HR professionals generally want to give wayward employees opportunities to do better. So, situations commonly arise where an employee who consistently violates work rules and demonstrates less than professional behavior is given multiple chances to improve. Inevitably, most of the time such an employee fails to fully improve and the time comes to let the employee go. And just as inevitably, when he is terminated the employee contends that he should not have been terminated and 1) seeks unemployment compensation, 2) files an EEOC charge, and/or 3) sues for discrimination, harassment, retaliation, and whatever else he can conjure up. Suddenly all of your good intentions are thrown back in your face, leaving you wishing you would have just fired the employee without giving him all those additional chances to try to improve.

In a recent case out of New Jersey, the employer learned a very tough lesson on the pitfalls of second chances.

The number of retaliation claims filed with the EEOC has been steadily rising.  Is there more retaliation in the working world?  More likely some of the rise is due to better knowledge of various employment laws’ anti-retaliation provisions and greater enforcement of those provisions, including more lawyers bringing retaliation claims that end in sizable verdicts.

I spent a day earlier this week representing a client in an EEOC on-site investigation.  The investigator interviewed numerous company officials.  At the start of each interview, the investigator stated that the EEOC is a “neutral third-party.”

While the EEOC is supposed to be neutral, many actions and positions taken by the EEOC leave companies (and their counsel) shaking their heads over this assertion of neutrality.  While the particular investigator I dealt with this week was quite professional, personable and reasonable, most other experiences with the EEOC make it hard for her and her peers to be viewed as neutral by any employer.

For instance, just this week the EEOC tweeted the following:

Over a year ago, our colleagues at the Information Intersection blog warned that employers should think twice before using websites such as Spokeo.com, which are aggregators of personal information collected from online sources, including social media.  They warned that:

…the information available through some of these sites might be incomplete, inaccurate or dated…The reality is that most online information brokers, in their current versions, are not designed to be used for employment screening purposes.  They typically do not meet or even purport to meet the strict rules that apply to pre-employment screening databases.

A New York federal court recently dismissed a lawsuit filed by Cuttino Mobley  against the New York Knicks.  Mobley, a ten-year veteran of the NBA, claimed that the Knicks discriminated against him because he suffers from hypertrophic cardiomyopathy, a potentially-fatal condition which causes thickening of the wall of the heart.

Mobley argued that the Knicks unlawfully released him after learning about his heart condition.  According to Mobley, he could safely perform the essential functions of his job as a basketball player, and to him this was proven because he had done so for the past ten years (while he was apparently already afflicted with the heart condition ).  However, the Knicks sent Mobley to see two cardiologists, and both doctors determined that it was not safe for Mobley to play basketball with his heart condition.  To the Knicks, this meant he was not qualified to perform the essential functions of his job.

Name:  Patrick O’Donnell
Title:  VP HR & Risk, CPO
Company:  Kauffman Tire, Inc.
1. How many years have you been working in HR?  20 years.  Wow, I never really calculated that before!
2. Favorite thing about working in HR?  Impact.  While there are many other favorites like variety and fast pace, impact is probably my runaway answer.  The many facets of business and personal impact from efforts in this role are vast and gratifying.
3. Best piece of advice you ever received about a career in HR?  Get out – choose a different career!  More than one person has told me that.  The flip side of number two is that in “real world” HR/Business roles you have many challenges from all directions and much of your effort can be misunderstood and unappreciated.  It can be a difficult tightrope walk that is not for everybody.

Over the last two years, the amendments to the Americans with Disabilities Act (ADA) have been a prominent and well-discussed topic of employment law. The changes are substantial and significant, as you surely have recognized. But, the changes have also likely left many of you (and supervisors and managers you work with) concerned and confused about how to interact with disabled employees without offending or upsetting them.

Until recently, Georgia was one of the most difficult states in which to enforce a non-compete or other restrictive covenant agreement against employees who left their jobs, set up their own business or went to work for a competitor.  In 2009, the Georgia Legislature decide to change this by enacting legislation intended to clarify the law on non-compete agreements as well as other restrictive covenants (such as non-solicitation and non-disclosure provisions).

While the goal was clear, the legislation was not.  The law that was enacted (and the amendment to the Georgia Constitution that was needed to permit the new legislation) left confusion about when the new law would take effect. 

Can you terminate an employee for participating in an internal investigation at your company that is not connected with a formal EEOC proceeding?

Recently, in Townsend v. Benjamin Enterprises, Inc., the Second Circuit joined five other federal appellate courts in answering this question with a “yes.”  The Court held that participation in an internal employer investigation not connected with a formal EEOC proceeding is not protected activity under the participation clause contained in Title VII.  So, an employee participating in an internal investigation is not protected from being terminated in retaliation for such participation.  However, even if such a termination is not unlawful, it is still not a wise or productive decision for any company.

I have recently written about cases where discrimination and retaliation led to large verdicts and huge liability for employers.  These cases remind us that hostility at work, in the form of discrimination and harassment, is wrong and expensive.  An additional example from just this week shows what happens when harassment occurs and is allowed to continue, and ends up out of control.

This past Tuesday, a federal jury in New York awarded $25 million to a steel plant worker on his mind-boggling claims of racial discrimination, harassment and retaliation, as well as some tort claims for emotional distress.  That kind of verdict raises eyebrows for sure.  But what is even more startling is what the employee was subjected to by his co-workers and how his employer responded (or in most cases, failed to respond).