Employment Legal Issues

1
Employment Legal Issues

• Beginning, Managing Ending
• Employment Relationships
• Amy Adelman
• Beth Clark-Morrison
• Office of the General Counsel
• Emory University
• School of Medicine Department Administrators
  Training Program
  
• November 3, 2006
• 1230 p.m. 130 p.m.

2
Goals

• Overview of Relevant Laws Know the playing
  field
  
• Hiring Decisions You Will Not Regret
• Managing Employee Performance/Avoiding Legal
  Landmines
  
• Termination without Litigation

3
Knowing the Playing FieldFederal and State Laws
4
Title VII of the Civil Rights Act

• Prohibits discrimination on the basis of race,
  color, religion, sex and national origin
  
• Includes pregnancy and sexual harassment
• Prohibits retaliation
• Requires reasonable accommodations for genuinely
  held religious beliefs and practices

5
Title VII prohibits sexual harassment

• Quid Pro Quo harassment
• decisions are based on submission to or
  rejection of unwelcome sexual advances
  
• Hostile Environment
• unwelcome conduct of a sexual nature that is
  sufficiently severe or pervasive and unreasonably
  interferes with an employees job performance or
  creates an intimidating, offensive or hostile
  work environment
• Supervisors generally have a duty to investigate
  allegations of sexual or other harassment and to
  ensure a harassment-free work environment

6
Age Discrimination inEmployment Act (ADEA)

• Prohibits discrimination against people age 40 or
  over
  
• Prohibits age-based harassment
• Prohibits retaliation
• Court may find discrimination based on age even
  if both employees/applicants are over 40

7
Americans with Disabilities Act(ADA)

• Prohibits discrimination against a qualified
  individual with a disability who can perform the
  essential functions of the job with or without
  reasonable accommodation
• Requires employers to make reasonable
  accommodations, such as unpaid leave, change in
  work schedule, transfer to a vacant position

8
What is a Disability?

• Physical or mental impairment that substantially
  limits a major life activity
  
• Record of such an impairment
• Perceived/regarded as having such an impairment
• Examples alcoholism, hearing or visual
  impairments, HIV status, diabetes, mental
  impairments
  
• Disability is broadly defined.

9
Family and Medical Leave Act (FMLA)

• Requires covered employers to provide eligible
  employees up to 12 weeks of unpaid leave during a
  twelve month period for
  
• Birth or adoption of child
• Employees serious health condition
• To care for spouse, child or parent with a
  serious health condition
  
• Intermittent leave may be necessary
• Burden generally on Employer to offer FMLA

10
Uniformed Services Employment and Reemployment
Rights Act (USERRA)

• Covers employees who are called to military
  service/training
  
• Restoration rights upon return from service
  (rights differ based on length of service)
  
• Includes an escalator clause put the employee
  in the place they would have been (raises,
  promotion) but for military service

11
Other

• 42 USC 1981
• National Labor Relations Act
• Workers Compensation on the job injuries
• Fair Labor Standards Act
• State law theories invasion of privacy,
  defamation, breach of contract, negligent hiring,
  negligent supervision, assault battery

12
Whistleblower Laws

• Protects employees who participate in
  proceedings under such statutes as the Fair Labor
  Standards Act, National Labor Relations Act,
  Occupational Safety and Health Act, Clean Air
  Act, Medicare/Medicaid Anti-kickback Statute,
  False Claims Act. Employers may not discharge,
  refuse to hire, harass, or otherwise discriminate
  against a person because of such activities.

13
HIRING Decisions YouWill Not Regret

• Key Find the right person for the job by
• Appropriate interviews, careful consideration and
  thorough background checking
  
• Consistent fact-gathering process
• Not over-estimating ability to prevent history
  repeats
  
• Avoiding the warm body syndrome

14
HIRINGInterview Topics

• General Rules
• Pre-employment interviews may include any
  question which is job-related and designed to
  give interviewer knowledge of applicants
  qualifications for the vacancy
• If interviewer does not have a legally
  permissible reason to use requested information,
  interviewer should not ask

15
HIRINGInterview Topics

• Topics that should be avoided
• Gender/Marital Status
• Are you married/engaged/divorced/dating?
• Is Miss, Mrs., or Ms. appropriate?
• What is your spouses occupation?
• What are the ages of your children?
• Do you plan to have additional children?
• Would you return to work after having children?
• What are your childcare arrangements?

