Frequently Asked Questions
Since my employees are at-will, I can terminate them for any reason, right?
Not quite. Even at-will employees are protected under federal and state discrimination laws, which means you can terminate them for any reason except one that is discriminatory. Easy enough, right?
You’ll still want to consider the implications of federal and state discrimination laws before you decide to terminate an employee and develop a plan to avoid the appearance of any wrongdoing. If the employee (or an applicant in a failure to hire setting) files an administrative charge or lawsuit, your company may have to introduce evidence to prove that you had a legitimate nondiscriminatory reason for terminating the employee. Even when your decision was based on all the right reasons, you could be roped into lengthy, expensive proceedings if you haven’t taken the proper precautions to protect your company.
Do not try to navigate these laws alone. Let me guide you through the termination process so that you can reduce the chance you will be sued—and strengthen your defense if you are.
You’ll still want to consider the implications of federal and state discrimination laws before you decide to terminate an employee and develop a plan to avoid the appearance of any wrongdoing. If the employee (or an applicant in a failure to hire setting) files an administrative charge or lawsuit, your company may have to introduce evidence to prove that you had a legitimate nondiscriminatory reason for terminating the employee. Even when your decision was based on all the right reasons, you could be roped into lengthy, expensive proceedings if you haven’t taken the proper precautions to protect your company.
Do not try to navigate these laws alone. Let me guide you through the termination process so that you can reduce the chance you will be sued—and strengthen your defense if you are.
Who can bring discrimination charges against my company?
Since employment laws generally attach at the application stage of the employment process, the applicant you considered for an open position but did not hire can bring charges for failure to hire. An existing employee can also bring charges if they are not promoted for a higher position, if they are demoted from their previous position, or if they are terminated with or without cause. The same rings true for employees who are employed on a probationary basis—just because an employee is on probation doesn’t mean an agency or court couldn’t determine your company discriminated against her.
What should I do after an applicant or employee files an EEOC or state charge?
An EEOC or other administrative charge is the first step in a potentially long litigation process, and how you respond to it is imperative. Immediately after you receive a charge, you should begin working quickly and thoroughly to prepare the company's response. If your response to the charge is incomplete or only partially developed, it may hurt your ability to defend the company later. Start by gathering and working to preserve any evidence that might be relevant to the employee's claims. This information may include tangible documents, electronically stored information (such as files and e-mails), or testimony of employees with knowledge of the situation.
Developing evidence as early as possible will make it easier for you to conduct an internal investigation of the claims, prepare the company’s response to the charge, and defend the company in court down the road. You'll want to compile a strong record of the legitimate nondiscriminatory reason(s) for your company's decision, but be careful not to ignore information that is neutral or perhaps unfavorable to your company's position. A successful litigation defense will anticipate the applicant’s or employee’s strongest arguments and demonstrate why your company’s position is superior.
More importantly, the mere fact that your company has received a charge or other litigation threat will likely trigger legal obligations to preserve all relevant evidence. This obligation goes far beyond just not shredding documents, and it continues to get more and more complex with the development of technology. An experienced employment lawyer can guide you through this cumbersome process and craft your company’s response to the charge so that your company is in the strongest position it can be to defend itself.
Developing evidence as early as possible will make it easier for you to conduct an internal investigation of the claims, prepare the company’s response to the charge, and defend the company in court down the road. You'll want to compile a strong record of the legitimate nondiscriminatory reason(s) for your company's decision, but be careful not to ignore information that is neutral or perhaps unfavorable to your company's position. A successful litigation defense will anticipate the applicant’s or employee’s strongest arguments and demonstrate why your company’s position is superior.
More importantly, the mere fact that your company has received a charge or other litigation threat will likely trigger legal obligations to preserve all relevant evidence. This obligation goes far beyond just not shredding documents, and it continues to get more and more complex with the development of technology. An experienced employment lawyer can guide you through this cumbersome process and craft your company’s response to the charge so that your company is in the strongest position it can be to defend itself.
How do I protect my company from future discrimination claims?
At the most basic level, your company should have an equal employment opportunity policy, a policy prohibiting retaliation, and a policy against workplace harassment.
You can't simply talk the talk in your policy manual, though—you've also got to walk the walk. Stated policies will not offer any legal protection unless they are understood and enforced consistently. Employees should be trained at least biannually to ensure that they fully understand these policies and acknowledge their understanding in writing. In addition, since supervisors have a legal duty to discipline employees and enforce company policies, they should receive training on discrimination and workplace harassment annually, at a minimum.
