There is No Party in 3rd Party Harassment

If you are a PEO, temporary employment agency or company that has temporary workers on your site, this case should be of particular interest to you. On January 11th the U.S. District Court for the District of Columbia held that a third party client company (and possible joint employer) could be held liable for unlawful retaliation against a temporary, agency worker. In Coles v. Harvey, Kelly Services ("Kelly") had a contract with the Walter Reed Army Medical Center ("WRAMC") to provide clerical workers. Ms. Coles was hired by Kelly to work at WRAMC. One Friday, Ms. Coles complained to two WRAMC representatiaves alleging that she was being sexually harassed and threatened by an Officer-In-Charge ("OIC"). On Monday, Ms. Coles spoke to the same two WRAMC representatives. One told her she was fired for a timecard discrepancy; the other told her she was fired for filing a formal complaint against the OIC. Simultaneously, a third WRAMC representative called Kelly and reported that Ms. Coles falsified her time card and was rude to patients. Based on that complaint, Kelly terminated Ms. Coles' employment.

Ms. Coles first sued Kelly and lost; the court found no unlawful retaliation because Kelly did not know about the harassment complaint at the time they terminated Ms. Coles' employment. Ms. Coles next sued WRAMC and the court held that she could proceed on her claim of unlawful retaliation under Title VII against WRAMC.

Lessons Learned? First, be sure to conduct a full, prompt and proper investigation of any alleged workplace misconduct before taking any adverse employment action. Although they "won" the case, Kelly may have been able to avoid any litigation by getting the employee's side of the story before terminating her employment rather than relying solely on the client's version of the events. As a client company, WRAMC might have avoided or limited liability by calling Kelly and having the agency inform the worker that she was terminated rather then telling the worker directly. Companies often inadvertently create joint employment relationships with a temporary employment agency by exercising regular control over not just what temporary workers do but when and how.

Second, get your story straight! This newsletter has shared stories in at least two previous editions (March 2005; February 2004) where an employer was found liable for an unlawful employment action because it gave conflicting reasons for taking a particular employment action.

Tips? Whether you are a company that uses a PEO, temporary employment agency or other non-traditional workforce, be sure you are creating the relationship with workers that you want. There are advantages to joint employment relationships but you need to know in advance if that is what you want. Similar concepts apply when using independent contractors.

Hot Hits! Education Corner

February's Public Seminars/Speaking Engagements:

Ms. Walters will be presenting three of five programs offered as a part of the Associated Builders' & Contractors, Inc., Baltimore Metro Chapter, HR Academy and participating in the final panel presentation. All sessions are from 3-5 p.m. in Towson, MD. Dates and topics are as follows: February 6th, "HR Audit for Small Business;" February 13th, "HR Tips and Tools: Policies, Procedures and Practices;" and Feburary 20th, "Coaching, Counseling & Correcting." Contact the Association at the website above for more information or to register.

February's Client Training Programs:

" HR & the Law for Managers"

"HR for Non-HR Managers"

Time to Post Your OSHA Form 300A!

For those of you that are employers covered by OSHA's recordkeeping requirements (companies with 11 or more employees and not otherwise exempt), you must post your OSHA Form 300A from February 1st through April 30th of each year. Not sure if your company is exempt? Find your Standard Industry Classification (SIC) Code and then go to http://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html If your company is NOT exempt and you need the recordkeeping forms, instructions or employer's guide, you can dowload them from FiveL Company's website, http://www.fivel.net/forms.html or go to http://www.osha.gov/recordkeeping/index.html.

Court Finds Employee Handbook Ambiguous; Employment May Not Be At-Will

Just a few months ago, the 4th U.S. Circuirt Court of Appeals (covering Maryland, Virginia, West Virginia, North and South Carolina) held that an employee handbook had an insufficient disclaimer with regard to the at-will nature of the employee relationship, was ambiguous and, as a result, it could reasonably be determined that the Plaintiff was not, in fact, an at-will employee. The Court cited two policies within the Handbook that created the ambiguity: one distinguished between employees who had worked for the employer for less than 90 days and could be fired for any reason and those who had been employed longer than 90 days and could be discharged for reasons cited in another policy. The latter policy then gave of list of behaviors for which certain disciplinary actions could or would be taken. Read as a whole, the court held, "nothing in the handbook contains the kind of clear and conspicuous language disclaiming any contractual obligation [held] unambiguous in other cases." Lessons Learned? Be sure you have a clear and conspicuous at-will statement in your employee handbook. Then, also be sure you do not have other policies that may render your disclaimer null and void, such as a "Probationary Period," "Disciplinary Action," or other, related policies. Has it been more than 18-24 months since you last had your Employee Handbook reviewed? Does your company not yet have an Employee Handbook but is thinking about creating one? Contact FiveL Company today for a sample Table of Contents and estimate for reviewing or developing an Employee Handbook.

SPOTLIGHT!!

Following last month's presentation of "Maintaining an Inclusive Workplace" for staff and management team members, Carol Duvall, HR Director for The Coordinating Center rated the overall training services as "Excellent" including the extent to which the program: (1) was tailored to meet the organization's specific needs and (2) provided materials and cases that were industry-specific. Are you planning your company's 2007 management training programs? Call FiveL Company today for program listings, outlines and estimates.