Employment law advice you should never follow

Employers, if you're getting advice like this from your employment lawyer, do you know what time it is? Time to get a new employment lawyer.

"Never give in on unemployment."

This is terrible advice on so many levels. First, an employee who doesn't have even the relatively minimal income provided by unemployment is going to be that much more likely to sue you -- as a matter of financial survival, if nothing else. Second, if she wasn't mad before, she sure will be after you try to deprive her of her measly $200 a week.

If you let a terminated employee collect unemployment or decline to appeal when you lose at the early stage, that cannot be used against you. Not with the EEOC, not in the courts, not anywhere. On the other hand, if you keep on fighting and losing, at some point the decision against your company will become a judicially settled matter, which means you will be stuck with that finding for all time.

So, go ahead and "give in" on unemployment claims for most of your terminated employees. Save your resources for fighting the claims you will really want to fight -- the ones from thieves, harassers, and bullies.

"Treat all your employees exactly the same."

By all means avoid discrimination, favoritism and unfairness, but don't feel like you have to treat everybody like an identical cog in a machine. That will not make them happier.

Moreover, there are a few laws that actually require you to provide differential treatment (also known as "reasonable accommodation"). The Americans with Disabilities Act requires reasonable accommodation for disabilities. Title VII  requires it for religion. The Fair Labor Standards Act/Affordable Care Act requires it for lactation. And, depending on what the Supreme Court will do with Ms. Young, Title VII may require it for pregnancy, as many state laws do already.

"Safety is important, so discipline all employees who are involved in workplace accidents."

All employees? Really? Picture this: Wally is hot-rodding his forklift through your distribution center, popping wheelies and going 35 miles per hour on the straightaways. When the supervisor and co-workers yell at him to slow down, he flips them the bird. Meanwhile, Sam is innocently (and safely) walking across the production floor carrying a box full of your precious product. Wally comes zooming down the aisle and rams his forklift into Sam, causing Sam to be in traction for nine months.

You're gonna discipline Sam? Smells like workers' comp retaliation to me.

Instead, discipline employees for the safety violation that caused the accident, and do that only if you have reason to believe that their negligent, reckless, or willful behavior contributed in some way to the accident.

In other words, fire Wally, but send Sam a get-well card and have a party for him when he comes back to work.

"Establish 'zero tolerance' policies for things that are bad, like theft, sexual harassment, and workplace violence."

Wow, this sounds so reasonable. But zero tolerance is always a bad idea.

Yeah, but Robin, we're only applying it to the really bad stuff. Surely you aren't in favor of theft and sexual harassment!

Of course not. But picture this: Mary is talking at the water cooler about her kid's lousy grades in chemistry class. In front of several witnesses Mary says, "So I tell him, I says, if you don't get those grades up, your dad and I'll kill ya!" Everyone laughs except Myrtle, who never liked Mary anyway and who reports to you that Mary has just threatened to kill her son.

Would you fire Mary? After all, "zero tolerance" means "zero tolerance," right? Too bad for you, Mary.

That's the trouble with "zero tolerance." If you really mean what you say, you get all kinds of harsh and unfair results. On the other hand, if you make too many exceptions, you might undermine your "strict" policy and also be accused of discriminatory application.

Zero tolerance for "zero tolerance" policies!

It's always better to have a realistic policy that you can live with.

"Never look back on an employment decision once it's been made."

You've already made the decision to fire Elijah for sleeping on the job. You call him in to give him the news, and he hands you a note from his doctor saying, "Elijah is under my care for sleep apnea. The sleep deprivation caused by this condition may cause him to doze off while at work. He needs to be out of work while he adjusts to his CPAP machine and hopefully loses some weight. Should be able to return to full duty in six weeks. Next apptmt 1/31/15. /s/Dr. Smith."

Full speed ahead with the termination, or do you reverse course?

In this type of situation, the prudent thing to do is to at least consider reversing course. Before making a final decision, find out how long Elijah has known he had sleep apnea and why he didn't disclose it a long time ago. In any event, now you're on notice that Elijah has a condition that might be covered under the ADA. Allowing him the time off might be a form of reasonable accommodation. And you might still be able to discipline him for sleeping on the job, since he should have told you he was having a medical problem before he got into trouble at work.

PS - This kind of thing happens a lot with absenteeism that turns out to be covered by the Family and Medical Leave Act, too.

 (Hat tip to Kelsey Manning whose Business Insider article "Career Advice You Should Never Follow" inspired the theme of this post.)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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