What's New in Employment Law?

Most workplace problems do not arrive neatly packaged as legal claims. An employee may say a supervisor is treating them differently, complain about a coworker’s comment, announce that they are recording workplace conversations, or raise a discrimination concern in the middle of an ongoing performance issue. Another employee may ask for a schedule change and mention a medical condition almost as an afterthought.

None of these situations necessarily means the employer has violated the law. But what happens next can matter enormously.

Employers often create more risk through their response to an employee concern than through the event that triggered the complaint in the first place. A frustrated supervisor reacts defensively. Someone sends an email that should never have been written. HR becomes focused on whether the employee’s complaint is “true” before considering whether the complaint triggers legal protections. A legitimate performance problem becomes tangled up with frustration about the employee’s allegations.

By the time lawyers become involved, the original issue may no longer be the employer’s biggest problem.

Separate the Complaint From the Employee

One of the most important things an employer can do when an employee raises a concern is separate the concern itself from everything else the organization knows about that employee. The employee may be difficult. The employee may have performance problems. The employee may exaggerate, misunderstand what happened, or ultimately be wrong.

That does not mean the concern should be ignored or dismissed.

Complaints involving discrimination, harassment, retaliation, disability or religious accommodation, wage issues, safety concerns, and other workplace rights may trigger legal protections even when employees do not use precise legal terminology. In many circumstances, an employee also does not need to prove the underlying allegation was correct in order to be protected from retaliation for raising it.

For that reason, the initial question should not be, “Do we believe this employee?” The better question is, “What exactly is the employee telling us, and what do we need to do about it?” Those are very different inquiries, and employers that confuse them often create unnecessary risk.

Do Not Let a Bad Delivery Distract From the Message

Employees do not always raise concerns professionally. They may be angry, send lengthy emails late at night, accuse multiple people of discrimination, copy half the organization, threaten to contact an attorney, or announce that they are recording workplace conversations.

It is understandable that leaders may become focused on the employee’s behavior. But that can cause the organization to miss the substance of what the employee is actually saying.

There may be legitimate conduct issues that need to be addressed. Employees do not necessarily receive a free pass to violate workplace rules simply because they have raised a complaint. The key is to separate the two issues. First identify and appropriately address the underlying concern. Then determine whether there is a distinct conduct issue that warrants action.

When employers blur those questions, it becomes much more difficult later to show that a disciplinary decision was based on legitimate workplace concerns rather than irritation with the employee for complaining.

Pay Attention to the Leaders Closest to the Situation

HR may understand retaliation. The employee’s immediate supervisor may not.

A supervisor who has just been accused of discrimination or harassment may understandably feel angry, embarrassed, defensive, or unfairly attacked. Without guidance, that supervisor may begin avoiding the employee, communicating differently, scrutinizing the employee more closely, excluding the employee from opportunities, or suddenly documenting every minor problem.

Those changes in behavior can become important evidence later.

Employers should give leaders specific direction after a complaint is raised. Continue treating the employee professionally. Do not discuss the complaint with people who do not need to know. Do not make comments about the employee having complained. Do not change assignments, schedules, opportunities, expectations, or working relationships because the employee raised a concern. And before taking significant employment action, involve HR.

Simply telling a supervisor “do not retaliate” is not enough. Leaders need to understand what retaliation can look like in ordinary workplace interactions.

Keep Performance Issues Separate and Credible

One of the most difficult situations arises when an employee raises a protected concern while legitimate performance or conduct problems are already unfolding. Employers sometimes become so worried about retaliation that they stop managing the employee altogether. That is not the answer.

The better approach is to continue addressing legitimate performance concerns, but to do so carefully and consistently.

The employer should be able to identify what the performance problem is, when it began, what expectations were communicated, how similar situations have been handled, and what action the organization likely would have taken if the employee had never complained.

Documentation becomes especially important in these situations, but more documentation is not always better documentation. A sudden avalanche of criticism immediately after an employee raises a complaint can look suspicious, particularly when the employer had not documented the same concerns previously.

Consistency and credibility matter more than volume. Three months of ordinary, contemporaneous documentation often will be far more persuasive than 20 pages of criticism created in the week after an employee alleges discrimination.

Think Before You Put It in Writing

Some of the most damaging evidence in employment cases comes from emails and text messages written in frustration.

Comments such as “she is creating problems again,” “he is obviously setting us up,” “now she is claiming discrimination,” or “we need to get rid of him before this gets worse” may feel like harmless internal shorthand when they are written. Months or years later, viewed by an attorney, agency investigator, judge, or jury, they may tell a very different story.