16
HIRINGInterview Topics

• Topics that should be avoided
• Age
• What is your age?
• How long do you plan to work before retiring?
• Religion
• What church do you attend?
• Do you always wear that head scarf?

17
HIRINGInterview Topics

• Topics that should be avoided
• Race
• What is your race?
• How do you feel about workforce diversity?
• National Origin/Citizenship
• What kind of name is that?
• Where were you born?
• What is your citizenship?
• Permissible to ask Are you either a citizen of
  the U.S. or otherwise legally authorized to work
  in this country?

18
HIRINGInterview Topics

• Health/Medical Information
• ADA prohibits employers at the pre-offer stage
  from asking an applicant whether s/he has a
  disability or about the severity of any
  disability.

19
HIRINGInterview Topics

• ADA-related topics that should be avoided
• Do you have any medical conditions?
• Is there any health-related reason that you may
  not be able to perform the job for which you are
  applying?
  
• How many illness-related absences did you have
  last year?
  
• Are you taking any prescription drugs?
• Have you ever filed for workers compensation
  insurance?
  
• Have you ever been treated for drug addiction or
  alcoholism?

20
HIRINGInterview Topics

• ADA-appropriate lines of inquiry
• Does applicant meet the specific pre-requisites
  for the position (e.g., degree, work experience,
  license)?
  
• If applicant reveals or has obvious disability,
  the issue can be carefully discussed pre-offer.
  Best to avoid/limit topic.
  
• Post-conditional offer, the candidate may be
  asked if s/he can perform essential job functions
  with or without reasonable accommodation for any
  impairment

21
HIRINGMedical Exams

• Pre-Offer Medical exams are unlawful.
• Post-Offer Medical exams are lawful if all
  employees in the job category must undergo same
  exam, exam is business-related and medical
  information is kept confidential.

22
HIRINGInterview Topics

• Military Obligations
• No future military service obligation
  questions.
  
• Credit History
• No prior bankruptcy or garnishment questions.

23
HIRINGBackground Checks

• Thoroughly check backgrounds of finalists
• Invest enough time in this process
• Feedback from references and prior/current
  supervisors
  
• Find people who will share information
• Google individual
• Best predictor of future conduct is past conduct

24
HIRINGCriminal Background Checks(if applicable)

• Prior convictions may be considered but not an
  absolute hiring bar
  
• Other mandatory considerations
• Nature of job
• Nature and seriousness of offense and
• Length of time since conviction
• Arrests, without convictions, may only be taken
  into consideration if employer has reasonable
  evidence that the person actually engaged in the
  conduct for which s/he was arrested

25
HIRINGBackground Checks

• Negligent Hiring Claims
• Thorough reference checking helps to eliminate
  claims
  
• Scope of check should be commensurate with risk
  to the public
  
• Tension between not investigating enough
  (negligent hiring claim) and being too intrusive
  (federal discrimination laws)

26
HIRINGEmployment Offers

• Proper authority
• Offer in writing
• Should state that the employment is at will and
  terminable at any time for any reason (for
  non-faculty)
  
• Use Deans Office templates for offer letters to
  faculty
  
• Refer to employee as a regular, full-time, or
  part-time employee, rather than a permanent
  employee
  
• Do not indicate a specified term/length of
  employment
  
• Quote the wage in the smallest appropriate
  increment (hourly or monthly rate)
  
• Reference any contingencies

27
Managing Employees/Avoiding Landmines

• Communicate expectations dont expect your
  employees to be mind-readers.

28
Managing Employees/Avoiding Landmines

• Give honest, timely and fair performance
  appraisals

29
Things NOT to Say in Performance Appraisals or
Other Documentation

• Do not refer to an employee who has taken FMLA
  leave as unreliable or not dedicated
  
• Do not describe an employee who has filed a
  complaint as disruptive or as having a bad
  attitude
  
• Dont describe an older worker as lacking
  energy or slowing down (and dont urge
  employees to retire)!
  