If your company has not yet formally adopted written nondiscrimination policies, or if you haven’t reviewed your policies lately for compliance with current employment laws, you should enlist the help of an experienced attorney to draft effective policies. An attorney can also design and implement a training program for your company if your employees are not currently receiving training or if you would like to improve your existing training program and verify its conformity with all applicable laws.
You can't simply talk the talk in your policy manual, though—you've also got to walk the walk. Stated policies will not offer any legal protection unless they are understood and enforced consistently. Employees should be trained at least biannually to ensure that they fully understand these policies and acknowledge their understanding in writing. In addition, since supervisors have a legal duty to discipline employees and enforce company policies, they should receive training on discrimination and workplace harassment annually, at a minimum.
If your company has not yet formally adopted written nondiscrimination policies, or if you haven’t reviewed your policies lately for compliance with current employment laws, you should enlist the help of an experienced attorney to draft effective policies. An attorney can also design and implement a training program for your company if your employees are not currently receiving training or if you would like to improve your existing training program and verify its conformity with all applicable laws.
Am I required to pay my employees overtime?
As a general rule, all employees are entitled to overtime pay for each hour worked over 40 hours within a given week. A company can only forgo paying overtime if an exception to this rule applies. The exceptions require that the position meet a minimum weekly salary level—now $913 per week—and that the primary duties of the position meet the statutory definition of the executive, administrative, professional, or other exemption. With the Department of Labor's recent amendments to the wage and hour regulations, now is the perfect time to review your job positions with an experienced attorney to determine whether each of your employees is eligible for overtime wages.
Can I regulate political speech or affiliations in the workplace?
In various ways, yes. The First Amendment right to free speech does not apply to the private workplace, so employers set the tone with carefully developed employment policies. With the upcoming presidential election looming, it is imperative that employers review and update policies to promote a working environment that is sensitive to—but still effective in—today’s polarizing political landscape.
Employers should be mindful that while they may be permitted to regulate or prohibit certain political conduct, the exact speech and the context in which it arises could limit their ability to enforce such regulations. For example, the extent to which employers can restrict political discourse will vary from state to state. Some states prohibit any action based on political affiliations. Other state and municipal laws may place constraints on responses to political activity outside the workplace. Moreover, laws and regulations are constantly changing, and any modifications will continue to impact the scope of permissible employment policies.
In some extreme cases, on the other hand, it may become necessary for employers to restrict certain politically-motivated speech. Even if civil political discourse is permitted in the workplace, federal law requires employers to guard against speech or conduct that crosses the line into harassment or discrimination. Hot button issues such as immigration reform, national security, and religious freedom could make it particularly challenging for employers to distinguish between appropriate political discussion and harassing or discriminatory speech.
Generally speaking, the best practice for employers is to review current policies on workplace speech—and political speech within the company’s dress code—and ensure that any restrictions are enforced fairly and consistently. Managers should review anti-harassment and anti-discrimination policies with employees, particularly emphasizing that rhetoric used on the campaign trail may not be appropriate in a professional setting.
If your company has not adopted formal policies, or your policies need review, seek an experienced attorney’s help to navigate you through this developing environment. An attorney can verify conformity with applicable laws and assist in establishing or refreshing policies throughout your organization.
Employers should be mindful that while they may be permitted to regulate or prohibit certain political conduct, the exact speech and the context in which it arises could limit their ability to enforce such regulations. For example, the extent to which employers can restrict political discourse will vary from state to state. Some states prohibit any action based on political affiliations. Other state and municipal laws may place constraints on responses to political activity outside the workplace. Moreover, laws and regulations are constantly changing, and any modifications will continue to impact the scope of permissible employment policies.
In some extreme cases, on the other hand, it may become necessary for employers to restrict certain politically-motivated speech. Even if civil political discourse is permitted in the workplace, federal law requires employers to guard against speech or conduct that crosses the line into harassment or discrimination. Hot button issues such as immigration reform, national security, and religious freedom could make it particularly challenging for employers to distinguish between appropriate political discussion and harassing or discriminatory speech.
Generally speaking, the best practice for employers is to review current policies on workplace speech—and political speech within the company’s dress code—and ensure that any restrictions are enforced fairly and consistently. Managers should review anti-harassment and anti-discrimination policies with employees, particularly emphasizing that rhetoric used on the campaign trail may not be appropriate in a professional setting.
If your company has not adopted formal policies, or your policies need review, seek an experienced attorney’s help to navigate you through this developing environment. An attorney can verify conformity with applicable laws and assist in establishing or refreshing policies throughout your organization.
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