Employers should document facts, not frustration. Avoid speculation about an employee’s motives. Do not describe employees as troublemakers because they have raised concerns. And do not mix discussion of a legal complaint with unrelated dissatisfaction about the employee.

Good documentation should help explain why a decision was made. It should not create a new issue that requires its own explanation.

The Best Response Is Usually the Most Boring One

Employers do not need dramatic responses when employees raise difficult workplace concerns. They need disciplined ones.

Listen carefully. Identify the actual issue. Preserve relevant information. Investigate when appropriate. Address accommodation requests through the appropriate process. Keep legitimate performance issues separate from the complaint. Remind the appropriate leaders about retaliation. Document facts rather than emotions. And involve HR or counsel before the situation escalates.

That approach may not feel particularly exciting, but that is the point. The strongest employer response often is the one that looks completely unremarkable when someone reviews the file two years later.

At Shaw Law Group, we regularly remind employers that they cannot control whether an employee raises a complaint. They can control what happens next.

And very often, what happens next determines how much legal risk the organization ultimately faces.

The post The Risk Is in the Response: How Everyday Employee Complaints Become Legal Problems first appeared on Shaw Law Group.

      

Human resources professionals are often the first people to recognize when an ordinary workplace issue is becoming a legal one. An employee mentions retaliation. A leave request gets complicated. A termination suddenly feels risky. A wage-and-hour issue surfaces. Or a leader asks, “Can we do this?”

That is often the right time to involve counsel—not three weeks later, after the decision has been made and everyone is trying to reconstruct what happened. But bringing a lawyer into the conversation does not automatically make everything privileged. Attorney-client privilege can be enormously valuable in the employment context, but HR needs to understand what it protects, what it does not, and how easily careless communication can undermine it.

What the Privilege Actually Protects

The attorney-client privilege generally protects confidential communications between a lawyer and client made for the purpose of obtaining or providing legal advice. That protection matters because employers need to be able to speak candidly with counsel about risk, mistakes, strategy, and difficult personnel decisions without assuming those conversations will later become exhibits in litigation.

But the privilege protects communications, not the underlying facts. If an employee complained about harassment on Tuesday, that fact does not become privileged simply because HR tells counsel about it on Wednesday. The communication with counsel may be protected, but the underlying event remains a fact that may be discoverable.

“Privileged and Confidential” is Not a Magic Spell

One of the most common mistakes HR folks make is assuming that putting “ATTORNEY-CLIENT PRIVILEGED” at the top of an email somehow makes it privileged. It doesn’t. Neither does copying a lawyer on an otherwise ordinary business communication.

There is a meaningful difference between writing, “We have decided to terminate Sam on Friday. Jen, FYI,” and writing, “We are considering terminating Sam on Friday. He recently raised a retaliation concern. Before we make a decision, please advise us regarding the legal risks and any additional steps you recommend.” HR should be intentional about why counsel is being brought into the conversation and, where appropriate, make clear that legal advice is being requested.

Know When to Involve Counsel

Not every workplace issue requires a lawyer. But some situations should trigger an early legal-risk assessment, including discrimination, harassment, or retaliation complaints; complicated disability, leave, or religious accommodation issues; discipline or termination involving someone who recently engaged in protected activity; significant wage-and-hour concerns; workplace violence issues; executive-level terminations; reductions in force; and any situation where HR finds itself thinking, “This could become a lawsuit.”

The earlier counsel becomes involved, the more options the organization likely will have. Calling after a termination has occurred limits counsel to evaluating a decision that can no longer be changed. Calling beforehand gives counsel the opportunity to identify gaps in documentation, inconsistent treatment, timing concerns, accommodation obligations, investigation issues, or other risks that may still be manageable.

Keep the Circle Small

Privilege also depends on confidentiality. One of the easiest ways to create problems is by forwarding counsel’s advice too broadly. HR receives an email from counsel, forwards it to the department head, who forwards it to a supervisor, who adds another executive, and suddenly a confidential legal discussion has become a sprawling email chain.

Legal advice generally should be shared only with those who genuinely need it to carry out their responsibilities. Even then, consider whether they need the lawyer’s actual communication or simply need to know the decision or action they are expected to implement. HR also should avoid casual statements such as, “Our lawyer says this termination is fine.” Those summaries can create unnecessary issues and may reveal the substance of legal advice.

Be Careful with Investigations

Workplace investigations require particular care. Counsel may conduct an investigation as part of providing legal advice, but the organization should think at the outset about counsel’s role, why the investigation is being conducted, how it will be documented, and how the results may later be used.

