The Toxic Workplace

Photo by Chris LeBoutillier on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

The toxic workplace. Most of us have had experience with a co-worker or supervisor whose bad behavior makes the workplace a toxic place. Even if this toxic behavior does not rise to the level of being legally actionable, it certainly has a negative impact on employee morale and increases turnover. In this competitive job market, can you afford the toxic behavior of the employee who is driving others away?

Have a listen to our lively discussion of the Toxic Workplace:

https://www.spreaker.com/user/10949568/cyatoxicmaster

What Does Your Social Media Presence Say About Your Company?

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By Kathleen J. Jennings (kjj@wimlaw.com)

I was looking around a popular business oriented social media site, and the content that some companies posted caught my trained employment lawyer’s eye. One, in particular, posted a lot of photos of employees who were all uniformly young (in their 30s and younger), energetic, and white.

I see a couple of issues here. First, what kind of message is this company sending to prospective employees? The message certainly appears to be that they only hire able-bodied young white employees. In this highly competitive employment market especially, it is not in a company’s best interest to discourage entire groups of people from even applying for available jobs.

Second, these social media posts could be used as evidence in a discrimination case. For example, if an African American employee files a lawsuit for employment discrimination, I could see the plaintiff’s lawyer offering the social media posts as evidence that the company does not value diversity, or that it does not value persons in protected classes. Because if the company valued those folks, it would include them in its public presence, right?

Think of your company’s social media presence as evidence that can be used in your favor or against you. That “youthful vibe” could be used as evidence of age discrimination. That “tough, macho vibe” could be used as evidence of gender discrimination. In other words, if you are not careful, your vibe could be the thing that attracts a lawsuit against your company.

The takeaway: Inclusivity is the key to attracting and retaining the best talent in this job market. May sure that your social media presence isn’t repelling entire classes of applicants or attracting lawsuits.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Who’s listening?

By Kathleen J. Jennings

Many employers monitor employee email and electronic devices. What is the right way to do it? And how do employees feel about all that monitoring? Check out the Cover Your Assets Labor and Employment Podcast for a lively discussion. You never know who might be listening!

https://www.spreaker.com/user/10949568/cyamonitor

Talking About Mental Health Awareness Month

By Kathleen J. Jennings (kjj@wimlaw.com)

May is “Mental Health Awareness Month,” so on our most recent Podcast, Thom Jennings and I discuss mental health issues in the workplace. Mental health conditions may be protected as disabilities under the Americans With Disabilities Act, so it is important not to ignore employee requests for accommodations for both physical and mental health conditions.

Have a listen! And if you like it, please share with your friends and colleagues.

Link to Podcast: https://www.spreaker.com/user/10949568/cyamentalhealth

Interview Questions-the Good, the Bad, the Ugly

This week on the Cover Your Assets Podcast, my nephew, Thom Jennings (affectionately known as Thom Jr.), joins me and my brother (also Thom Jennings) to talk about interview questions. Thom Jr. is an executive recruiter who has some interesting insights into the interview process. Have a listen!

https://podcasts.apple.com/us/podcast/cover-your-assets-the-labor-and-employment-law-podcast/id1610059515?i=1000559791096

Free Webinar: Urban Myths of the Fair Labor Standards Act – Wage Hour Law

When: Friday, May 6th, 2022, 12:00 PM to 12:45 PM

The Fair Labor Standards Act was passed in 1938, eighty-four years ago, and yet many employers continue to pay in violation of the FLSA based on urban myths. We will address those urban myths, why they are wrong, and the right way to handle that myth.

Such urban myths are: “I pay all of my employees’ salaries so I do not have to pay overtime.” “All of my workers are independent contractors so I do not have to worry about the Wage-Hour Law.”

We will also address some of the more difficult issues such as paying tipped employees and remote employees.
To Register:
https://wimlaw.com/events/webinars/fair-labor-standards-wage-hour-law

They Say It’s Your Birthday!

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By Kathleen J. Jennings (kjj@wimlaw.com)

This week, on the Cover Your Assets Labor and Employment Law Podcast, Thom and I discuss the recent case involving an employee who successfully sued his employer because the employer held a birthday party in his honor. We go beyond the headlines and discuss how this litigation might have been avoided. Have a listen!

Dealing with An Employee’s Request for Leave As A Reasonable Accommodation

Photo by Vlada Karpovich on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

[Have you listened to the Cover Your Assets Labor and Employment Podcast? Listen to it here!]

The Americans With Disabilities Act (ADA) prohibits discrimination against persons with disabilities. What sets it apart from other anti-discrimination statutes is the requirement that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. [Title VII does require some reasonable accommodations for persons with closely held religious beliefs, but the standard is slightly different.]

So what is a “reasonable accommodation?” It is the stuff of much litigation, for starters.

The EEOC tells us that a reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Basically, the determination of what is a reasonable accommodation must be made on a case-by-case basis through what is known as the interactive process–a conversation between the employer and employee about what accommodation(s) would help the employee perform the job and the impact on the employer if it provided such accommodations. And I shouldn’t have to tell you–document every step of that process.

It is important to note that an employer doesn’t have to provide an accommodation if doing so would cause “undue hardship” to the employer. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

A recent example of a requested accommodation that was simply not reasonable comes to us from Utah. In Anderson v. Zions Bancorporation N.A., No. 2:19-cv-00771, 2022 BL 66589, 2022 Us Dist Lexis 35716 (D. Utah Feb. 28, 2022), the plaintiff alleged that his former employer violated the ADA by denying his request for a reasonable accommodation, retaliating against him, and wrongfully terminating him after he requested a leave of absence due to depression and anxiety. The plaintiff requested almost one year of continuous leave as an accommodation for his mental health issues, and the employer found such a lengthy amount of leave to be an undue hardship. The court agreed.

We have seen other cases where employees seek leave without any end point, and such indeterminate leave is also considered to be an undue hardship for an employer.

If an employee requests leave as a reasonable accommodation, it is important for the employer to nail down exactly when the employee expects to come back to work. (As an aside, you should also determine if FMLA applies). If the employee doesn’t tell you, ask! Give them a deadline to provide the information. Then determine if the amount of leave is reasonable or presents an undue hardship. How long can you keep this job open? How long can other employees cover for this person?

If the employee does not come back on the anticipated date, the employer should follow up and determine if the employee is ever going to come back to work. If they don’t respond, they have essentially abandoned the job.

And speaking of FMLA, if an employee does not come back to work at the expiration of FMLA leave, it is generally not a good idea to terminate them immediately. Because if the reason that the employee needs the leave is because they have a disability, then the the ADA will apply and you need to commence the interactive process to determine if they need a reasonable accommodation, such as more unpaid leave.

This can get pretty complicated, so it is best to talk these issues over with trusted employment counsel.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Check Out The Cover Your Assets Labor and Employment Podcast

Photo by Dmitry Demidov on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

With the assistance of my very talented brother, Thom Jennings (and his buttery smooth voice), I have launched the Cover Your Assets Labor and Employment Podcast. Thom and I talk about important labor and employment issues that impact employers. Check it out and let us know what you think: https://www.spreaker.com/show/cover-your-assets-the-podcast