Managing employees legally

Date Published: 
August, 2005
Original Author: 
Michael S. Pepperman, Esq.
Obermayer Rebmann Maxwell & Hippel LLP
Original Publication: 
ICFM Magazine, August-September 2005

Did you know that workers over 40 now have more standing to sue for discrimination?
Attorney Michael Pepperman briefs you on that development and more.

The Supreme Court recently handed down a very important decision regarding age discrimination that could affect your workplace. This ruling means that people over the age of 40 can sue under the Age Discrimination in Employment Act based on a new theory, that of "disparate impact."

In the past, if there was some statistical evidence of discrimination against employees over the age of 40, there really wasn't a whole lot the employees could do about it.

Now, the law of the land has changed, and you're going to have to be careful if you do something that will have a disparate effect on employees over the age of 40.

In today's business climate, that means that those of you who are considering changing your health insurance or pension benefits because of the high costs associated with them must be careful.

If you are considering such changes, I recommend that you consult with legal counsel before making any significant changes.

The case was Smith vs. the City of Jackson, Mississippi. The city had decided to change the pay rates to try to compete with the starting salaries of surrounding communities. They did this by giving people with five or fewer years of seniority 10 percent pay hikes; employees with more than five years of seniority were given a lower percentage.

Most of the employees with five or fewer years' seniority were under the age of 40, and a group of workers 40 or older sued the city, saying it was unfair that they got a lower percentage raise than younger workers.

The disparate impact theory has been around for a long time for Title VII, the statute that protects employees from discrimination on the basis of race, creed, color, national origin and sex.

It's interesting that the Supreme Court ruled in favor of the city, saying city officials had a legitimate business reason for the action they took—they had to compete with surrounding communities.

But in its written decision, the court laid out the disparate impact theory as a basis for lawsuits under age discrimination laws.

Your rights when there's talk of a union
I've gotten a number of calls over the years from ICFA members that go something like this: "Mike, there's a guy outside my gate handing out union cards to my employees. Apparently there's a meeting next week where the employees are going to get together with him, and I don't know what to do. I can't talk to the employees about whether or not they should join a union, I can't tell them what I think."

But you can. You absolutely can and should tell your employees if you feel unionizing isn't the right thing for them to do. Don't lie to them; don't make promises. Simply express your opinion.

If the guy handing out union cards comes on your property, you can ask him to leave, and if he doesn't, you can call the police.

Unless, of course, he's visiting a grave site, which is exactly what the guy in one case claimed he was doing. But when he was asked whose grave he was visiting, he couldn't answer, so the cemetery asked him to leave.

In one case, a supervisor was helping hand out the union cards. That is not protected activity. If employees want to give out union cards on their own time (not during work hours), the law protects them, but supervisory employees are not protected.

If you have a supervisor helping organize a union and you don't want a union, you can terminate that supervisor if you want to and he or she will have no recourse under federal labor laws. Or you can simply sit down with the person and tell him to stop.

Of course, you can always take the position that a union is OK, and if your employees want to organize one, that's fine with you, but most employers don't take that view, and I don't think you want your supervisors showing support for a union.

There's no right to a jerk-free workplace
I dealt with an interesting case one time involving a mean—some would say evil—salesperson. This person was a superstar of sales, the top producer, but had problems dealing with fellow employees.

Reading the complaints—a couple of people had actually put them in writing—could make your hair stand on end. People said this salesperson would yell at them, throw things at them and generally harass them.

Management was dedicated to having a harassment free workplace, of course, so they asked me what they should do. Though this salesperson was a star producer, even stars should not be allowed to violate laws protecting the workplace.

However, there is no federal or state law I know of that protects employees from a boss who's simply a jerk. There seems to be a common misconception that you can be sued over a supervisor who's a jerk, but you can't.

However, in a case where someone is throwing things at or pushing people, there are other issues. If someone throws a stapler at your head and hits you, you're got a battery claim.

In this case, it was clear there was a problem; you don't want to have a supervisor harassing employees physically or otherwise.

Even if it's not legal "harassment," it's certainly not good for morale. So the supervisor was counseled about stopping the behavior, and he did.

No paperwork, no termination
Another typical call involves salespeople who clearly, in looking at the sales quotas and sales produced, are not productive. But maybe the person is in a protected category (race, national origin, etc.), so the manager calls me for advice. Sometimes our conversation gees like this:

"What do you want to do?"
"I want to fire him."
"Have you ever sat down with him and talked to him about his performance?"
"No. Well, he knows. I've said things." "But have you ever had a formal meeting with him?"
"Is there anything in writing you've given him saying, 'Your performance is poor; you must do this to improve?" "No."
"And you want to terminate him?"
"If you do, you are going to bring down a world of hurt on yourself."

My advice in these cases: Sit down with the employee, review the sales quotas, discuss expectations and give him a certain period of time to improve.

Put everything in writing, including the notification that if he fails to improve, he could be facing disciplinary action, up to and including termination.

If you follow that procedure, you should not have to worry.