When to Call an HR Expert
There are times when you should call an HR expert because making the wrong move could be much more costly. When managers are not sufficiently versed in state and federal employment laws that is dangerous to act without sound advice when making decisions if you're not familiar with the requirements of laws such as:
• Title VII of the Civil Rights Act of 1964, as amended
• The Age Discrimination in Employment Act
• The Family and Medical Leave Act
• The Equal Pay Act
• The Americans with Disabilities Act
• State laws against discrimination, pregnancy laws, and others
When the employee is in a protected class
If the employee against whom action is being taken is in a protected class, it is unwise to act without a call to your HR advisor. Make sure you understand protected classes such as:
• Race
• Color
• Religion/religious creed
• Sex
• National origin
• Age (40 and over)
• Physical or mental disabilities
• Pregnancy
• Veteran's status
• Genetics
• Participation in discrimination complaint-related activities
In addition, become familiar with the protected categories that are covered by state and local laws and ordinances. Counties and localities offer protection to individuals of any age and cover sexual orientation, gender identity, marital status, family status, military service, and even height and weight. These laws change regularly. When the employee has engaged in protected activity
Protected activities are those that are recognized under state and federal law. For example:
• A recently lodged sexual or other form of unlawful harassment complaint
• Filing a worker's compensation claim
• Being out of work on a family and medical leave
• Recently being on a leave to serve on a jury
• Raising whistleblower concerns
• Taking a maternity or paternity leave
• Asking for a disability accommodation
• Complaining of or filing charges of alleged unlawful activities
Any action against a person in this protected status may be easily painted as discrimination or retaliation because of the timing. Check with your advisor to be sure that your reasons for acting are sound, consistent with past practice, and well documented.
When public policy issues may be present
Public policy implications should also be considered. An employer should assess whether the employee is being terminated for engaging in an act that public policy would encourage or if the employee is being terminated for refusing to do an act that public policy would condemn.
For example, an employee who exposes an illegal activity or who refuses to "cook the books" for an employer might fall into this category. An employer should examine whether any public policy issues are in play before making the termination decision.
When an employee is close to vesting or gaining a benefit
Also take care when an employee targeted for termination is close to vesting in a significant employee benefit, or if a termination or layoff would deprive an employee of compensation such as vesting of stock options or earning of commissions.
When the employee refused other jobs or relocated
The employer should know if an employee targeted for layoff forewent other jobs or relocated to the company in reliance upon assurances made during the recruitment process. Legal claims may arise in these situations.
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