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Total Articles: 25

One Size Does Not Fit All: The Need for a Tailored Code of Conduct

Codes of Conduct are designed to set forth an organization’s values and principles, while detailing expectations for employees. In many ways, it is one of the most important documents an organization can develop. At times, when an employer decides it needs to develop a Code, it often asks counsel whether there is a sample Code or boilerplate language the company can adopt. But is an “off-the-shelf” Code of Conduct really of any value to an organization? The answer should be apparent – sufficient consideration should be devoted to a task that the organization will say this is the standard by which our business will operate!

3.8 Million Reasons Why Proper Process in Physician Discipline Matters

Any avid watcher of medical dramas would tell you that a hospital always has the ability to cut ties with any doctor who is not up to snuff. (For podcast fans we highly recommend Dr. Death.) They would tell you this is particularly true if the Department of Health points out that doctor’s errors.

PODCAST: Seven Questions That Employers Should Ask Themselves before Discharging an Employee

Employment terminations are serious business and fraught with potential challenges.

Think it’s okay not to provide a reason for termination? Think again.

Some employers operate under the assumption that “at-will” employment means that an employee does not have to be given any reason for termination of his or her employment. However, that theory may allow an employee to overcome an employer’s motion to dismiss a discrimination lawsuit, since in order to overcome such a motion, a plaintiff simply has to set forth facts sufficient to state a “plausible” claim for relief. That standard means that a plaintiff can set forth claims that would allow the court to draw inferences of discrimination, because of the absence of documentation or other evidence to the contrary.

Dear Littler: Can We Discipline An Employee Who "Took a Knee" During the Anthem?

Dear Littler: I work for a prominent company in a small city here in the Hoosier State, and we are very involved in our local community. We sponsor a corporate softball team, and last night one of our team members “took a knee” during the national anthem before a game. His supervisor asked if the player can be disciplined for this conduct or at least transferred out of the supervisor’s department. I understand the supervisor’s frustration, but I don’t know how to react. Can we do that? I just can’t believe we have to deal with this situation.

Can You Fire an Employee Involved in Racist Protests? Should You?

Following recent events in Charlottesville, Virginia involving a “Unite the Right” rally organized by multiple white nationalist groups protesting the removal of a statue of Robert E. Lee, which turned violent and ended in the tragic deaths of a counter-protestor and two police officers monitoring the situation, a large social media campaign has been undertaken in order to identify the protestors and encourage their employers to terminate their employment. Groups identified as having ties to the Unite the Right rally include members of the Ku Klux Klan, as well as other white supremacist and white nationalist groups, neo-Nazis, skinheads, and the “alt-right.”

Six Proven Tactics To Help Avoid The "Ticking Time Bomb" Employee

Each new headline in the news describing the latest workplace violence tragedy reminds managers and human resources executives of their tremendous responsibilities in attempting to help prevent such senseless acts.

You Can't Fire Me For That – I Was Off Duty!

Employers learned long ago that it’s wise to establish written policies which set forth the standards of conduct expected of their employees. These employers also know that the policies may not simply sit on a shelf (or on an intranet), but must be monitored and enforced in order to remain effective tools for encouraging or prohibiting certain behavior. But can you rely on your policies to discipline or terminate employees for engaging in legal conduct which occurred off-duty, especially if the conduct also occurred off-premises, and did not negatively impact the employee’s performance of his or her duties or your business?

The Chicken Or The Egg?

You finally decided to take the long overdue disciplinary action. Jack has got to be disciplined. But just before you do, Jack, possibly sensing what’s about to happen, makes a complaint of harassment. This is the first you’ve heard of this problem. Is the complaint legitimate? What do you do? Continue with the planned disciplinary action? Put your decision on hold while you investigate? Will it look like retaliation if you proceed with the discipline?

If You Didn't Write It Down, It Didn't Happen

As education and employment lawyers, we experience schools’ collective challenges at a far greater rate than any individual institution. This year, the issue that schools have struggled with most is the failure to document employee-performance challenges, leading to a higher risk in making nonrenewal or separation decisions for employees with substandard performance or poor behavior. This article outlines the concerns and steps schools should take in preparation for the next school year.

Terminations in the Workplace: Practical Tips for Reducing Employer Liability

“You’re FIRED!” Donald Trump makes it look easy on his reality television show, The Apprentice, but savvy employers understand that workplace terminations must be carefully planned and executed to reduce the potential for costly legal claims. For most employers, discharging an employee is difficult enough without the additional stress of a lawsuit for wrongful termination, discrimination, retaliation, or other claims under federal and state employment laws.

"You Can't Fire Me For That – I Was Off Duty!"

Employers learned long ago that it’s wise to establish written policies which set forth the standards of conduct expected of their employees. These employers also know that the policies may not simply sit on a shelf (or on an intranet), but must be monitored and enforced in order to remain effective tools for encouraging or prohibiting certain behavior. But can you rely on your policies to discipline or terminate employees for engaging in legal conduct which occurred off-duty, especially if the conduct also occurred off-premises, and did not negatively impact the employee’s performance of his or her duties or your business?

