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Evacuation plans. Building pass cards. Employees called up for military duty. Islamic workers harassed by office mates. As a tense and frazzled United States continues in its state of high alert, there is little that is not affected. For private industry, a whole host of new or suddenly complex problems and questions have arisen in the wake of Sept. 11. “There are a lot of things that are changing or that are going to change,” says Harold “Hal” Coxson Jr., an employment lawyer at Ogletree, Deakins, Nash, Smoak & Stewart in Washington, D.C., who says his office has been “inundated” with calls from corporate clients. “The events of Sept. 11 will have a dramatic impact on the employment relations field, in some ways that we haven’t even thought of yet.” Companies are trying to assess what their obligations are to individual workers and to law enforcement, and what they must do or refrain from doing to avoid potential liability. “The number one concern is security of people in the facility and the security of whatever is being produced,” says Quentin Riegel, deputy general counsel of the D.C.-based National Association of Manufacturers. Security worries are wide ranging — from how to get employees out of the buildings and safely home in the event of another terrorist attack to how to prevent an attack on the building itself. “In Washington, most offices didn’t evacuate their employees and didn’t have any plans in place,” says Madonna McGwin, an employment lawyer at Holland & Knight in Washington, D.C. “They want to now know, ‘How do we better protect the employees in our office?’ “ McGwin helped one of her companies through a situation in which an employee wanted to bring a weapon to work for protection, a violation of company policy. McGwin recommended the company stick to its policy, but that it — as well as other firms dealing with problems stemming from the attacks — offer counseling to frightened employees as well as discussions about emergency procedures and security measures. Experts are recommending that companies review or create emergency evacuation plans and building security procedures. Certain industries have long done background checks or required identification badges for buildings and facilities. Defense Department contractors to pharmaceutical labs to computer manufacturers are likely to already have security clearances, background checks, or other safety precautions in place. But many companies want to do a little more — run another background check on current employees, begin issuing identification cards, or find ways to tighten existing security practices. And companies that didn’t use such methods before are now looking into them. BALANCING ACT For years, courts have found companies liable for negligent hiring or negligent retention — when a company hires or keeps someone on the payroll with a history of violent or criminal behavior. Companies have faced that legal theory in situations where workers, who had criminal backgrounds or were inadequately screened for their jobs, attacked or harmed fellow employees or customers. But there is a limit to what employers can explore in prehiring screenings. Anti-discrimination law bans questions about religion, ethnicity, or national origin in job interviews. Experts say that companies must be careful to apply equally to all job applicants any beefed up prejob screening. Companies can’t, for example, run criminal background checks only on their Middle Eastern job applicants. “The best answer is not to discriminate,” says Peter Susser, a D.C.-based employment lawyer with Littler Mendelson. “You have to take your time and investigate everyone you are going to be hiring.” Discrimination claims present a huge minefield for employers. Acts of violence, harassment, and intimidation against Arab-Americans have been reported all over the United States. And lawyers around Washington, D.C., are already seeing evidence that discrimination stemming from the terrorist attacks is developing into a problem in the workplace. Debra Katz, who represents employees with harassment and discrimination claims, says she has fielded several phone calls in the past few weeks from Muslims who say they were fired from their jobs after the attacks. “It looks to us that people are being discriminated against on national origin, race, and religion,” says Katz, a name partner at D.C.’s Bernabei & Katz. “When events like this occur, people behave in emotionally retaliatory ways and by striking out. We are seeing it.” Connie Bertram, a management-side lawyer at Venable, has already counseled one company through a complaint alleging anti-Arab discrimination in the workplace and another company where a worker publicly expressed support for the terrorist attacks. “There are a lot of tensions,” says Bertram. “Employers need to be observant and monitor the workplace, and take complaints very seriously.” IMMEDIATE RESPONSE The Equal Employment Opportunity Commission has moved quickly to warn private industry that it is keeping its eye out for any Arab-American-orientated workplace discrimination. Only three days after the attack, newly appointed EEOC Chair Cari Dominguez issued a plea for tolerance and encouraged private businesses to reiterate their anti-discrimination policies and complaint procedures. And while law enforcement in recent weeks has continually urged the public to act as the police’s eyes and ears, companies have to act with a little more caution. Experts are counseling managers to help with investigations and to turn over anything suspicious, but to be wary of reporting Arab-American employees to the Federal Bureau of Investigation without good cause. “If you have information that you believe indicates some behavior that is questionable, it would be wise to seek assistance from law enforcement,” says William Kilberg, an employment lawyer at Gibson, Dunn & Crutcher. “At the same time, I wouldn’t do it because you overreact to the fact that someone is from Iran or Iraq or is Palestinian.” Even for companies that have avoided discrimination or serious security problems, there are less frightening, but even more unfamiliar issues that have popped up since Sept. 11. As the National Guard and various military reserves have been activated, it means that companies are likely to be wading through new territory with the Uniformed Services Employment and Re-employment Rights Act, which governs the job status of reservists and veterans. Employment shops across the United States have been drafting memos and client letters for baffled human resource personnel as well as hosting Web conferences on the law’s implications. The act requires employers to rehire those who have been called up for military service and regulates what rights these workers have to health insurance, pension plans, and other benefits. Ogletree Deakins was contacted only two days after the attacks by a client company that had numerous reservists on the payroll and wanted to discuss its options and responsibilities. “Some of the employers are making up the difference between military pay and civilian pay,” says Coxson. “Some of our callers are very patriotic and say we want to help these brave men and women, and so they want to go beyond what they are required to do.” Yet for most employers, the most pressing issue, for the moment, is how to recover something that many once took for granted — a sense of safety in the workplace. “We are in new territory,” says McGwin. “Most employers are trying not to overreact. Most employers want to make sure people are OK. They are concerned about their emotional issues. They are concerned that their employees feel comfortable enough to return to work.”

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