What Every Employer Should Know: Employment Law Basics


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Here is a helpful overview of employment law basics, designed to help employers navigate the waters of employee relations. By Bob Hoffer, DBL Law

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What Every Employer Should Know: Employment Law Basics

  1. 1. What Every Employer Should Know Employment Law Basics May 14, 2013 Robert Hoffer, Esq. Dressman Benzinger LaVelle psc rhoffer@dbllaw.com (859) 341-1881
  3. 3. Permissible & Non-Permissible Interview Questions…  EDUCATION - Questions regarding education/training are acceptable if there is a business reason - Employer should not require a higher level of education than necessary
  4. 4. Permissible & Non-Permissible Interview Questions…  MARITAL STATUS - Questions regarding marital status, pregnancy, future child bearing and children are illegal
  5. 5. Permissible & Non-Permissible Interview Questions…  DISABILITY - Cannot ask if person has any disability - Cannot ask about previous workers’ compensation claims - Can inquire whether applicant can perform essential functions - Can inquire whether applicant can meet the requirements of the employer’s work hours, overtime hours and attendance policies
  6. 6. After the Interview…  Review application  Review interview notes  Follow through with reference checks and confirmation of educational background  Be consistent with all applicants  Retain applications and all notes for one year  Do not make promises or guarantees for job  Offers (verbal and in writing) should be consistent  Do not want to change at-will status
  9. 9. Document Poor Performance  Maintain a cumulative record of ongoing employee performance  Tell employees the consequences of failure to improve  Document employee warnings & assessments  Document attendance & tardiness  Document your expectations
  10. 10. Personnel Documents  In legal/administrative proceedings, documents are discoverable  Focus on facts, not opinions or conclusions  Avoid off-hand comments about age, sex, religion, etc.  Do not send strategy in e-mails
  11. 11. Employee Response to Discipline  Employee should be given opportunity to respond  Employee should be interviewed and this should be documented  Employee should be presented with the facts
  12. 12. How to Document Correctly  Date the document with month, date and year  List the name and job title of individuals present in a meeting  Refer specifically to a policy if applicable  Avoid personal opinions or beliefs  Avoid sarcasm  Preparer need sign and print name  Complete documents close to time of the event
  13. 13. Employee Evaluations  Evaluations should be done regularly  Reviewed by employee & supervisor  Signed by employee  Signature does not have to signify that employee agrees, only that it was reviewed by employee & supervisor  Allow employee to write a response
  14. 14. Tips for Good Evaluations  Remove subjectivity if possible  Written statement of performance should be included on appraisal  If ranking system is used, give written description to support ranking  Results should be reviewed with employee and employee should sign  Refusal to sign should be documented with a witness  Be honest
  15. 15. Steps for Termination  All terminations should go through HR and be pre- approved  Employee should be notified of termination in person with at least 2 company representatives present  Do not apologize to employee  Be straightforward, compassionate & sincere  Tell the employee the basis for the termination  Say no more than is necessary  Document the termination including employee’s reaction
  16. 16. Giving References  All references go through HR  Best Policy - verify dates of employment and give no other information  Bad reference could result in defamation action against employer  No duty to advise of employee’s shortcomings  Have one person responsible for reference checks (HR)  Letter of recommendations should not be done  Be wary of LinkedIn recommendation
  17. 17. Discrimination  Ohio is an employment at-will state  Discrimination laws and public policy are exceptions to employment at-will  Examples of federal and state discrimination laws  Title VII  Age Discrimination in Employment Act  Americans with Disabilities Act  Family and Medical Leave Act  State civil rights laws
  18. 18. Discrimination  Cannot discriminate in any terms of employment on basis of: - Age (over 40) - Sex - Race - National origin - Religion - Disability - Veterans’ status
  19. 19. Title VII of the Civil Rights Act of 1964  Applies to employers with more than 15 employees  Prohibits discrimination on the basis of race, color, sex, national origin and religion  Applies to hiring, discipline, discharge, benefits and other terms and conditions of employment  300 day statute of limitations with EEOC for federal law
  20. 20. Religion Discrimination  The employer may not discriminate as to other terms and conditions of employment (i.e. salary/benefits) based on an employee’s religious belief  Employers must accommodate sincerely held religious beliefs of an employee  Title VII protects unconventional as well as traditional beliefs  An employer may not coerce employee participation or non-participation in religious activities
  21. 21. The Sick Employee ADA/FMLA Issues
