March 18, 2005
Author: , Esq.
Did you ever wonder whether or not you terminated an employee illegally? Have you ever determined whether your employee handbook has all the mandated employment policies? Have you ever been concerned with how to effectively discipline an employee? These issues and others like them confront HR professionals and business owners on a daily basis. As an employer you must have a working understanding of numerous labor and employment areas, as ignorance is never going to be a defense.
Many employers realize New York is an at-will employment state, but they are under the mistaken belief that this means an employee can be terminated for any reason. In fact, an employer may terminate an employee for a good or bad reason, or no reason at all, so long as the termination does not violate federal, state or local laws, or the common law. Employers must have a working knowledge of Title VII, the Americans With Disabilities Act, the New York State Human Rights Law, Family and Medical Leave Act, and a host of other laws. Without this knowledge an employer could easily find itself on the other side of a multi-million dollar lawsuit.
Employers must also have a working understanding of how to document misconduct and performance issues, performance evaluations, last chance agreements, termination agreements and how to handle a request for a reasonable accommodation. How would one of your supervisors handle a request from a biological male requesting a reasonable accommodation to the company's dress code policy? The employee states "I have Gender Identity Disorder and I want to come to work dressed as a female." Let's say the employee is your top salesperson and interacts face-to-face with your customers on a daily basis. What would your supervisor do? How would the company handle the request? At least one court has recognized Gender Identity Disorder as a disability under the New York State Human Rights Law, which must be accommodated. Are your managers trained to handle this request?
What do you do if an employee comes to you complaining about sexual harassment? Do you have a written policy prohibiting sexual harassment? Is your policy any good? Do you train your employees and managers on harassment in the workplace? Do you have internal personnel who are trained in investigating claims of harassment? Do you know how to investigate harassment claims?
Finally, let's say you have terminated an employee and want to offer him severance in the hope he won't be mad enough to sue your company. Good luck! An employer needs to properly protect itself when it comes to terminating employees. If you want to offer an employee severance that is fine, but you have to do it correctly. For instance, if you are paying an employee severance I would hope the employer wants some assurance (please note there is no such thing as a guarantee) that the employee won't sue the employer. Accordingly, the employee would need to execute a release. However, if the employee is 40 or older the employer must comply with the release requirements for individuals as set forth in the Age Discrimination In Employment Act? Does your company know what those requirements are? Does the Age Discrimination In Employment Act even apply to your company? You company needs to know these answers.
Please remember ignorance is never a defense, and it can and will be used against you by the plaintiff's attorney!