Did you know that every business day nearly 1,500 people file lawsuits or administrative claims against their current or past employer? Their allegations include wrongful termination, sexual harassment, discrimination and numerous other theories and issues. Do you AND YOUR MANAGERS have the training needed to cope with today's employment-law entanglements. Have you developed the preventive policies and practices needed to avoid costly problems? Following is a small sample of the many problems faced by dealers on a daily basis. What would be your answers?
Questions
Question 1: James, a technician, returns from his lunch break obviously intoxicated. You suspect that he has been hanging out at the local bar during lunch and you have wanted to terminate him for some time. However, whenever you have had a discipline situation with him, it has been contentious and you recognize the importance of carefully documenting this incident. Should you state that "James was drunk" in your written report? ___ YES ____ NO
Question 2: Sue, your Controller, has heard rumors that employees may be sending inappropriate messages through the dealership's e-mail system. Should you implement a policy regarding the use of the dealership's computer system, and put employees on notice that e-mail messages may be stored and reviewed by management? ___ YES ____ NO
Question 3: Bill, a salesperson, brings a gun to work in violation of your clear rule against having firearms at work as stated in the dealership's employee handbook. When he is terminated, he explains that he has been seeing a psychiatrist and he is sure that his depression was responsible for him not remembering that he was carrying the weapon. Has the Americans with Disabilities Act (ADA) been violated? ___ YES ____ NO
Question 4: Your Service Manager believes that Alice, a Service Advisor, has taken a wallet that was left in a customer vehicle. You and the Service Manager take Alice into the conference room and spend the next two hours accusing her of theft. You assert that you have witnesses and demand that Alice sign a written confession. Alice later sues the dealership for false imprisonment. Could she win? ___ YES ____ NO
Answers
On average, dealers can expect to spend between $50,000 and $100,000 if they become involved in many of today's complicated employment-law litigation matters - and that does not include damage awards! Are you prepared? Find out by checking the correct answers to these questions.
Question 1: NO - The better statement would be "James reeked of alcohol and couldn't walk straight." In documenting employee performance or misconduct, it is important NOT to state conclusions; instead, written reports should focus on objective and observable facts. Statements such as "James was drunk," "James was plastered" or "James was obviously intoxicated" are all conclusions, not statements of fact. Upon cross-examination in a lawsuit following James' termination, a skillful lawyer likely would challenge your educational background, experience and ability to draw these conclusions. Furthermore, a written report should serve to remind you of the facts a year or two later when a case might come to trial. If your report states only that "James was drunk," you might be unable to remember exactly what behavior on James' part led you to believe he was intoxicated.
Question 2: YES - Employers must take steps to train employees regarding the correct and appropriate use of new technologies, from both a human resources and a legal perspective. As to e-mail, you should implement detailed policies stating, among other things: 1) the electronic system and all information contained or transmitted through it are company property; 2) the company retains the absolute right to access the system and all information within it (overriding passwords if necessary); 3) no employee has a reasonable expectation of privacy as to any message transmitted or stored; and 4) the company will not tolerate abusive, offensive, discriminatory or harassing messages being transmitted.
Question 3: NO - Provided you uniformly enforce the safety-related rule throughout the dealership, a violation of the ADA requires discrimination against a qualified employee due to his or her disability. If the employer uniformly enforces a reasonable safety rule (such as not bringing a gun on the employer's property), there should be no evidence present of discrimination based on the employee's alleged disability,-because disabled and non-disabled employees are treated in exactly the same manner.
Question 4: YES - Likely so if she can establish that her detention constituted direct restraint for a period of time against her will. False imprisonment is defined as "the unlawful violation of the personal liberty of another." It requires direct restraint for some appreciable length of time, however short, compelling a person to stay or go somewhere against his or her will. Actual physical force or restraint is not required. Accordingly, employers need to carefully avoid circumstances that deprive, or appear to deprive, an employee of freedom to move or leave. Except in cases of theft where there is reasonable belief the stolen item is on the employee's person, employers should not detain or threaten to detain employees. Even in cases of theft, employers must be extremely sensitive to employee rights and should rely on professional security staff or law enforcement officials.
This article is not intended to provide legal advice.