• Dont include anything you wouldnt be
  comfortable explaining to a jury
  

30
Managing Employees/Avoiding Landmines

• Treat employees with respect

31
Managing Employees/Avoiding Landmines

• Document, Document, Document!

32
Managing Employees/Avoiding Landmines

• Goals of Documentation
• Define expectations
• Explain, as specifically as possible, how
  employee is not meeting expectations
  
• Explain consequences of continued failure to meet
  expectations
  
• Provide opportunity for improvement
• Offer assistance if needed
• Avoid termination, but if termination is
  ultimately necessary, the documentation will show
  that we have been fair

33
Managing Employees/Avoiding Landmines

• Dont avoid problems.
• They just become bigger problems.

34
Managing Employees/Avoiding Landmines

• Dont diagnose. Discipline!
• (FSAP wont turn your underperforming employees
  into star performers!)

35
Managing Employees/Avoiding Landmines

• No mandatory referrals to FSAP
• Make sure employee is aware of available
  resources
  
• It is ultimately the employees decision
• Dont inquire as to whether employee went to
  FSAP
  
• Special rules apply in fitness for duty
  situations only used to determine if employee
  is a danger to self or others/fit to perform
  essential functions of the job

36
Managing Employees/Avoiding Landmines

• Dont take action (or inaction) based on
  perceptions
  
• She wont improve. Shes too paranoid to be
  productive.
  
• He wont respond to constructive criticism
  because hes passive-aggressive.

37
Managing Employees/Avoiding Landmines

• Dont retaliate!

38
Managing Employees/Avoiding Landmines

• Dont ignore complaints, even if employee
  requests confidentiality.

39
Managing Employees/Avoiding Landmines

• Dont ignore requests for accommodation
• Whose responsibility?
• What constitutes a request?
• Whats reasonable?

40
Managing Employees/Avoiding Landmines

• Call for help when
• An employee requests an accommodation or special
  treatment
  
• An employee mentions sexual or other
  harassment
  
• An employee complains of unfair treatment
• You need to discipline an employee who has filed
  a complaint
  
• An employee needs a medical or personal leave of
  absence
  
• Any time you find yourself in unfamiliar territory

41
Managing Employees/Avoiding Landmines

• Assume every e-mail you write to or about an
  employee may be seen by a jury someday.

42
Managing Employees/Avoiding Landmines

• No good deed goes unpunished.

43
TERMINATIONThe Rationale

• At-Will Doctrine Discrimination/Retaliation
  Exception
  
• Typical Reasons for Termination Desire
• Poor work quality
• - unable to perform job
• - motivational issue
• Misconduct
• - almost always a motivational issue
• Fairness Consistency (in policy and
  application) Matter
  
• Thoroughly Investigate Facts

44
TERMINATION Termination Worthy?

• Illegal Bias Risk Analysis
• Is employee in a protected class?
• Is replacement in a protected class?
• Has employee raised prior discrimination,
  harassment, or compliance complaint?
  
• Is termination related in any way to protected
  class or prior complaint?
  
• Considering termination because employee is a
  complainer or disruptive?
  
• Is employee long-term?

45
TERMINATIONTermination Worthy?

• Supervisors Responsibilities
• Has policy/expectation been consistently
  applied?
  
• Has employee been progressively disciplined/given
  ample opportunity to address issue?
  
• Has issue, prior warnings and opportunities to
  improve been documented?
  
• Are performance evaluations honest and supportive
  of termination?
  
• Is this a Lengthy Tolerance, then
  Quick-Strike scenario?

46
TERMINATIONTermination Worthy?

• Supervisors Responsibilities
• Options in lieu of discharge?
• Mislabeled RIF?
• Grey Book requirements?
• Comfortable explaining discharge to Dean,
  President, Board and/or jury?

47
TERMINATIONDelivering the Message

• Very emotional for employee
• Delivery influences decision to sue
• Face-to-face private meeting is best
• Two supervisors (or supervisor HR) present

48
TERMINATIONDelivering the Message

• Unequivocally state termination
• Calm, courteous, respectful, business tone
• Keep meeting short
• Give employee chance to speak but do not debate
• Be prepared to discuss COBRA rights and final
  paycheck or set up appointment with HR
  
• Discuss return of Emory property and collection
  of personal property
  
• Avoid security escorts to car