Ten ways employers get themselves sued (Part Two)

How can I sue thee? Let me count the ways.

Last week, I talked about five very basic things employers do to get themselves embroiled in employment litigation. They were

  • Discrimination (not only unlawful discrimination, but also favoritism and nepotism, which are legal but are likely to lead to charges and lawsuits because of the perceived unfairness)
  • Failure to consider or make reasonable accommodations
  • Failure to audit for or address pay inequity
  • Failure to offer current harassment training or to properly handle harassment complaints
  • Medical leave mishaps.

But I promised you 10, so here are the other five examples of unhealthy practices that are likely to get you named as a defendant in a lawsuit:

No. 6: Messing with employees' pay. This is usually not deliberate. Wage and hour laws, including wage payment laws, are varied and complex. It's easy to make a mistake, even if you are trying to do the right thing. Most states have wage payment laws that require employees to be paid at certain times, and specify the deadline for making final payment to terminated employees. Under many state laws, "wages" includes not only an employee's regular pay, but also accrued and unused vacation or Paid Time Off, bonuses, and commissions. Depending on the state you are in, your employees may not necessarily "forfeit" these types of compensation unless you have a specific written policy providing for that. For a multi-state employer, state wage and hour laws can make the federal Fair Labor Standards Act (which requires you to pay the $7.25/hour minimum wage and overtime to non-exempt employees, and to comply with child labor laws), look like a walk in the park.

Naw, just kidding. Under the FLSA, you could be misclassifying your non-exempt employees as "exempt," misclassifying your employees as "independent contractors," making improper deductions that bring your non-exempt employees' pay below the minimum wage, failing to capture "hours worked" by non-exempt employees who telecommute or do business while driving to and from the workplace, and failing to compensate properly for non-exempt employees' travel and training time.

Tsk, tsk. Always smoke in moderation.

No. 7: Shooting yourself in the foot with terminated employees.
You finally managed to unload that nightmare of an employee. Can you relax now? No. Will you offer a separation agreement with a release of claims, or will you take your chances? If you do offer an agreement, and if your ex-employee is 40 or older, does the agreement comply with the Older Workers Benefit Protection Act? If not, you won't have a valid waiver of federal age discrimination claims.

And whether you offer an agreement or not, are you going to fight on unemployment, or will you stand down? My own philosophy is "Stand down unless the ex is evil -- a thief, a sexual or racial harasser, or violent." If the former employee is a poor performer or had bad attendance, you are likely to lose on the claim anyway, and the employee is less likely to sue you if you don't try to scorch the earth.

And how about references? Some states have "anti-blacklisting" statutes that limit what employers can say and/or how they can say it. Even if your state doesn't, you can be liable for defamation if you aren't very careful about what you say about an ex-employee.

It's also not unheard of for a former employee to sue an employer for discrimination or retaliation based on the employer's post-termination conduct.

Listen to the angel! (Unless it's Friday night.)

No. 8: Not staying up on legal marijuana laws.
You've had a "zero tolerance" policy for illegal drugs -- including marijuana -- for the past 30 years. If an applicant or employee tests positive, out they go, no exceptions. This doesn't violate federal law, but it may very well violate state law depending on which state you're in. Let's say you're in a state that has legalized medical marijuana and also has a state disability-rights statute. An applicant tests positive on her post-offer drug test for marijuana and presents a valid medical marijuana card, plus a doctor's note saying that she has been prescribed medical marijuana for her glaucoma. You withdraw the job offer based on your "zero-tolerance" policy. You may have violated your state disability law, assuming glaucoma would be considered a "disability" under that law.

As of now, medical marijuana is legal in more states than it is not. So even if you're in one of the few states where medical marijuana is illegal, keep up with the law and be prepared to make some big changes to the ways you've been dealing with marijuana since drug testing became common.

(As already noted, marijuana is still an illegal drug under federal law, and there is no protection under the Americans with Disabilities Act for current users of illegal drugs. Also, if you are an employer who is governed by federal law -- for example, a trucking company governed by regulations of the U.S. Department of Transportation -- you can continue to comply with your federal requirements relating to marijuana, regardless of what your state law says. But only with the employees who are actually subject to those requirements.)

No. 9: Putting your older employees out to pasture. The federal Age Discrimination in Employment Act protects applicants and employees who are 40 years old or older, and there is no upper limit. (Yes, you could theoretically be liable for firing a 90-year-old employee if the employee could show that he was fired because of his age.) Age discrimination also violates many state fair employment practices laws. And don't think it's a defense to an age discrimination claim that you have a ton of 40-year-olds even though you require everybody to retire at age 55. Discriminating based on age within the protected age group is also unlawful. 

Beware of age-based "microaggressions," which seem to be pretty common these days and can be evidence of a discriminatory motive. For example, indicating a preference for "digital natives" (people who are young enough to have spent their whole conscious lives with computers), saying "you can't teach an old dog new tricks," talking about how your company really needs "new blood," or pestering an older employee to tell you when she plans to retire.

And, finally, go back to No. 7 and read what I said about separation agreements that comply with the Older Workers Benefit Protection Act.

Dude, are you crazy? Get back on the sidewalk!

No. 10: Getting even with your "squeaky wheels."
As I noted last week, retaliation violates just about every employment law that exists. It is very human and natural to be upset when an employee complains internally, not to mention when he files a charge, or testifies against you or cooperates in a government investigation of your company. If any of these things happens and the employee is still working for you, consult with your lawyer before taking any disciplinary action against the employee or -- heaven forbid -- terminating the employee. Heck, consult with your lawyer if you doubt your ability to carry on at work as if nothing had happened. Even if the employee was mistaken, he's still protected as long as he acted in good faith.

Those are my top 10, but I'm sure I missed some. Feel free to add to my list in the comments!

Image Credits: From flickr, Creative Commons license. Cigarette butts by Rosewoman, drunk poster by Retrogasm, man jaywalking in traffic in downtown Chicago by Britt Fuller (public domain).

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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