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JB Umphrey
JB Umphrey, Attorney
Category: Legal
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Experience:  Explains legal matters based on 14+ years experience.
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A co- worker of mine made a claim to HR that I called her a

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A co- worker of mine made a claim to HR that I called her a racial slur a few months ago. What are my rights with in slander and reversed racisim to protect myself when i go into this meeting with HR. I work in Las Vegas, NV?
Submitted: 2 years ago.
Category: Legal
Expert:  JB Umphrey replied 2 years ago.
Thank you for using JustAnswer!

I am sorry to learn of these circumstances. Please clarify: do you belong to a union?
Customer: replied 2 years ago.

no i do not belong to a union. this employee though is up for termination she has 19 previous write ups, where i have none. I am now the fifth supervisor she has accused of being racisit.

Expert:  JB Umphrey replied 2 years ago.
Thank you.

In Burlington Industries, Inc. v. Ellerth,XXXXX 2257 (1998), and Faragher v. City of Boca Raton,XXXXX 2275 (1998), the U.S. Supreme Court made it clear that employers are subject to vicarious liability for unlawful harassment by supervisors. This is why it is in the employer's interest to investigate all claims of unlawful harassment.

Just because the employer does an investigation does not mean that the employer believes that harassment occurred. Rather, the employer is investigating to see if the harassment actually occurred.

The standard of liability set forth in those two court decisions is premised on two principles: 1) an employer is responsible for the acts of its supervisors, and 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

In order to accommodate these principles, the Court held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action. However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements:

(1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
(2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

What does this have to do with you? Well, it shows that you do not have any independent rights as the supervisor. Rather, the employee has the right to report claims of illegal harassment and the employer has the legal responsibility to investigate and, if necessary, take corrective action.

The only thing that you have to do is to cooperate with the employer's investigation.

If it turns out that the employee made it up and filed a bogus claim, that's between the employee and the employer. If it wants, the employer can discipline the employee for making a bogus complaint. You have no say/control over that.

How do you protect yourself? Tell the truth and cooperate with the investigation. Don't let your buttons get pushed. Don't be upset that the employer is doing an investigation. The U.S. Supreme Court wants employers to investigate all claims.

It has been my pleasure to assist you today with your information needs. If you have a follow-up question, please reply and ask it.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
Customer: replied 2 years ago.

What about the employeer providing representation for me during the meeting. a Co worker of mine informed me that i could have an adversary party is that correct?

Expert:  JB Umphrey replied 2 years ago.
The law does not require the employer to provide you with representation during the meeting.

Commonly, if an employee is a member of a union, their union rep would be with them during such a meeting. That is a part of the union contract with the employer.

However, since you're a supervisor, I am assuming that you are not a member of a union.

If you have a follow-up question, please reply and ask it.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
Customer: replied 2 years ago.
correct I am a supervisor and this is the right to work state unions are not always a requirement. This company has no union for any employee in the state of nevada. I was looking at NRS 614.090, 614.100, and 614.110 about the employeer and representation of adversayr parities in labor disputes is this still only for those represented by a union.
Expert:  JB Umphrey replied 2 years ago.
The statues you cited involved "organized labor." That means when a union is involved. Those statutes do not apply in the circumstances you've described.

If you have a follow-up question, please reply and ask it.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
Customer: replied 2 years ago.
ok thank you for clarifying that. I have one more question for you. What about the time frame of the supposed incident? this employee claims that i made a racial slur two months ago and she is just now reporting it when she is up for possible termination. For example a nother supervisor reported this same employee sleeping on the job a week after she was caught and due to the lapse of time frame the supervisor was unable to write her up for the infraction.
Expert:  JB Umphrey replied 2 years ago.
Thank you for the follow-up. I'm not sure what your question is. If you can clarify what your question is, I'll be happy to address it.
Customer: replied 2 years ago.
I was asking if the time frame from the supposed incident (two months ago) to the time she reported it can have any effect on any action taken by HR? I gave you the example of her sleeping because it took the other supervisor one week before reporting it and it was dismissed where as her complaint about me supposidly took place two months ago.
Expert:  JB Umphrey replied 2 years ago.
The timing will not have any impact on the action taken by H.R. if H.R. determines that the complained of events actually did occur.

However, depending upon the circumstances, an employee's failure to promptly report illegal harassment can go to the employee's credibility and makes it less likely that the employer will believe the employee's claims. "Stale" complaints are much harder to investigate because employees' memories are not as good.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
Customer: replied 2 years ago.
well thank you in taking the time to answer my questions and clarifying a few things for me.
Expert:  JB Umphrey replied 2 years ago.
You are very welcome!

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
JB Umphrey, Attorney
Category: Legal
Satisfied Customers: 20232
Experience: Explains legal matters based on 14+ years experience.
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