That matters because an employer that later relies on the adequacy of an investigation as part of its defense may put aspects of that investigation at issue. The time to think through those privilege questions is before the investigation begins, not after litigation starts.

Sometimes, Stop Typing

HR professionals live in email, Teams, Slack, text messages, and other electronic communications. Those tools are convenient, but they also make it easy to create lengthy written records before anyone fully understands the facts.

Sometimes the best first communication with counsel is simply, “Can you call me?” A conversation gives HR the opportunity to explain what is happening, answer questions, and receive preliminary guidance before creating an unnecessary email narrative. Counsel can then help determine what should be documented and how.

HR should also be thoughtful about where privileged communications are stored or shared. Legal advice should not be casually copied into shared databases, collaborative workspaces, AI platforms, or other systems without considering confidentiality and access.

The Bottom Line

Attorney-client privilege is not something HR should first think about after receiving a demand letter. Used correctly, it gives employers and their lawyers space to have candid conversations, evaluate risk, correct mistakes, and make better decisions before workplace problems escalate.

The practical rules are straightforward: involve counsel early when legal risk appears, clearly seek legal advice, keep communications focused, limit who receives them, and do not assume that copying a lawyer or adding a “privileged” label creates protection. And when a matter is particularly sensitive, consider picking up the phone before hitting “send.”

The goal is not to label everything privileged. It’s to make sure the communications that truly need protection stay protected.

The post Privilege Isn’t Automatic: What HR Needs to Know Before Hitting “Send” first appeared on Shaw Law Group.

      

Labor Day Is About People

We spend a lot of time talking about work as though it is separate from the rest of life. It isn’t. People come to work carrying everything with them: grief, fear, divorce, sick parents, sick children, financial stress, new babies, bad news, good news, exhaustion, ambition, pride, disappointment, and hope. Most of the time, the people around them know very little about any of it.

That is what I have been thinking about this Labor Day. I have spent my career advising employers about the workplace. I think about compliance, risk, investigations, policies, performance, accommodations, terminations, and all of the complicated decisions that come with employing people. But the longer I do this work, the more I believe the best workplaces are not defined only by how well they follow the law. They are defined by how they treat people when things are hard.

People Remember How You Show Up

Over the last few weeks, I have been reminded of that in a very personal way. When my daughter and I lost Weston unexpectedly, people showed up for us. They called, texted, checked in, remembered stories, and said his name. They understood that he was not “just a horse.” He was part of our family, part of my daughter’s life, and part of a future she thought she had.

Nothing anyone said could fix it. But kindness mattered. Presence mattered. And it made me think about how often the same thing is true at work.

A leader may not be able to fix what an employee is going through. An employer may not be able to say yes to every request. Sometimes performance must be addressed. Sometimes a job has to end. Sometimes the answer is “no.” But there is always a choice about how those moments are handled, and people remember that choice.

The Law Rarely Is the Whole Story

By the time an employment problem reaches a lawyer, we tend to focus on the legal questions. Was the leave protected? Was the accommodation reasonable? Was the investigation adequate? Was the termination justified? Those questions matter, of course.

But after decades of doing this work, I can tell you that many workplace disputes begin long before anyone starts talking about statutes or lawsuits. They begin when someone feels dismissed, when no one listens, when a difficult conversation is handled carelessly, or when an employee is reduced to a “problem.” They begin when a leader becomes so focused on being right that they forget there is another human being sitting across the table.

Sometimes the employer has done nothing legally wrong, and the situation still goes terribly wrong.

Kindness Does Not Mean Weakness

I think some employers are afraid of kindness. They worry that empathy means giving in, that compassion makes accountability harder, or that listening creates expectations they cannot meet. It doesn’t. You can be kind and still hold someone accountable. You can listen and still say no. You can recognize that someone is struggling and still require them to do their job. You can make a difficult business decision and still deliver it with dignity. Those things are not opposites. In fact, the strongest leaders I know are very good at both. They are clear. They are direct. They make hard decisions. And they never forget that their decisions affect actual people.

Work Is More Human Than We Pretend It Is

Employment law can make the workplace sound clinical. We talk about human resources, headcount, performance management, reductions in force, and the interactive process. We use phrases that make deeply personal moments sound almost sterile.

But work is not sterile. It is where people spend an enormous portion of their lives. It is where they succeed and fail, form friendships, discover what they are good at, and sometimes feel valued or invisible. A promotion can change a family’s life. A bad supervisor can make someone dread Monday morning. A termination conversation can stay with a person for years. A few thoughtful words from a leader can too.

That is why how we treat people at work matters so much.

