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Tag: employment attorney

Small Business Owner? You’ve Been Served: Next Steps After Receiving a Complaint. 

January 7, 2021

There are many aspects of business cannot be controlled – not least of which are pandemics and lawsuits. Being served with a lawsuit is serious, and it can also be nerve-racking. Fortunately, knowing what to do and taking a proactive approach will help you get through it. Having an existing relationship with professionals like attorneys will also lessen the burden.

Although there are endless ways to “avoid” being sued, the fact is even when you do everything correctly, some may still bring a claim against you and your business. Be prepared.

1.     Avoid Extreme Reactions of Panic and Indifference   

DO NOT ignore the lawsuit and do not panic. Panic can lead to poor decisions and ignoring the lawsuit is a poor decision in and of itself. Do not react emotionally by contacting whoever is suing your business directly. Allow your lawyer to talk to their lawyer and handle everything on the record. If you are dealing with an employment-related issue where you still have to communicate with the person who is suing your business because they are an employee, you should avoid discussing the lawsuit and make sure someone is always there to witness your interactions.

2.     Read the details of the lawsuit carefully

Pay attention to the important points: who, why, what, when. Who is suing you? What are they suing for and why do they feel the need to do so? When do you have to provide a response (Answer)? It will all be right there in the Complaint and knowing what you are faced with is the first step in getting the best outcome under the circumstances.

3.     Contact a reputable attorney (if you do not already have one, as you should)

If you do not already have a working relationship with a reputable, experienced attorney, now is the time to start one. Even if you do not need their services yet, you can establish a relationship and get valuable insight on how to proceed if you are put in this position. Companies cannot appear in court without an attorney representative so for may, this is not optional.

4.     Notify your insurance company if the suit involves an insurance claim

In some claims, insurance coverage will be implicated. This can be helpful because the insurance company might retain an attorney to defend the suit on your behalf. However, it is still important to consult an independent attorney to make sure that you are protected professionally and personally.

5.     Determine how to move forward

Once you have taken the time to see what you are up against and talk to your lawyer about the best course of action, you will need to use this information to decide how your business is going to move forward with the lawsuit that has been filed. At times, it might be best to attempt to settle the claim without further litigation. In other circumstances, filing a strong defense or counterclaim will be most effective.

Honestly, if you can start with respect and mutual understanding, you may be able to avoid most of the potential lawsuits and other complaints from employees. But, even if a suit does happen, it’s not the end of the world. Use the information in this guide to help you get ready for any legal issues facing your small business.

Stay tuned for tips on What Not To Do When Served With A Lawsuit.

Cheers.

“Sex” Means “Sex”: SCOTUS Extends Anti-Discrimination To LGBTQ Employees

June 18, 2020

On June 15, 2020, the United States Supreme Court (SCOTUS), by a vote of 6-3, ruled that the ban on sex discrimination in Title VII protects gay, lesbian and transgender employees. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of sex”; however, members of the LGBTQ community have not enjoyed this protection through federal legislation because some courts, including the 11th Circuit in which Georgia courts sit, had interpreted “because of sex” to exclude sexual orientation and sexual identity.

The Bostock ruling is a landmark decision. LOSO, LLC, had appraised our readers about the Bostock case here. To summarize briefly, Mr. Bostock’s employment with Clayton County, Georgia was terminated when his employer discovered that he was a gay man. Both lower courts upheld the termination.

Upon appeal to SCOTUS, in the majority’s opinion, Justice Neil Gorsuch framed the question before the Court as a straightforward one:  “Today,” the Court stated, “we must decide whether an employer can fire someone simply for being homosexual or transgender.”  The Court found that the answer to that question “is clear.”  When an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch explained that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law.  The Court noted that the word “sex” means either male or female. Thus, under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.”  All that matters, the Court emphasized, is whether “changing the employee’s sex would have yielded a different choice by the employer.”

As an example, the Court cited the case of an employer with two employees who are both attracted to men and are, for purposes of comparison, identical but one is male and one is female. If the employer fires the male employee only because he is attracted to men, while keeping the female employee who is also attracted to men, the employer has violated Title VII by treated the sexes differently.

