In fiscal year 2013, the US Equal Employment Opportunity Commission (EEOC) received 93,727 charges ranging from racial and disability discrimination to sexual harassment and retaliation.
Clearly, we live in an increasingly litigious society.
What’s the best way to stay compliant and limit the risk of future EPL claims?
Start with “an ounce of prevention.” In this case, prevention means educating yourself, following best practices and obtaining professional legal advice when issues arise.
Today, I’m presenting the second part of my series on employment practice liability. In part one, I discussed best practices for handling candidates with criminal convictions. Here, I address two other key liability issues for staffing firms: addressing harassment or discrimination claims made by temporaries on assignment, and hiring candidates with disabilities. While this information is not a substitute for professional legal advice (and should not be construed as such), it provides practical recommendations to help you understand and minimize your risks.
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Issue 2: Addressing Temporary Employee Harassment and Discrimination Claims
Co-employment situations create the potential for complex liability issues. For example, consider this scenario:
A client releases a field associate, citing performance-based problems as the reason for dismissing the individual. Upon being removed from assignment, however, the field associate tells you that she was really let go because she complained about being sexually harassed by one of the client’s employees.
Who’s right? Who’s responsible? Should you offer the client a replacement field associate?
Clearly, this is a sensitive issue. On the one hand, you don’t want to compromise your relationship with the client. On the other hand, you do not want your field associates working in an inappropriate work environment – and you are obligated to thoroughly investigate the situation. Specifically, you need to determine if the employee was discriminated against based on a protected classification, or if performance was really the issue.
Speaking in broad terms, it’s generally the client’s responsibility to address a harassment or discrimination claim brought against their employee according to EEOC guidelines. However, your staffing firm can become liable if you fail to investigate appropriately and within a timely manner, and to take appropriate remedial action if necessary. You could also be liable for retaliation if you fail to find another assignment for a field associate who makes a good-faith complaint, even if it is determined that the complaint lacks merit.
If a field associate claims harassment or discrimination, or even mistreatment, by a client employee, investigate immediately – no matter how small the complaint. The reasons behind a client’s decision to release a temporary are not always obvious, nor is it always obvious whether a field associate’s complaint of mistreatment might be related to a protected class. Your staffing firm must address the issue as soon as possible to determine the root cause, take appropriate action and, hopefully, maintain a positive relationship with both the client and employee.
Should You Replace the Employee?
Whether a field associate is terminated by the client or voluntarily leaves an assignment, you should take all claims of discrimination and harassment seriously. Have a specialized attorney (or your in-house counsel) immediately conduct a thorough investigation to assess the claim’s validity and provide recommendations to you. As a general rule, you should not replace the temporary employee until those recommendations are made.
Issue 3: Candidates with Disabilities
Finally, consider this scenario:
During his initial interview with your staffing firm, a candidate confides that he has multiple sclerosis. The position to which he is applying requires heavy lifting and substantial physical stamina.
Should you place the candidate? Should you inform the employer?
Any time you have a concern about whether a candidate’s health may limit his abilities to perform a job, seek advice from your risk management experts or an attorney specializing in employment law. Together, you can review the job requirements and make the right placement decision – preventing problems with workers’ compensation, disclosure and failure to accommodate.
Furthermore, do not disclose medical conditions to clients unless accommodations need to be made. Your legal experts should advise you on the best course of action for each case that you encounter.
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