What Labor Day Means to Me This Year

Labor Day is supposed to recognize the contributions of working people. This year, I find myself thinking less about “labor” as an abstract idea and more about the individual people doing it: the employee who showed up after a sleepless night, the leader carrying a burden no one else can see, the coworker who noticed someone was struggling and quietly helped, and the person who is doing their best during a season of life that is asking too much of them.

I also think about the people whose names may never appear in a company announcement, but whose work keeps everything moving. We owe them more than compliance. We owe them fairness, honesty, dignity, and sometimes a little grace.

Because work matters. But people matter more.

And if there is one thing I hope we remember this Labor Day, it is this: people may forget the policy, the meeting, or even the decision itself. They will not forget how they were treated when it mattered most.

The post Work matters. But people matter more. first appeared on Shaw Law Group.

      

Last week, my daughter lost her horse, Weston, without any notice. I have rewritten that sentence about 10 times because there really isn’t a way to capture what happened. Weston wasn’t just a horse E. rode. He was her partner.

They had been together for six years. They trained together, traveled together, competed together, and won together. They were two-time champions at the Pinto Worlds in Tulsa. But the championships aren’t the point. They knew each other. They trusted each other. They had that kind of relationship you sometimes see between a rider and a horse where it becomes hard to tell where one ends and the other begins. E. loved him completely, and suddenly he was gone.

As her mother, there was very little I could do about the one thing that actually mattered. I couldn’t fix it or make her feel better, and I certainly couldn’t give her Weston back. So, I did what most of us do when something terrible happens: I tried to deal with everything else. And, of course, everything else was still there. There were client emails, meetings, deadlines, and people who needed answers from me. Life does not clear your calendar when something awful happens.

What struck me over the last week was how many people simply understood. Clients were patient when I was slower to respond. People moved meetings. Colleagues took things off my plate without making me explain every detail first. Friends checked on E., and people from the horse world who understood exactly what Weston meant to her reached out. There were so many messages that essentially said the same thing: “Don’t worry about us. Take care of E.” Nobody asked me to justify why the death of a horse had turned our lives upside down or suggested that, because Weston was an animal, this loss should somehow be easier. They just understood E. was grieving, and I was incredibly grateful for that.

It also made me think about the workplace in a way I probably wouldn’t have a week ago. We spend a lot of time advising employers about rules. How much leave is someone entitled to? What does the policy say? Does the law require an accommodation? Can we make an exception? Those are legitimate questions, and they are questions I answer for a living.

But sometimes there is another question worth asking first: What does this person need from us right now?

Not every difficult moment has a statutory leave attached to it, and not every family crisis fits neatly into a policy. What feels devastating to one person may not seem nearly as significant to someone else, but I’m not sure that should matter as much as we sometimes think it does. A parent dies. A marriage ends. A child is struggling. Someone gets frightening medical news. An elderly parent suddenly needs care. Or a 16-year-old girl loses the horse who had been part of nearly every important moment in her life.

Sometimes people just need a little room. That doesn’t mean abandoning standards, eliminating deadlines, or granting every request. It means recognizing that there are moments when being a decent human being matters more than proving that a rule could be enforced.

There is sometimes a fear in workplaces that if we give people too much grace, they will take advantage of it. Maybe sometimes they will. But my experience last week was exactly the opposite. Every person who told me not to worry about something right now made me want to get back to them faster. Every client who said, “Take care of your daughter,” made me even more appreciative of my relationship with that client. Grace doesn’t necessarily make people care less about their work. Sometimes it makes them care more.

And people remember it. They may not remember the precise language in a bereavement policy or how many days off the handbook technically allowed, but they will remember the person who said, “Go. We’ve got this.” They will remember who made a terrible week harder, and they will absolutely remember who made it a little easier.

I wish I hadn’t had a reason to think about any of this last week. I would much rather be writing about E. and Weston heading to their next show or watching the two of them walk into another arena together.

But I am deeply grateful for the people who have surrounded us since we lost him. Nothing anyone can say is going to make E. okay right now. That isn’t how grief works. But people can make a terrible time less lonely, and that matters more than I realized before last week.

We talk a lot in my world about what employers are legally required to do. Sometimes the most important thing we can do for another person has nothing to do with what the law requires. Sometimes somebody’s life falls apart in the middle of the workweek. And sometimes the kindest thing we can say is simply, “This can wait.”

The post When Life Falls Apart in the Middle of the Workweek first appeared on Shaw Law Group.

      

It happens all the time. An employee calls out for several days and returns with a doctor’s note. Or HR gets an email saying the employee needs to work from home, avoid lifting, change their schedule, or remain off work for another month.

At that point, the employer usually wants to know one thing: Can we approve this, deny it, or ask for more information? Unfortunately, the answer usually is not that simple.