The Court rejected the idea that because Congress did not address sexual orientation or transgender status specifically in Title VII, the law does not protect LGBTQ employees. Instead, the Court made clear that discrimination against LGBTQ employees, “necessarily entails discrimination based on sex”.  The decision noted that if Congress establishes a broad rule of “sex” in all its variations, without any exceptions, then “courts apply the broad rule.”

The Bostock decision may not have an earth shattering effect on employers who are located in jurisdictions where protection for LGBTQ employees have already recognized. But for all others, Bostock requires an immediate revision company policy and accompanying training for managers and supervisors. Contact us to see how we can help.

Background Checks in Employment – Planning a New Hire, Read This Too!

December 21, 2018

How do I complete a background check?

There are several ways for employers to gather information on the background of an applicant for employment. An employer can embark upon the task solo, with the prevalence of online data contact information for alleged previous employers, social media posts, previous and pending civil actions, are all available online. Most frequently however due to the convenience, accuracy and time constraints, employers hire third-party vendors to conduct background checks on applicants.

Background checks reveal important information. However, there are legal limitations on employers obtaining and using this type of information. When employers hire a third party to conduct a background check, or obtain reports from outside agencies, such reports are subject to the federal Fair Credit Reporting Act (FCRA) and state laws. Also, in Georgia, employers must comply with laws concerning criminal background checks and driver’s record information. 

The Fair Credit and Reporting Act (FCRA) sets the standards for employment screening for non-public information. Prior to doing a background or credit check, employers must request and receive written permission from the applicant to complete a background check. In the event the employer elects not hire the applicant, the employer is required to provide the applicant with a copy of the report(s) that were utilized in the employer’s decision not to offer employment.

Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of several grounds, including race. Thus, employers must request background checks of all applicants equally and employers are prohibited from utilizing the information to discriminate against applicants. 

Under Georgia law, private individuals and businesses may request criminal history records by submitting fingerprints of the person whose records are requested or a signed consent form with the person’s full name, address, Social Security number, and date of birth to the Georgia Crime Information Center (GCIC). Except as specifically authorized by law for certain offenses, the GCIC will not release records of arrest or charges that did not result in a conviction, or sentences for certain first offender crimes, or for crimes where the individual was later exonerated, or the charges were discharged without court adjudication of guilt O.C.G.A. 35-3-34 (2010).

Background Checks in Employment: Planning For A New Hire? – Read This First!

December 8, 2018

What is a background check and why do I need one?

A background check is a review of an employment candidate’s social, criminal, and financial records. Background checks have become standard practice in the employment setting; in fact, up to 70 percent of employers require employees to undergo background checks prior to hiring. 

The reasons employers utilize background checks are numerous and varied. Utilizing background checks allows the employer to find the best candidate by looking into the applicant’s criminal background, education, employment history, civil records, references, among other sources of information. A pre-employment background check has become a matter of necessity as some applicants will “lie, steal and cheat” to impress a prospective employer. For example, an employer may want to ensure that the applicant is telling the truth about their qualifications: to determine if the applicant graduated from college, or worked for a previous employer performing the duties as stated on the application. Background checks can also protect the employer from liability, both civil and criminal. For instance, an employer would want to ensure that the applicant has no record of misconduct pertinent to the business as this could be grounds for a negligent hiring Georgia state law tort claim. Or, the employer may want to verify the age of the applicant to be complaint with child labor laws. An employer must also consider immigration laws and seek to verify the immigration status of its employee.

All in all, the benefits of a comprehensive employment background include:

·      increased applicant and new hire quality, 

·      reduced workplace violence, 

·      reduced negligent hiring liability, 

·      reduced losses from employee dishonesty, 

·      making the right hire the first time, and

·      avoiding negative publicity, among others.

Most importantly, employers have a moral and legal obligation to provide a safe work environment pursuant to state and federal laws like the Occupational Safety and Health Act (OSHA). The bottom line is that pre-employment background checks help an organization be more successful; that means greater profits to for-profit organizations and greater impact for non-profits.