In the business world, letting go of employees is an unhappy fact of life. But, bosses, the employment lawyers have a few words of caution for you when it comes time to hand down the pink slip.
Be advised: don’t just fire someone without covering your bases. Make absolutely certain the employee isn’t being discriminated against, or let go in retaliation for some past incident that caused bad feeling. That’s happening (or alleged) more and more these days. As a result, lawsuits are growing by the day.
Employment and labor lawyers in Rhode Island say there has been an uptick in the number of workplace lawsuits filed here alleging discrimination or retaliation by an employer. There are a few reasons for the phenomenon, the lawyers say: The collapse or contraction of so many technology companies a few years ago, coupled with a down economy more recently, is creating worker-boss friction in many industries. That friction causes many employees to believe they’re victims of unfair treatment when they are fired. And many employers have yet to catch up to recent changes in employment laws, opening themselves up to lawsuits.
Here is an update on some important regulatory and case law changes in employment law, as well as practical advice for avoiding employment problems, offered by local employment lawyers.
Whistle blower act
The first change in employment law is a recent amendment to the state’s “whistle blower act.” Both state and federal discrimination statutes prohibit an employer from retaliating against an employee because of a complaint or charge filed by an employee against the company or another employee. Recently, the state’s “whistle blower” law was widened to allow employees the same legal protections for reporting a problem to a supervisor or manager, rather than if they filed their complaint with the U.S. Department of Labor.
“I think that’s an important change in law within the past year,” said Catherine A. Sammartino, a partner at the Providence law firm Sammartino & Berg LLP, where she practices employment law and related litigation.
“Before, employees were only protected from retaliation if they went to an outside authority to report a problem. For example, this law didn’t cover them if they went to an employer’s accounting firm to report a manager’s embezzlement. Many people have an employer’s interests at heart – they don’t want to go to the Department of Labor, but they want to be protected. This expands the law to protect employees in a way that allows the employer to rectify a problem before it goes outside. I think it’s a win for both sides.”
Discrimination claims
Not surprisingly, there have been more retaliation claims filed against employers in recent years by employees who believe they were fired, demoted or passed over for a raise or promotion as a result of an earlier discrimination claim. Often, the retaliation law is used by employees to strike twice at an employer, after an initial discrimination suit fails, said Michael J. Murray, an employment lawyer who is a partner with the Providence law firm of Partridge Snow & Hahn LLP.
“Retaliation claims under discrimination statutes – in my practice, I’m seeing an upswing of those. I call it adding insult to injury. An employer is sued for discrimination, and then the employee files a second suit alleging retaliation. It drives employers crazy,” said Murray. “It grows out of the give and take of the day to day – job evaluations, raises, ‘Why this year did I only get a 2-percent raise? Clearly it was retaliation.’ In many cases the initial charge is a merit-less discrimination claim, but the situation gets so emotional that (the employer) serves up a retaliation claim on a silver platter, even though if they would have kept their cool they could have walked away with nothing,” said Murray.
There has also been a rise in discrimination cases in recent years, in which employees say they are being passed over for promotions because they are older employees or women, said Sammartino.
“What I’m seeing the most on the employee side is ‘glass ceiling’ claims, age discrimination claims. Because of the significant work force restructuring and downsizing in the past couple of years, fewer middle managers are rising to the top,” said Sammartino. “In particular, there have been more charges that women aren’t being given the same chances as men, in part because the work force is being shaken up and restructured. They’ve been in the work force for years, but they get to a certain point, a middle manager spot, and then they get stuck.”
Another recent change in employment law makes it easier for temporary workers to unionize – a fact that employers who use temp workers should be aware of, said Murray.
In August 2000, the National Labor Relations Board changed rules to make it easier for labor unions to bring temp workers into a union. Previously, temp workers were not considered a valid bargaining unit. The NLRB was concerned that without the change in statute, a significant percentage of the nation’s work force would be deprived of their full rights as workers, said Murray.
Another change in employment law that makes arbitration of employment claims mandatory in some cases works more clearly to the employer’s advantage, said Robert J. Crohan Jr., an employment lawyer who is an associate in the Providence office of Holland & Knight LLP.
The U.S. Supreme Court recently ruled that certain employment disputes and contracts would be subjected to mandatory arbitration instead of heading to a civil courtroom.
“It usually works to the employer’s advantage. In arbitration you have more quickly resolved claims, they are not public and not as costly, so (employers) can keep perhaps unsavory things out of the public’s eye,” said Crohan.
Overtime pay exemption
Employers and employees alike should also be ready for another proposed change in employment regulations expected to become statute soon, said Crohan. New proposed regulations by the Labor Department would revise the rules that employers used to exempt some employees from overtime laws. The changed regulations would make it harder for an employer to not pay overtime to certain employees, said Crohan.
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