Risks In Employment Law

 

By Albert L. Kelley

 

Because employment law affects almost everyone in one way or another, it is an important topic to discuss. First, some generalizations. Years ago there was no issue with hiring and firing. Employers hired who they wanted and fired who they wanted. If the employer didn’t want to hire women, he didn’t have to. Same with minorities, the elderly or handicapped people. Eventually, the workers had enough and rose against the employers. After years of litigation and legislation, the law changed. Congress and the courts have restricted the rights of the employer in whom they can hire and who they can fire.

 

 

The law has also changed in regards to what an employer can say to an employee. Before, an employer could make sexual comments or tell an off-color joke without worrying about being sued for discrimination. Today, not only can’t the employer tell these jokes, but he has to take efforts to ensure that the employees don’t tell them either.

 

 

Today is the most dangerous time to be an employer. We live in a litigious society. Many cases, especially employment law cases, are handled on a contingent fee basis; that is, the legal fees are paid as part of the recovery. If the employee doesn’t win, there are no legal fees. If the lawyer wins a big judgment, he gets a big paycheck. If an employee is incompetent but thinks he was fired for racially/sexually/religious/age motivated reasons, he can sue. He might win, in which case he may get a lot of money for being incompetent. If he loses, he may be ordered to pay the other side’s costs, but if he has no money there is little risk.

 

 

I’m not saying that all employment lawsuits are frivolous. Some are, but many have merit. Employees are learning what their rights are. Many laws require posting of rights in the workplace. Reality TV courts give us a front row seat in the legal process and lets the layperson see what the law is. Today, the major news stories are often about lawsuits: Trayvon Martin, Jodi Arias, Bernie Madoff, foreclosures. Society is becoming more interested in what happens in the courtroom and as such people are becoming more familiar with their rights.

 

 

Because the risks to employers have become so great, they have had to adapt. Many do this by creating an office of human resources or a personnel director. This person is responsible for hiring and firing. Often they also address any problems the employees have about the business or their fellow workers. They are also responsible for keeping the employer informed of the changes in the laws. Finally, they are responsible for finding ways around the laws. As an example, let’s say you are the personnel director for Hooters, and a man applies for a job as a waiter. The law says you can’t discriminate against applicants on the basis of sex. However, Hooters doesn’t want men in the orange shorts and tight T-shirts. How do you get around this law? Keep this in mind; when we get to those sections later we’ll discuss it.

 

 

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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