If an employer is planning on terminating an employee whom the employer feels may be litigious or a "high-risk termination," then the employer may want the employee to sign a carefully prepared severance and release agreement. Giving an employee severance (i.e., money or something of value) in exchange for the employee signing a release of all claims against the employer is a legally acceptable mechanism for an employer to avoid potential litigation.
On June 2, 2019, the Illinois General Assembly approved the Workplace Transparency Act providing certain protections concerning sexual harassment in the workplace and imposing significant new obligations on Illinois Employers. This Bill was signed into law by Governor Pritzker in June 2019 and the provision of the new bill become effective January 1, 2020.
◊The Impact On Your Business Practices ◊
On May 23, 2019 the Illinois Supreme Court ruled, in Jane Doe v. Chad Coe et al. - a case of first impression for the court - what elements are necessary to pursue a lawsuit for "negligent supervision" of an employee. Most state courts recognize claims against employers for negligence regarding their employees who harm others, and Illinois is no exception. "Negligent hiring" generally involves hiring an employee who foreseeably would harm someone, who in fact does go on to harm someone (e.g. hiring an individual to work at a day-care who is known, or through a reasonable background check should have been known, was a convicted pedophile who poses a risk to children, if the employee later molests a child). Conversely, a claim of "negligent retention" may exist where an employer fails to discharge an employee known (or who reasonably should have been known) to present a foreseeable risk to others, who then goes on to do harm. Yes, that's right - employers sometimes have a legal duty to fire an employee! The recent Coe case involved claims for both negligent hiring and negligent retention, but also a claim for "negligent supervision." As the name suggests, a claim for negligent supervision involves an employer's failure to properly supervise employee(s) to avoid foreseeable risks of harm to others. While the Illinois Supreme Court had previously recognized the existence of a claim for negligent supervision, it had not addressed what elements are required to pursue such a claim. In doing so the court paved a relatively easy path for plaintiffs to sue not only employers for negligent supervision, but also individuals who direct and control workers. Employers, owners, managers and front-line supervisors in Illinois will want to take notice of this important decision and pay particular attention to the kinds of specific responsibilities expected of them (perhaps even doing a "Google search" on some applicants).
Many times clients/employers struggle over whether they should graciously offer the option of resigning to an employee whom they actually wish to fire. The client/employer reasons that the fired employee might prefer to tell "the world" that he himself has resigned from his job, rather than admitting that he was fired. But the client/employer sometimes worries that offering this option of resigning may have some adverse legal impact for the employer/company.
HR professionals that conduct criminal background checks on prospective employees are well aware of (or should be) the Wisconsin Fair Employment Act's prohibition against discrimination on the basis of an individual's arrest or conviction record. Under the WFEA, an employer may not discriminate against an employee or prospective employee on the basis of a pending arrest or conviction, unless the circumstances of the arrest/conviction are substantially related to the circumstances of the proposed employment. Easy enough? Not really.
It Depends On What State You Are In!!
"The importance of documentation" is an axiomatic, and almost trite, battle cry that human resource professionals constantly beat into the psyches of their supervisors - quite often to no avail. But what, really, is "documentation?" When do you do it? How do you do it? And, what, exactly, are you supposed to document? More importantly, have you ever conveyed this information to your supervisors?
While the author is seventy-two (72) and probably will be out of the workforce in a few years (?), according to the United States Census Bureau (National Population Projection Statistics), Employers will be facing some interesting changes and challenges in their future workforces. Those "changes and challenges" will not only deal with technological issues, but with actual employees!
While there may be disagreement as to the current status of the work environment, most intelligent/competent people would agree that unemployment is low and the job market is beginning to tighten. The U.S. unemployment rate is at a sixteen (16) year low - 4.3%. In fact, there are 73 counties in the United States with unemployment rates of 2% or less based upon recent Bureau of Labor statistics. In this type of environment, talented Employees in your employ will be in higher demand, especially in a highly competitive industrial environment. Whether or not some have the perception of "manufacturing jobs" as "dirty work or low class" or that being "college educated" is an absolute requirement, the availability of experienced personnel with manufacturing skills is a growing talent shortage. While you may have in place Confidentiality, Non-Solicitation and Non-Compete Agreements, these documents, in and of themselves, do not totally protect an Employer. Employers must have a plan in place to address and deal with the unexpected departure of an Employee.