  22. 22. Sick Employees - Beware  Be knowledgeable of FMLA/ADA issues  Can terminate sick employees for violating attendance policies if ADA and FMLA do not apply
  23. 23. Disability Americans with Disability Act  Employers may not discriminate against qualified individuals who, with or without reasonable accommodation, can perform the essential functions of the job
  24. 24. Disability Discrimination  Definition of a disability:  Substantial impairment of a major life activity  A record of such a disability  Regarded as having such an impairment  Major life activities:  Caring for oneself, performing manual tasks, walking, breathing, seeing, hearing, speaking, learning, working, eating, sleeping, bending, reading, concentrating, thinking and communicating  It is a vague definition that has created a lot of litigation
  25. 25. Disability Discrimination  Reasonable accommodations must be given if requested  These may include:  Modified policies and procedures  Modified equipment  Part-time or flexible schedules  Additional leave  Transfer to a vacant position  Reassignment of non-essential functions  A determination of accommodations should be done for each disabled employee.  Must engage in interactive discussion
  26. 26. Whose Responsibility is it to Request/Identify Accommodations?  It is the employee’s responsibility to request a reasonable accommodation such as leave time  Employers should not ask or assume an employee has a disability or needs an accommodation unless the need is obvious  Employers should focus on job performance not what may be causing poor job performance
  27. 27. Protecting Against Disability Discrimination Claims…  Once the employee requests an accommodation, the employer must engage in an interactive process with the employee  Purpose of interactive process is to identify precise limitations resulting from disability and potential accommodations  Document requested accommodations and offers made by the employer  Ask employee to provide request for accommodation in writing  All requests need not be granted but must be considered
  28. 28. Family & Medical Leave Act “FMLA”  This Act provides eligible employees up to 12 weeks of job-protected leave annually to use for  Pregnancy  Prenatal care  Serious health conditions of the employee or his/her immediate family  An employee must physically work:  1,250* hours (average of 25 hours per week) during the 12 months prior to the leave  Work at a location where at least 50 employees are employed within 75 miles *1250 hours is actual hours worked (exclude vacation, sick time, etc.)
  29. 29. Reinstatement  Employee must be reinstated to same duties, rights, benefits and pay.  This includes same shift unless employee agrees to different start/end time  Must hold employee’s job
  30. 30. Serious Health Condition…  Inpatient care for any length of time  Absence greater than 3 days  Two visits to a health care provider or  One visit and ongoing treatment  Pregnancy or prenatal care  Chronic condition (e.g. asthma)  Must see provider at least 2 times per year  Permanent or long-term condition (Alzheimer’s)  Condition that requires multiple treatments (cancer/chemotherapy)
  31. 31. Military Leave  Military leave  Deployment – leave to get family and service member ready (12 weeks)  Care for injured service member (26 weeks)
  32. 32. Discipline or Terminate with Caution!  When, how and under what circumstances may an employer discharge the employee for absenteeism?  Cannot include FMLA time in absences or time that should have been FMLA time  FMLA protection does not extend to any dishonest acts an employee might perform in connection with FMLA leave  Violation of company policy  Misuse of leave  Moonlighting
  33. 33. Medical Certification  Employers can request medical certification from a health care provider  Always request a certification  Certification can come from a doctor, chiropractor, midwife, etc.  Must notify employee that certification is required  Once certification is returned, employer must send second notice confirming leave (Designation Notice)  If no certification is returned, may count it as an absence
  34. 34. Individual Liability & Your Protection  You can be held personally liable, even if you are doing your job!  Use caution in dealing with attendance issues  Supervisors should consult with HR to get clearance for any disciplinary action against someone who has taken or has requested leave
  36. 36. Harassment  Federal and state laws prohibit harassment on basis of race, color, sex, national origin, religion, disability and age  It is more than sexual harassment  It is a broad definition
  37. 37. Two Forms of Harassment  Quid pro quo (this for that)-some benefit of employment in exchange for a sexual favor.  Hostile Environment (most common)  Conduct that is severe or pervasive to alter the conditions of employment  Unwelcome conduct  Can be on basis of race, sex, disability, age, religion or any other protected category
  38. 38. Hostile Work Environment Courts consider the totality of circumstances  How often were the comments and/or touching?  Was one person in a supervisory capacity over the other?  How severe or egregious were the comments and/or touching?  What is the tenure of the employees?  Have there been other complaints about the same person?  Does either person have a motive to lie?
