The Top Five Employment Law Issues Employers Face in the Post 9-11 Era

01/03/2002

As employers face the uncertainties of the post 9/11 era, we issue this Alert addressing five significant issues that the terrorist attacks raise for employers:  (i) discrimination claims; (ii) the Uniformed Services Employment and Reemployment Rights Act of 1994; (iii) workplace violence; (iv) background checks; and (v) security, evacuation, and safety.
 
1. Discrimination Claims
 
Three days after the terrorist attacks, Cari Dominguez, newly appointed EEOC Chair, made a plea for tolerance and asked employers to reiterate their policies against discrimination.  This sends a message that the EEOC will be on the lookout for any race/national origin or religious discrimination against Arab-Americans or Muslims in the workplace.  With all of the news reports of intimidation, harassment, and violence against Arab-Americans and Muslims after the attacks, employers should consider renewed anti-harassment training and re-emphasizing to employees that workplace discrimination or harassment will not be tolerated.
 
2. The Uniformed Services Employment and Reemployment Rights Act of 1994
 
Given the government’s recent activation of several thousand military reservists, employers must become familiar with the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA” or the “Act”).  USERRA prohibits discrimination based on past, current, or future military obligations in any branch of the United States uniformed services.  The Act prohibits discrimination in employment decisions such as hiring, promotion, reemployment, termination, and benefits.  All employers are subject to USERRA, regardless of the number of employees they have.  The Act also protects individuals who apply to become members of the service.
 
Under USERRA, an employee who leaves a job to serve in the uniformed services, either voluntarily or involuntarily, is entitled to reinstatement upon satisfactory completion of the uniformed service term.  An employee on military leave is not entitled to pay, but is entitled to participate in insurance or other benefits offered by the employer.  Moreover, an employer cannot force an employee to use vacation time for military leave.
 
USERRA’s requirements are highly detailed and go beyond the scope of this Alert.  Therefore, we recommend that employers consult employment law counsel for additional details.
 
3. Workplace Violence Issues

The terrorist attacks have given many employers pause to consider preventing workplace violence in any form.  Recognizing the large liability exposure that workplace violence incidents can precipitate, we recommend that all employers adopt a zero tolerance anti-violence policy that is distributed to all employees.  This policy should prohibit employees from bringing weapons of any type onto the employer’s premises, including parking lots.  Employers should also post signs at entrances prohibiting weapons.  Additionally, we recommend that employers consider providing workplace violence prevention training, especially to help supervisors identify the warning signs that often precede employee acts of violence.
 
4. Background Checks
 
Employee background checks can make the workplace safer for all employees.  Further, these checks can help employers avoid negligent hiring/retention lawsuits.  Nevertheless, employers conducting background checks should carefully analyze whether the checks are applied in a discriminatory manner (such as requiring only Arab-Americans to submit to them).  Also, employers must take steps to comply with the Fair Credit Reporting Act’s requirements before initiating background checks.
 
5. Security, Evacuation, and Safety Issues
 
The terrorist attacks have encouraged many employers to evaluate how they can improve workplace security and employee safety.  In addition to employee background checks and no weapons policies, employers should evaluate whether their workplace security is adequate for their particular needs.  Employers may consider issuing picture identification cards to employees and restricting visitors’ access to facilities.  Depending on the level of security appropriate for a particular facility, employers may consider hiring security guards or installing security cameras.  Depending on the size and risks associated with a particular company or organization, some employers may consider hiring a private security expert to evaluate the company’s security measures.  Additionally, one vital component of a comprehensive employee security/safety plan that many employers lack is an employee evacuation plan.  We recommend that all employers develop and distribute an employee evacuation plan.
 
Given the recent incidents of anthrax exposure through the mail, we recommend that employers consider issuing a mail handling policy.  Indeed, the Occupational Safety and Health Administration (“OSHA”) recently issued guidance to employers regarding possible anthrax exposure in the workplace.  Specifically, it issued a risk assessment matrix that suggests protective measures that OSHA believes will reduce the risk of anthrax exposure.  More information about OSHA’s matrix can be found at www.osha.gov.
 
If you have any questions regarding these or any other employment law issues please feel free to contact one the authors listed at the top of this publication.

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