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Ask the HR Expert: Employment law

Posted by Jesse Nunes  January 12, 2009 10:09 AM

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Q: We have a supervisor that has not been performing well. She has been spoken with on numerous occasions about her lack of performance and her attitude. We want to demote her from supervisor but now she is pregnant and we are worried about this seeming to be because she is pregnant. Is it okay to demote this person?

A: I am assuming the employee has no contractual entitlement to a supervisory position. Under such circumstances, whether the demotion would be okay depends on your motivation for it and how well you can prove that motivation.

In general, you can demote (or even discharge) an at will employee at any time and for any reason, as long as the motivation is not unlawful. Here, your concern is that the employee might argue that the motivation was unlawful because it was based on her gender or pregnancy. You need to be able to prove otherwise. Factors that a court might consider to assess your motivation could include these:

  • Is there an employment agreement with this supervisor, and if so, what does it say?

  • Are there oral or written policies (e.g., a poorly worded "progressive discipline" policy) that limit the employer's ability to demote?

  • Is there precedent for how the employer previously handled supervisors with this degree of poor performance and/or poor attitude?

  • What is the exact nature of this particular employee's "poor performance," how egregious was it, how long had it been apparent to the employer, and what had the employer done to document and/or correct it previously? (That someone has "spoken with" the employee is not necessarily an indication by itself that there has any real attempt to correct the problem.)

  • Has this supervisor's "poor attitude" manifested itself other than in the previously-mentioned "poor performance?" If so, how? (And again, what has the employer you done previously to document and address this "poor attitude"?)

David Henderson

Q: Is there a set amount of hours a salaried employee can work or is the time unlimited? Also, can you provide any resources or websites that would best explain the difference between exempt and non-exempt employees.

A: Federal law generally does not limit the number of hours per day or per week that any properly-compensated employee aged 16 and older can work.

Your question specifically asked about a salaried employee. Not all salaried employees are exempt from the wage and hour laws. Unless the salaried employee is exempt from these laws, he generally cannot be required to work more than 40 hours per week without being compensated at a rate of one and a half times his regular rate.

The United States Department of Labor's website is one of hundreds that discuss the distinctions between exempt and non-exempt employees. A good starting place on that website is here:

The key points to remember are these: exemptions from the wage and hour laws are creatures of statute, the types of exemptions vary between federal and state law, and the penalties for misclassifying a position are severe. Expert guidance based on the particular facts of your case is highly recommended.

David Henderson

Q: I am frustrated by the vague terminology in rules governing an employer's workplace obligations toward a handicapped or disabled employee. Two of the confusing terms are "reasonable accommodation" and "undue hardship." How can the employer ever determine when a particular "accommodation" requested by an employee is "reasonable"? Likewise, how can the employer determine when a particular "accommodation" would impose a "hardship" on the employer that is "undue"?

A: Your questions go the heart of why workplace disability issues are difficult. As you point out, key rules are broadly worded, and the necessary determinations seem subjective. The result is that reasonable persons can disagree about whether particular decisiona by the employer are properly grounded in reason.

But there also are bright spots for the employer in this part of the law. Courts generally give substantial weight to the employer's good-faith views about a job's essential requirements, whether a particular "accommodation" requested by an employee would be "reasonable," and whether a particular "hardship" on the employer would be "undue." As one court recently explained, judicial oversight "is not intended to second guess the employer or to require the employer to lower company standards."

Also, an employer can maximize the chances that a court will respect its subjective determinations by good communications practices. The employer should actively involve the employee in an "interactive dialogue" about the workplace determination to be made - e.g., whether an "accommodation" would be "reasonable" or a "hardship" would be "undue." In these areas, the courts sometimes look at procedure as much as they look at substantive result. A court might not know exactly the determination that is best, or it might have its own questions about what is feasible in the workplace. In such circumstances, the court is more likely to uphold the employer's position if it sees that the employer used a decision-making process that included the employee's input.