In California, a doctor’s note often is not the end of the analysis. It’s the beginning. Here are the practical steps employers should take after receiving medical documentation.

First, Figure Out What the Employee Wants

Do not get too hung up on the form of the request.

Employees do not have to use the words “reasonable accommodation” or “interactive process” to trigger an employer’s obligations. A note that says “off work until September 15,” “no lifting over 20 pounds,” or “must work from home” may be enough to put the employer on notice that the employee needs some kind of workplace change because of a medical condition.

The first question should be: What does this employee need to work, return to work, or remain employed? If the answer is not clear, ask.

Do Not Turn HR Into a Medical Investigator

Employers understandably want enough information to make a sound decision. But that does not mean HR is entitled to the employee’s diagnosis, complete medical history, or medical records.

Usually, what you need to know is much narrower: What are the employee’s restrictions? How long are they expected to last? What job duties are affected? What accommodation is being requested?

That is the information that helps you make a decision. Knowing the name of the employee’s medical condition does not.

A Doctor’s Recommendation is Not Automatically the Answer

This is another common mistake.

A doctor may write, “Employee must work remotely,” “Employee should not work more than six hours per day,” or “Employee cannot perform customer-facing duties.”

That does not automatically mean your employer must accept the doctor’s proposed solution exactly as written.

The employer still has to look at the employee’s limitations, the essential functions of the job, and whether there are other effective accommodations.

For example, if the note says the employee must work from home, HR should understand why. What limitation does remote work address? Does the job actually require the employee to be onsite? Could another accommodation solve the same problem?

The goal is not simply to approve or reject the doctor’s suggestion. You need to determine whether there is an effective, reasonable accommodation.

Look at the Job the Employee Actually Performs

This sounds obvious, but it is often where the analysis goes sideways.

Before deciding whether an accommodation will work, look at the employee’s real job duties. Not just the job description that was written six years ago and hasn’t been touched since.

Which duties are essential? Which are marginal? Does the employee really need to be onsite? Does the employee really need to lift 40 pounds? Could duties be adjusted temporarily? Would changing one task actually eliminate an essential function? These questions matter.

Employers generally are not required to eliminate essential job functions. But if you want to rely on that principle, you’d better be able to explain essential functions and why they matter.

If the Note Is Vague, Do Not Guess

Medical notes frequently are unhelpful:

• “Employee cannot work in a stressful environment.”
• “Employee needs flexibility.”
• “Employee should avoid prolonged standing.”

These statements do not give the employer enough information to evaluate the request. But an unclear note does not necessarily justify an immediate denial. Ask for clarification.

What does “flexibility” mean? What is the employee unable to do? How often does the restriction arise? How long is it expected to last? What accommodation would allow the employee to perform the job?

You don’t have to guess, and you shouldn’t.  Ask the follow-up questions and get the answers you need.

Keep Talking When Things Change

The interactive process is not a one-time event.

An employee may need a temporary accommodation and then request an extension. A restriction may become permanent. An accommodation that worked well for six months may suddenly stop working.

When the circumstances change, the conversation may need to start again. That is especially important with leave requests. An employee who initially needs four weeks off may later request additional time. Employers should evaluate the new information rather than assuming the original decision settles the issue forever.

Document How You Got There

Employers often document the final answer but not the process that led to it. That is risky.

The file should show when HR first learned about the issue, what information was requested, what the employee provided, what accommodations were considered, and why the employer ultimately approved or rejected a particular option.

Months later, the question is rarely just, “What did we decide?” It is usually, “Why did we decide it?” Good documentation answers both.

The Bottom Line

When a doctor’s note arrives, do not rush to stamp it “approved” or “denied.”

Figure out what the employee is asking for. Focus on restrictions, not diagnoses. Look at the actual job. Ask follow-up questions when the information is unclear. Consider alternatives. And document the process.

The best accommodation decisions do not come from a form or a doctor’s note standing alone. You must engage in a dialogue and thoughtful review of the facts.

Want more information about this important topic?

• Check out EmployersLawyer’s upcoming September 9 webinar, Accommodation Requests Done Right: Avoiding Costly Mistakes in California. Details here: Upcoming Webinars | EmployersLawyer 
• And don’t miss Shaw Law Group’s Effectively Managing Leaves of Absence and Reasonable Accommodations: Intensive Workshop (Advanced Topics) on September 22 and September 29. Space is limited, so register before it’s too late! LOA/RA Advanced Topics

The post The Doctor’s Note Just Landed in HR’s Inbox. Now What? first appeared on Shaw Law Group.