Last week, The Employee Rights Advocacy Institute for Law and Policy published a paper entitled “The Widespread Use of Workplace Arbitration Among America’s Top 100 Companies”. The research was aimed at discovering how prevalent, and therefore limiting, arbitration agreements are for individuals employed by America’s largest companies. Professor Imre Szalai of the Loyola New Orleans College of Law, who authored the paper, determined that arbitration agreements are both commonplace and extremely limiting to employees.
Many companies impose certain restrictions on its employees by various means such as company policies and employment contracts. Professor Szalai found that, among the Fortune 100 companies studied, 80 of them have used arbitration agreements in connection with workplace-related disputes since 2010.
In the event of workplace misconduct, arbitration agreements limit a person’s ability to bring his or her claim in court. Often, these agreements set out a procedure for handling these disputes. There are various versions of these procedures, but they generally set out a course for an investigation and determination, possibly followed by an opportunity for appeal. Finally, there is always a clause forcing arbitration in the event that the issue isn’t resolved. This means that a person’s ability to bring a claim in a court of general jurisdiction is limited. In general, the decision made by the neutral arbitrator is final.
This is an issue that I run across from time to time. An individual who has an excellent case is barred from bringing a charge of discrimination or a petition for damages because he or she must see the case through the procedure set forth by its employer.
In sum, it is always a good idea to be aware of your company’s policies. Even though you likely have no choice about whether or not to agree, knowing what your up against can influence how you move forward when put in a difficult situation.
Every week, I encounter new potential clients who have fallen victim to workplace discrimination. Among other topics, unlawful conduct includes Age Discrimination, Disability Discrimination, Injury Discrimination, National Origin Discrimination, Pregnancy Discrimination, Race Discrimination, Religious Discrimination, Retaliation, Sex Discrimination, and Sexual Harassment. Sometimes, it is impossible for me to help. Often, people wait too long to speak out or fail to preserve their claim. Sitting back and letting others treat you unlawfully is not the right approach to take. Below is my quick guide for dealing with employment discrimination in Missouri.
Step 1 – Review Company Policy
Look up your employee handbook that you probably haven’t thought about since getting hired or being handed the latest revision. Often, these will have procedures to follow in the event of workplace misconduct. If they do, follow them.
Step 2 – Report to your Employer
Let your direct supervisor and/or manager know what happened, and do so in writing if possible. Give him/her the important facts. Once you have put management on notice, they should investigate your claim.
Step 3 – Follow-up with HR
See if they investigated your complaint, and find out what they determined and what remedial measures are being taken.
Step 4 – Seek Legal Representation
If you have experienced the treatment, reported it pursuant to company policy, and nothing has been done to remedy the situation, you need to contact an employment law attorney. You should also contact counsel if your employer has retaliated against you for making a claim. Your lawyer will work with you to properly file your charge of discrimination with state and federal agencies.
TIP: Please document your experience as well as possible. This can make your case down the road.
Lately, I have been meeting with many individuals regarding pending discrimination charges with the EEOC and MCHR. I commend these individuals for taking the initiative to do good research about discrimination procedure and take the first important step to having their employment issues heard. Filing a discrimination charge is always stressful and time consuming.
That being said, these pro se filed charges are always too short, lacking in detail, and overall ineffective at mounting a proper case. It is imperative that your discrimination charge tell a detailed story that compels the investigator to delve into the relevant nooks and crannies that house the important facts surrounding the treatment that motivated the unlawful conduct, which led to the filing of charges. You must provide specific facts and allegations that guide the investigator to the proper destination. Irrelevant or superfluous information should never be given.
In fact, I almost never see positive results from discrimination charges that originated pro se. Involving legal counsel from the outset increases your chances of a favorable outcome exponentially. We offer affordable consultations for discrimination cases, so there is very little risk in getting our opinion. If you think you may be the subject of unlawful workplace treatment or harassment, let’s talk about it. Retaining an employment lawyer will likely significantly increase your chance of prevailing.
You can’t log onto social media without being exposed to someone’s opinion on politics. And, normally, I would say that’s fine. The ability to talk about what you believe and why you believe it can be extremely productive. Often, these discussions can spark progress and understanding. That being said, “freedom of speech” does not protect you from being fired for it.
In Missouri, most employment is “at-will”, which means that you can be fired for any reason or no reason whatsoever, as long as that reason is not unlawful. There is no requirement the termination of your employment be “just” or for “just cause”. There are various state and federal laws that prohibit employers from terminating employment. For example, termination of employment cannot be motivated by race, religion, sex, certain ages, disability (with certain restrictions), work-related injury, or participation in certain investigations, to name a few. Are there some glaring omissions? Definitely. Currently, a few particularly hot topics are sexual orientation and political ideology.
So what does this mean? The best advice I can offer is be aware of your social media footprint. Limit those who have access to your tweets, status, and the like by making your profile private. Not only could these things affect your current job, but they can also dissuade future employers from hiring you. The bottom line is that everybody has a right to voice his or her opinion, but that right is not one that provides us with legal protection from discrimination.
Last month (12/16), the EEOC published a new document on mental health conditions in the workplace. It is entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights”. It is rather short, and it is helpful for both employers and employees to read. If you don’t read it, at least check out the 3 points I outlined below. Most of what the publication contains is old news. That being said, there is nothing more invigorating than a refresher in labor and employment law. So, here are the main takeaways for those of you who manage or supervise employees:
- You cannot fire somebody because he or she has a metal condition.
….unless that person cannot perform the essential functions of the job with or without a reasonable accommodation. The law goes on to state an exception, which is that employers do not have to employ people who, even with an accommodation, pose an objectively direct threat to safety.
- You may require an employee with a mental health condition to submit medical documentation offering proof of the condition if a reasonable accommodation is requested.
However, it is generally accepted practice for employers to not force employees to disclose a precise condition or present sensitive medical records as long as whatever you receive sufficiently describes the limitations and identifies particular accommodations that would allow the employee to perform the essential functions of the job.
- If a reasonable accommodation would help an employee do his or her job, you must give that accommodation unless it involves significant difficulty or expense.
This rule may seem like a way around providing accommodation, but it is not a good idea to make this decision on your own. Most employers are surprised at how significant the difficulty or expense must actually be in order to be exempted from this rule, and the courts will not hesitate to make an inquiry into the position of the company when determining if denial on these grounds is proper.