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American Bar Association - Defending Liberty, Pursuing Justice


Vol. 15, No. 2




Employment Policies and Workplace Responsibility

As an attorney who represents employees in discrimination, harassment, wage and hour, and other employment cases, I see firsthand what happens when a company has deficient employment policies or fails to adhere to the policies it does have. For many businesses, striking the balance between optimizing worker productivity and ensuring worker satisfaction is not always easy. Here are some tips for employers on essential employment policies.

Equal Opportunity Employer

Every business should have a policy that clearly articulates that the company is an equal opportunity employer and will not tolerate discrimination and harassment. It is critical that employees are directed as to how to submit any concerns or complaints if they are the target of such unlawful conduct. Also, the company must set up a mechanism to respond to such issues promptly and fairly. If an employee violates these policies, the company must proceed with appropriate corrective action, up to and including termination. 

Some companies resist instituting such policies believing it is superfluous to state that they will follow the law. This is a serious mistake since antidiscrimination policies can protect a company from liability. Under federal law, an employee must utilize the complaint procedure if subjected to coworker and supervisor harassment. No complaint procedure means no affirmative defense.
Further, it can be helpful to have an open-door policy for employees so concerns can be addressed in a more relaxed atmosphere. Responding to such complaints in a meaningful manner is key to avoiding further problems. However, even the most well-intentioned employer can be subject to valid complaints. In this event, policies that include a formal procedure for investigating and fairly adjudicating complaints are key for successfully navigating these often turbulent waters.

Knowledge Is Power

In order to ensure the smooth running of its day-to-day operations, a company should specify employee benefits, such as pay schedules, overtime, health insurance, vacation, and holiday policies. Specifying how the company will handle various leave requests such as sick, family, or pregnancy leave is also critical. Establishing these protocols in advance helps to smooth out any possible tensions in the workplace.

While employees are entitled to various leaves, once again, a balance must be struck to establish fairness. A company should set forth rules such as attendance policies informing employees what types of conduct can result in discipline, including termination.

What to Avoid

An employer should never try to protect itself by asking an employee to waive any rights he or she has under the law. Such policies may demonstrate a discriminatory mind-set and are often void as against public policy. While mandatory arbitration clauses are an option to avoid being sued, such clauses can often be counterproductive; an employee may choose to sue anyway and the court decides whether the arbitration clause is viable. Under the Federal Arbitration Act, the validity of an arbitration clause is a question for a jury.  Also, private judges have expensive hourly rates and there is a limited right to appeal an adverse arbitration ruling.

In sum, establishing and adhering to fair employment practices is the best solution for businesses to avoid workplace liability.

V. James DeSimone is a trial lawyer specializing in both individual and class action employment law cases. He is a founding partner of Schonbrun DeSimone Seplow Harris & Hoffman, LLP, a civil rights firm with offices in Venice and Pasadena. Visit his Web site at www.losangelesemploymentlawyer.com.

© Copyright 2009, American Bar Association.