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Total Articles: 32

Why Zero-Tolerance Policies Make Little Sense

Many employers boast of having “zero-tolerance” policies when it comes to workplace misconduct. It’s become a catchphrase for showing that a company takes things seriously and won’t put up with any nonsense. But nonsense is precisely what a growing number of observers believe these policies are.

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.”

Discipline & Disparagement: Does an Employer Have Recourse against Employees Publicly Criticizing Its Products?

What's an employer to do when employees publicly criticize its products and/or services in consumer-facing forums, such as social media? While most employers assume that they have unfettered discretion to punish disloyal employees, a Jimmy John's franchisee, MikLin Enterprises (MikLin), recently learned the hard way that its ability to punish—let alone put a stop to—such conduct is more limited than it realized.

Termination Pay: Tips to Keep an Employer Out of Trouble

In today’s fast-paced business environment of multistate operations and frequent employee turnaround, it is vital for employers to stay on top of the myriad laws governing final wage payments.

This is the End: Four HR Tips to Make Employee Terminations Fair and Final

People break up all the time. Every day, all over the world. But whether a breakup will actually hurt your company has a lot to do with how the message is delivered to the outgoing employee and the process that went into crafting it.

To Terminate or Not to Terminate: That is the Question

If you work or operate a business long enough, it is inevitable that the decision to terminate will be made at some point. This decision, while not an easy one to make, is compounded by issues that can arise immediately after when the terminated employee believes they were “wrongfully terminated” and seek redress through a number of channels including the Equal Employment Opportunity Commission or the court system.

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.

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.

Termination Test

As promised in last week’s webinar, we’re tackling one of the most terrifying topics in the employment law universe: terminations.

Termination Meeting

This week, we’ve been taking on one of the most terrifying topics in the employment law universe: terminations.

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.

How Grinchy Should Employers Be About Online Shopping?

Nearly half of employees plan to shop online @ work this holiday season. What employers should do about it.

Timing is Everything for Employee Discipline

A Carl’s Jr. franchisee in Texas is learning the hard way that timing can be everything when disciplining or terminating employees. Cathy Terry, a store manager, was fired only two days after she was robbed at gunpoint in the restaurant. As the gunman held a gun to her neck and ordered her to take money from the safe, he asked, “Do you want to die for Carl’s Jr.?” Terry opened the safe. Two days later, Terry was fired

How to Conduct a Termination Meeting

Our handy 1-page guide.

The Ultimate Termination Test

Never ever terminate someone unless you can answer a definitive "yes" to each of these 6 questions.

How To Fire Without Getting Fired

Top termination troubles (and what employers can do about them).

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.

Harassment 2.0: Are You Liable For Your Employees' Cyberbullying?

An appeals court in California recently held an employer liable for employees’ off-duty harassment of a disabled co-worker on a blog. Unfortunately, the facts are not unique and could be happening right now in your workplace.

The Two Questions You Should Ask Before Making Any Employment Decision

Asking these critical questions can save employers from experiencing unexpected fall-out from their employment decisions.

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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