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Legal Clinic

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Forcing a Resignation
Micromanaging an employee and making working conditions intolerable in the hope that the worker will resign leave a company open to litigation based on "constructive discharge." It's up to HR leaders to educate managers on how to avoid such potential claims.
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Best Performance-Evaluation Practices
The Legal Clinic offers some best practices for preparing for -- and conducting -- performance evaluations. Effective evaluations often result in improved employee performance, but, if not, the accompanying documentation will be useful should termination be necessary.
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Best Practices in Reference Checking
While it is conventional wisdom that only name, title and dates of employment should be given in reference checks, that is not the case. Most states offer employers a "qualified privilege" to provide references regardless of how negative they may be -- but that won't protect an employer who provides misleading or false information about a former employee.
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Best Practices for Diversity
Before initiating diversity programs, HR leaders need to set specific goals -- and avoid legal pitfalls -- when enhancing development programs for current employees, expanding recruiting and hiring, and rethinking promotion and other company policies.
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Put it in Writing
Companies that do not have employee handbooks are opening their organizations up to potential liability. In creating such a handbook, HR leaders should make sure to include policies related to the employment relationship, compensation, employee benefits and employee conduct.
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Closed-Circuit Cameras' Chilling Effect
Is a manager overreaching by using the company's closed-circuit cameras to monitor and log which employees are complaining about work conditions?
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Post-Lawsuit Procedures
Employees who sue their companies are allowed to review a variety of documents or records as part of the pre-trial proceedings. While rules vary in different jurisdictions, the federal rules are often a good indicator of what materials need to be preserved and provided to the opposing party.
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Defiant and Disrespectful
Insubordinate behavior, such as refusing to carry out a direct order, is grounds for termination. But before any action is taken, HR leaders should ensure that company policies explain what constitutes insubordination and make sure incidents are well-documented.
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Stalling Tactics
Do union representatives -- who repeatedly decline or fail to attend meetings to represent an employee -- waive the union's representation rights? What regulations apply in such an ongoing situation?
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Discipline without Representation?
The request of an employee to have representation during an investigatory or disciplinary meeting with an employer should be agreed-to unless there are "extenuating circumstances" -- but not all such requests are valid and there are other cloudy Weingarten-right issues as well.
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Navigating California's Labor Laws
A decision to allow an employee to take vacation he or she has not yet earned could come back to haunt an employer when it tries to recoup the cost of those days from the worker's salary.
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Accommodating Breast-Feeding
In addition to comply with federal laws on providing private areas for female employees to express breast milk, employers should also take note of some state-specific requirements.
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Terminating Poor Performers
A poor performer's recent complaints about potential bias should not prevent a company from terminating his employment as long as there are legitimate, nondiscriminatory reasons for the action. But it's even better if the organization has written documentation that shows the adverse action was agreed to prior to the complaints being made.
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Attorneys in Attendance
Employees have no explicit right to bring their own attorneys to an internal-investigation interview, but companies should not reject such requests out-of-hand. And in some cases, having an employee's attorney present could be helpful to the company.
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Stepping Out
Are employees who walk off the job entitled to accrued vacation time? The answer mostly depends on which state the company's facility is located in, according to this installment of the Legal Clinic.
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Paycheck Pick-up
Can an organization require employees to pick up their paychecks only at specific times and dates? Can the company require employees to sign up for direct deposit? The Legal Clinic looks at which laws govern such actions.
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Storing Employee Property
An organization does not have an obligation to provide employees with an area to store personal property and may even forbid employees from bringing personal property onto the company premises. However, if an area is provided, company handbooks should spell out the organization's refusal to assume liability.
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Improving Employee Performance
Even in at-will organizations, employers may have an implied responsibility that hampers their ability to terminate a worker without cause. For performance issues, HR leaders should ensure that employees are promptly informed of deficiencies so they are not blindsided by the news, which offers a greater chance of a lawsuit. Documentation is also crucial.
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