EEOC Complaint May Make Employers Second Guess Their Standard Separation Agreements

A recent case filed by the U.S. Equal Employment Opportunity Commission (EEOC) may warrant employers’ attention to the language of their separation agreements. The EEOC just filed an action against a national retailer, claiming that the drug store chain engaged in a pattern or practice of discrimination by using a severance agreement that allegedly interfered with employee rights. According to the EEOC’s complaint, the agreement at issue improperly prevents employees from communicating with the EEOC and state anti-discrimination agencies or from filing a charge of discrimination. The EEOC filed suit despite the employer’s use of commonplace language, which is found in standard separation agreements, expressly stating that the agreement is not intended to interfere with employees’ rights to participate in any legal proceeding or cooperate in an agency investigation. The EEOC concedes that the agreement at issue specifically provided.

The Secrets to Respectful Terminations: An Interview With HR Executive and Former State Bar President Charlotte Miller

My former partner, Charlotte Miller, has had a rich and varied career. She is a past president of the Utah State Bar Association and was the first female representative to the American Bar Association from Utah. In addition to these legal positions, Charlotte has held corporate positions including general counsel, chief administrative officer, and global HR-VP. She currently serves as Senior Vice President of People and Great Work for O.C. Tanner, a worldwide leader in employee-recognition programs.

The Advantages of Offering Supplemental Unemployment Benefits Instead of Severance, Part I: FICA Taxes and More

According to the Internal Revenue Service (IRS), severance is subject to Federal Insurance Contribution Act (FICA) tax and certain supplemental unemployment benefits are not. That’s right . . . employers can provide today, just as they have for years, termination benefits that are FICA-tax exempt. One of the primary benefits of providing termination benefits that qualify for the IRS-recognized exclusion from FICA tax is that those benefits typically do not impact the employee’s eligibility for, or amount of, state unemployment benefits.

NFL Suspends Player for Violent Helmet Swing Towards an Opposing Player

Between the whistles of play, professional football is an arguably violent game. Players often put their hearts and souls into their on the field performances for the benefit of their teams. As a result, emotions can often run high.

Legal Alert: Public University Lawfully Terminated HR Vice President Who Published Op-Ed Insensitive To Homosexuals

Executive Summary: The University of Toledo terminated an Associate Vice President for Human Resources after she wrote an op-ed column arguing that homosexuals could choose their sexual orientation and thus were not entitled to the same protections as persons of color. This view ran contrary to the University's diversity and equal opportunity policies. The Sixth Circuit upheld the employee's termination. The court held that the employee's speech was not protected by the First Amendment because she held a policymaking position and was speaking to a policy issue.

A New Source of Business: TMI

Truth be told, people who do what I do, represent employers in disputes with their employees really don't need new sources of business. Still an article in today's New York Times, Sharing Too Much Information in the Workplace, relays complaints by older managers about comments made by 20 year olds in the workplace, indicates there's always some trend that ends up resulting in more lawsuits.

Smarter Firing Leads to Fewer Unemployment Payouts

How much your organization pays for unemployment in­ surance is based, in part, on how many of your former employees have successfully filed claims against you. Under­ —not from the head of HR, who probably heard about it secondhand. standing who is eligible for unemployment benefits and who isn’t can go a long way toward keeping insurance rates low.

Problem Employees? Here's A Solution

Issuing employee discipline is one of the hardest aspects of being a supervisor and, since it's so difficult, it's often not done well – when it is done at all. Discipline delayed or mishandled is one of the primary causes of federal and state-agency discrimination charges as well as claims of wrongful discharge, all of which create a distraction from the business and an unplanned expenditure of resources to defend against claims. As long as employees are imperfect, various degrees of discipline will be required in every organization. But correct discipline is neither intuitive nor easy, either for the supervisor or for the employee.

Retail Industry: Terminating Employees For Theft, Part 2

In our last issue (Retail Update, March 2011) we looked at some ideas about how to investigate, catch, and terminate employees who are stealing from the company. In this conclusion, we'll talk about some ways to avoid – or at least lessen the possibility of – getting sued.

Employee Discipline: Hitting The Reset Button At Work

If you have ever attended an employment law seminar or a management training class, you have no doubt heard the speaker extol the virtues of consistency when dealing with employees. Consistency provides your employees with clear direction and minimizes uncertainty. Once your employees know what you expect, they are more likely to meet those expectations without the need for discipline.

Common Mistakes When Terminating Employees For Theft, Part 1

Employee theft is an issue besetting retailers every day. A 2005 survey by the University of Florida puts the cost at $17.6 billion, and concludes that employee theft accounts for 47% of inventory shrinkage.

Top Ten Things to Do When an Employee Resigns to Join a Competitor.

When an employee resigns to join a competitor, it is important to respond promptly. Odds are that the employee has been orchestrating his or her departure for weeks or months. The security of your trade secrets and/or customer relationships may have already been compromised. It is important to act quickly. Here are some things to keep in mind.

Loose Lips Sink Stores: The Dangers Of Defamation To Retailers.

You have – speaking diplomatically -- a difficult employee. From his first week on the job he has griped constantly that the company is "unfair" and hinted that he knows lawyers who can "take care of this situation." He is what we employment lawyers call a walking lawsuit.
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