Employment Law Update08.12.2019
Former Utah employment attorney (and now Portland-based management coach and consultant) Jathan Janove recently wrote an interesting critique of progressive discipline (see Fire Progressive Discipline).
Jathan explained, “In my former career as an employment attorney, I never found value in the conventional approach to employee discipline, which typically involves lengthy and detailed written warnings and tiresome legalese.” Jathan proposes an approach that is different, but not all that different, from progressive discipline. He recommends use of contemporarily-documented coaching moments to help an employee understand his/her challenges and overcome them. Whether you follow Jathan’s approach, or a more traditional form of progressive discipline, the goal is the same-as a general rule (with some exceptions depending on the seriousness of the shortcoming), you should not fire an employee unless you have given him/her clear notice of performance deficiencies and a chance to fix the problem.
“Go Back” Comments Not Recommended for Workplace
The last several news cycles have been full of debate about presidential tweets and comments using the phrase “go back to where you came from” (see Was Trump’s ‘Go Back’ Tweet Malice or Ignorance? and Go Back Where You Came From: The Long Rhetorical Roots of Trump's Racist Tweets. Despite the vigorous back and forth by commentators and politicians, employers would be wise to read and heed the warning from the Equal Employment Opportunity Commission (“EEOC”) against workplace use of such phrases. Here is the full relevant EEOC statement: “Harassment Based on National Origin: Ethnic slurs and other verbal or physical conduct because of nationality are illegal if they are severe or pervasive and create an intimidating, hostile or offensive working environment, interfere with work performance, or negatively affect job opportunities. Examples of potentially unlawful conduct include insults, taunting, or ethnic epithets, such as making fun of a person's foreign accent or comments like, ‘Go back to where you came from,’ whether made by supervisors or by co-workers” (see Immigrants' Employment Rights Under Federal Anti-Discrimination Laws).
Want to Read About HR Law Risks? Just Google It!
Google recently agreed to pay $11 million to settle an age discrimination lawsuit brought by rejected job applicants (Google Settles Age Discrimination Lawsuit, Highlighting the Proliferation of Ageism in Hiring). Under the settlement, “More than 200 job seekers over the age of 40 who applied for positions at Google will receive a settlement of $11 million. The company will be forced to train employees and management about age bias, form a committee focused on age diversity—with respect to recruiting—and ensure age-related complaints are fully investigated to comply with the settlement terms.” According to one other news account, the lead plaintiff was a software engineer who despite multiple interviews was never hired. She accused the company of hiring younger workers based on “cultural fit.”
Minimum Wage Debate Rages
The House of Representatives recently passed a bill that would raise the federal minimum wage to $15/hour (currently it is set at $7.25/hour) by the year 2025, see: House passes bill to raise minimum wage to $15, a victory for liberals. The Senate, controlled by Republicans, will not approve the bill, but its passage set off lots of debate and news related to minimum wages. Business groups reacted in a predictably negative manner, see: Business groups slam House for passing $15 minimum wage bill and A $15 minimum wage would drown middle america. Progressives responded that an increase would not be as bad as feared: The Democratic case (to business) for raising the minimum wage. Democratic presidential candidate Bernie Sanders resolved demands from his campaign workers and agreed to provide a $15/hour minimum wage: Sanders reaches deal with campaign staffers’ union for $15 minimum wage.
Jones Waldo is a Utah-based legal firm that provides services to a variety of businesses, including financial institutions. Content written by employment attorneys Michael Patrick O’Brien, Mark D. Tolman, and Marci B. Rechtenbach.