David Henderson

Q. We are a small company and we only employ about 10 people. We are creating an Employee Manual and are now at the point of discussing the Termination Process. I am especially interested in keeping the procedure legal and fair for all parties involved and have to be able to put it in the new employee manual so that it is understood by everyone. I am the office manager, and have no Human Resources training. I want to make sure what I put in the handbook is legal. Can you refer me to any online sites, resources or offer any guidelines when it comes to the termination section?

A. You are wise to think carefully about the content and distribution of any termination policy, as this is one of the most critical parts of any employee handbook. More than any other handbook policy, a termination policy often comes under scrutiny in wrongful termination lawsuits. The employer's failure to follow its own termination policy and procedures, for example, may evidence discrimination or other unlawful conduct. Many employers prefer a progressive discipline policy, which provides steps of discipline leading to termination. Most commonly, these steps include verbal warnings, written warnings, suspension, and termination.

Progressive discipline policies are designed to provide employees with notice of poor performance or misconduct, warn them of the consequences of failing to improve, and give employees the opportunity to correct their conduct. As a best practice, however, a progressive discipline policy should contain a prominent statement that employment is "at will" and should reserve the employer's flexibility to "skip" steps and even move directly to termination when serious misconduct or other significant violations are involved. A good policy should also set employees' expectations regarding the types of actions which could lead to discipline.

Although no list of infractions can ever be exhaustive, it is important to list serious violations and as well as any conduct that could lead to employer liability from employees or third parties, such as insubordination, workplace threats or violence, harassment of other employees, theft and falsification of company records. Also, make sure your termination policy is consistent with federal, state and local laws applicable in each location of your company.

Employee handbooks do help by notifying employees of their rights and responsibilities as well as by offering information about human resources practices and employment benefits. Nonetheless, employers should be mindful of the potential pitfalls associated with handbooks. Courts in several states have held employers to promises or agreements implied in carelessly worded or poorly designed handbooks. To minimize the possibility of creating a contract, and the potential for a breach of contract claim, each handbook should include a prominently placed disclaimer stating that the handbook is not a contract and that the policies are subject to change at the employer's sole discretion. However, even such a disclaimer may not shield an employer from a breach of contract claim. Although online HR resources are useful and may provide helpful suggestions, having an attorney review your handbook is the best practice.

Krista Pratt

Q. When a candidate comes into our office to fill out an application we collect copies of the candidate's photo ID along with a signed CORI form. Is this an illegal practice in violation of discrimination laws since the Hiring Manager has access to their photo ID when they are reviewing their application?

A. To avoid claims of hiring discrimination, employers should ensure that all questions to and information obtained from job applicants are strictly job-related. Absent unusual circumstances, an employer generally does not have a business need to review an applicant's photo identification during the application process.

Collecting an applicant's identification may create an inference of discrimination based on the applicant's appearance, even if an employer is not collecting the information for such an unlawful purpose. Although identification is required to verify eligibility to work, that information should not be collected until after the job offer has been extended and accepted.

Many employers, as part of the hiring process, conduct lawful background checks or obtain criminal history reports of applicants. This process may require the employer to verify the applicant's identity. However, such checks should be the last step in the hiring process. If necessary, the employer should extend the job offer conditioned upon a satisfactory background check or criminal history report, and should collect the necessary photo identification after the conditional offer. After hiring the successful applicant, the employer should retain the CORI information and background check results in a separate file.

Finally, an additional concern about collecting applicant information arises from the recently enacted Data Security Regulations, which apply to any businesses that own, license, store or maintain personal information about a Massachusetts resident. (The revised deadline for compliance with these regulations is May 1, 2009.)

These regulations require that covered businesses adopt a data privacy policy limiting the collection and retention of personal information to that which is necessary to accomplish the legitimate purpose for which the information is sought. Consistent with the regulations, employers should not unnecessarily collect and retain applicants' photo identification. These regulations provide an additional reason to use care in obtaining and retaining applicant information.

Krista Pratt

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About NEHRA - The Voice of HR Featuring articles and resources for Human Resources / HR professional and hiring managers from the Northeast Human Resources Association (NEHRA).

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