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Hiring/Firing Archives

Landmark Decision Defines Cause Of Action For "Negligent Supervision" Of Employees, Personal Liability For Supervisors

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).

Resignation or Discharge?!?!: How the Illinois Department of Employment Security Actually Evaluates this Question

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.

Expunged Conviction Not A "Conviction" Under WFEA

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.

Lessons Learned: Effective Documentation

"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?

Tomorrow's Workforce

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!

Employee Resignation - Employer Problem?

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.

Being Caught in a Tangled Web

In the March, 2017 Client Alert, the Author submitted an Article on giving guidance to Employers in the creation of good documentation to substantiate and defend Employment Decisions when those Decisions are called into question. While the presence (or lack thereof) of good documentation can be the success or failure in any Employment Litigation, there are certain situations where an Employer's documentation may create a "tangled web" in which an Employer catches himself/herself.

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