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Jonathan A. Segal
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Dr. King’s words:  http://abcnews.go.com/Politics/martin-luther-kings-speech-dream-full-text/story?id=14358231

With deep respect to his memory and with hope that we are closer to his dream becoming a reality.

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
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Jonathan A. Segal
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As originally published by SHRM’s “We Know Next” found here.

Au Revoir Bad Precedent

As we all know, in EEO termination claims, how we treat the “comparators” is critical.  Two (2) key questions:

  • Did you let anyone else go for a same or similar reason?
  • Did you not let someone else go even though they had engaged in same or similar conduct?

What do you do if you have an inconsistent practice historically?

If you take a hard line, you may get an EEO claim. You are treated more harsher than X because of my  [insert protected group or protected activity].

If you play it safe and a avoid hard line, you run the business risk by making bad precedent a consistent policy.

The beginning of a New Year is a great time to minimize the risk of bad precedent.

Prepare a document now stating that, regardless of what may have been the practice in the past, effective January 1, 2012, you will do X consistently.  You may even want to communicate something to that effect to the workforce (but without directly stating that there have been prior inconsistencies).

What is the benefit?  You can show you have decided how you will handle the situation prior to and independent of knowing who next engages in the conduct at issue. If an employee is fired and brings a discrimination claim and uses pre-2012 comparators, you can defend on ground that the difference is not age, sex, race, etc., but rather the year in which the infraction occurred.

This does not eliminate the legal risk.  But it should minimize it materially.  And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.

Of course, it is more complicated with unions.  You may need to negotiate with the union.  At a minimum, you always should provide the union with notice.

As always, talk with your counsel. Bad precedent is, well, bad.  Now is an ideal time to start making good precedent.

This blog should not be construed as legal advice, pertaining to specific factual situation or establishing an attorney-client relationship.

About Jonathan A. Segal
570
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .