hearings and trials well into the 1990s. Jenson and the other women filing suit finally settled with the Eveleth Taconite Co. for $3.5 million. This ended up being a very costly mistake for the Eveleth Taconite Co. This mistake could have been prevented with the proper training, procedures, and disciplinary actions.
The Family and Medical Leave Act states that employers must provide an unpaid leave of absence of up to 12 weeks due to the birth or adoption of a child or the serious illness of a family member. A person cannot be disciplined or fired for taking time away from work to care for an ailing family member or a new baby. There are forms that every company has to fill out in order for the employee to take time off. When an employer refuses to give out these forms or to grant time off in this situation, a lawsuit could emerge. Policies and procedures must be in place communicating FMLA and the employee must be guaranteed an equal level job upon his or hers return. This does not necessarily mean that the employee will get the same job upon return, but that it will be equal to the previous one.
Employment-at-will is a doctrine of American law that defines a relationship of employment in which either party can break the relationship without liability. This would be true so long as there was no express contract for a definite term of employment and that the employer does not belong to a union. In other words, an employer can discharge an employee for any reason and the employee can equally quit or cease to work. Several exceptions to the doctrine exist, especially if unlawful discrimination is involved regarding the termination of an employee. As a means of downsizing, a company may terminate employees so that they can remain profitable. However, there are legal limitations on an employer 's ability to terminate without reason, which usually relate back to discriminatory claims.
The final aspect of this paper will cover the liability issues that could arise when an employee has been terminated. Firing is a sticky issue as well, and as with the other points in the paper, it is crucial that proper documentation is obtained to cover all bases. To be justly terminated, there must be a paper trail including write-ups or witness statements. In the case of an action that calls for immediate termination, a write-up along with an exit interview are all that would be necessary. A person can not be terminated without just reason unless a condition of employment was discussed or contracted, such as employment-at-will. As noted before, even under this circumstance, legal ramifications can come up from termination. As hard as it is for human resources staff or management to terminate an employee, it could be even harder on the entire company if legal action is taken by that employee because of the termination. Obviously, a person cannot be discriminated against upon termination. This means that a person is protected from being terminated because of his or her race, religion, sex, national origin, disability, or age.
The Age Discrimination in Employment Act of 1967 protects persons over the age of 40, and therefore, an employer can not terminate an employee because of his or her age for the purpose of a younger person taking over the position. A person can also not be terminated as retaliation based on a sexual harassment allegation. The National Labor Relations Act of 1935, also called the Wagner Act, was enacted to protect persons from discrimination because of wanting union representation. In other words, a person can not be terminated because he would like to form a union, or even because he meets with a union representative.
With all of the laws that protect employees, employers need to ensure that proper communication of these laws is extended to management members and/or human resources. With proper training, documentation, and policies and procedures in place, the likelihood of lawsuits being filed against the company is greatly reduced. Even with the hard economic times, employers must not lax on training of individuals in the matters of employment law. Periodic reviews of policies and procedures should be done to ensure that they are up to date and correct. By doing this, employers can be sure that they are in compliance with legal requirements. Finally, an essential part to avoiding a lawsuit is to carefully plan terminations and make sure that the employee being terminated is treated fairly; in a clear concise manner. [ (Wallace, Edwards and Mondore) ]

Works Cited
"A Guide to Disability Rights Laws." ada.gov. 14 October 2009 <http://www.ada.gov/cguide.htm>.

Brown Shaw, Jennifer and Matthew Norfleet. "Vacation and Litigation." The Daily Recorder 30 July 2009.

Brown Shaw, Jennifer and Shane Anderies. "United States Supreme Court Employment Law Decisions 2008-2009." The Daily Recorder 8 July 2009.

"Federal Antidiscrimination Laws." Nolo. 13 October 2009 <http://www.nolo.com/legal-encyclopedia/checklist-24951.html>.

"Federal Laws Prohibiting Job Discrimination Questions and Answers." The U.S. Equal Employment Opportunity Commission. 14 October 2009 <http://www.eeoc.gov/facts/qanda.html>.

Maricopa County Employment Law. 14 October 2009 <http://www.emc.maricopa.edu/faculty/bradley/organizational_leadership/hr-employment-employment_law.html>.

Personnel Management: The Current Issues. Houston: Texas Association of Counties, n.d.

"Sexual Harassment." Wikipedia. 14 October 2009 <http://en.wikipedia.org/wiki/Sexual_harassment>.

Slagle, Richard. Personnel Issues: Hiring, Discipline, and Termination. Houston: Texas Association of Counties, n.d.

"Taking Management Personally." San Francisco Daily Journal 14 August 2009.

Valenza, D. Gregory. "Ricci" And A Hard Place." San Francisco Daily Journal 10 July 2009.

Wallace, J. Craig, et al. "Employee discrimination claims and employee-initiated lawsuits: does procedure justice climate moderate the claims disputes relationship?" Journal of Managerial Issues (Fall 2008).

Cited: Wallace, J. Craig, et al. "Employee discrimination claims and employee-initiated lawsuits: does procedure justice climate moderate the claims disputes relationship?" Journal of Managerial Issues (Fall 2008).