  39. 39. Courts are more likely to find hostile work environment where there is:  Pornography  Vulgarity  Touching  Sexual propositioning  Degrading comments  Embarrassing or personal questions  Sexual jokes  Terms of endearment
  40. 40. Discussions in Workplace  Employees should not be discussing items of a sexual nature  Sexual banter and joking is not proper in the workplace  Never assume any discussion is private with another employee
  41. 41. Harassment Policy  Written procedure for employees, clients or visitors to file complaints  Employees should put the complaint in writing  This writing is for the protection of the employer and to allow a complete investigation into all allegations  If employee refuses, second best option is to write down complaint and have employee sign
  42. 42. Harassment Policy  More than one person should take complaints  Confidentiality cannot be promised  However, only those with a need to know should be involved  It is very important to confine the investigation as much as possible  The fewer people involved, the less liability
  43. 43. Reporting Harassment  When a supervisor or manager receives a complaint, he/she should immediately notify HR or management  Once a complaint is stated, it MUST be investigated-no privacy in complaint  A company cannot ignore a complaint even upon request from the employee
  44. 44. How a Complaint is Handled  HR/Management will:  Obtain a written complaint from the complaining employee  Investigate the allegations by reviewing the facts, interviewing the persons involved and any witnesses  Ask the person complaining what the preferred resolution is  Important to get details: where, when, who  Obtain any other evidence (notes, e-mails, etc.)
  45. 45. Harassment  Employer’s Responsibility:  Proper investigation and resolution (even post- termination)  Take ALL complaints seriously  Follow the company’s policy  Schedule a follow-up meeting with person complaining  Assure that harassment has stopped  Assure that no retaliation has occurred
  46. 46. Investigation Notes  The investigation notes are not privileged and completely discoverable  Documents may show up later at legal/administrative proceeding  Focus on facts, not opinions or conclusions
  47. 47. Retaliation  If an employee makes a complaint of harassment, he/she has legal protection from retaliation  Employees cannot suffer an adverse action because of the harassment complaint  All witnesses must be told not to discuss the investigation  If employees are discussing the complaint, discipline should occur  The alleged harasser must be told not to discuss the complaint
  48. 48. E-mails & Text Messages  E-mails and texts are discoverable in legal proceedings  Do not use e-mail to report harassment or discuss a harassment complaint  Employees should not be using work e-mails to forward jokes or anything inappropriate  Employees should not use text messages to send inappropriate messages  Counsel employees who are using e-mail or texts inappropriately
  49. 49. Social Media  Use of Facebook with employees is increasing  Facebook posts can be problematic  Postings on Facebook or other sites can be the basis for a harassment claim  Public information can be basis for discipline
  50. 50. Workplace Etiquette for Employees  Be Professional  Consider whether you would want your remarks quoted or your actions videotaped  Consider whether you want others to read your e-mails  If not, reconsider whether your behavior is appropriate  Be Courteous  No obscene language  No dirty jokes  No terms of endearment NO TOUCHING!
  51. 51. Social Media Issues
  52. 52. Twitter, Facebook, MySpace, LinkedIn and Other Social Media  Can employers regulate what an employee posts on the Internet if the posting is done while off-duty?  Should be some connection between off-duty conduct and impact on employer  There are many factors to consider  It depends on:  where the information is  what the information is  what type of employer you are
  53. 53. Laws That May Restrict Use of Social Media  There are federal and state laws that come into play  National Labor Relations Act  Protects the rights of employees to form unions, engage in collective bargaining, organize strikes and engage in concerted activities  If activity is concerted, it is protected.  To be concerted, it must be related to an ongoing labor dispute and must not be disloyal, reckless or maliciously untrue  An example would be employees complaining about wages or work conditions or attempting to unionize  Applies to union and non-union employers
  54. 54. Thank you!