In 2011 the EEOC received 99,947 employment discrimination charges. Most involved retalation, race and gender discrimination. You may be named in a lawsuit.
This is another option for an Overview slides using transitions.
EEO is not affirmative action. Refers to no Discrimination or harassment in the workplace. Applies to: recruitment practices, hiring decisions, pay levels, working conditions, training, evaluations, promotions, terminations, benefits, etc.
Note re: sexual orientation not covered by Title VII or ACRA but is included by City of Tucson and ASARCO’s policy (both the separate policy and the labor contract include sexual orientation).Unlawful to discriminate/harass on the basis of:Affiliation: because an individual is affiliated with a particular religious or ethnic group. Ex: individuals who are or are perceived to be – Muslim, Arab, Afghani, Middle Eastern or South Asian (Pakistani, Indian, etc.)Physical or cultural traits and clothing: Physical, cultural, or linguistic characteristics such as accent or dress associated with a particular religion, ethnicity, or country of origin. Ex: harassing a woman wearing a head and/or body scarf.Perception and AssociationHarrah’s case regarding dress.
Employment decisions that discriminate against workers with caregiving responsibilities are prohibited by Title VII if they are based on sex or another protected characteristic, regardless of whether the employer discriminates more broadly against all members of the protected class. For example, sex discrimination against working mothers is prohibited by Title VII even if the employer does not discriminate against childless women.Title VII does not prohibit discrimination based solely on parental or other caregiver status, so an employer does not generally violate Title VII’s disparate treatment proscription if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers.Other examples: Not hiring a female candidate b/c don’t think she can balance work and childcare responsibilities in a demanding position.
Discriminatory. Title VII requires employers to make reasonable accommodations for the religious beliefs and practices of workers. This could include adjusting work hours for workers whose religious beliefs prevent them from working on holy days or Sabbaths, exceptions to work rules such as dress and grooming standards. However, if the request would be an “actual” undue hardship for the employer, i.e., costly, inefficient, unsafe or would negatively impact co-worker’s rights then the supervisor does not have to grant the request. Ex: employer able to enforce no-beard rule for employees working in hazardous environments that are required to wear respirators that cannot fit properly over a beard.
Objective severity of harassment is judged from the perspective of a reasonable person, taking into account the social context in which particular behavior occurs. Whether there is harassment depends on the effect or perception of the receiver, not the intentions of the harasser.
Verbal: repeated sexual innuendos; racial or sexual epithets; derogatory slurs; “off-color jokes,” propositions, threats or suggestive or insulting sounds;Visual/non-verbal: derogatory pictures, cartoons, or drawings; screen savers; suggestive objects or pictures; graphic commentaries; staring; or obscene gestures;Physical: unwanted physical contact including touching; interference with an individual’s normal work movement; or assault;Other: making or threatening reprisals as a result of a negative response to harassment.
Justice Scalia’s Opinion, Oncale v. Sundowner Offshore Servs., 118 S. Ct. 998, 1002, 1003 (1998)
Quid Pro Quo: can be the opposite—I won’t punish you (transfer you to another shift, dock your pay, etc.) if you sleep with me. Hostile environment is a sliding scale: the more pervasive, less serious vs. less pervasive, more serious.Question – Can sexual harassment only be between a man and a woman? (No, there can be same sex sexual harassment.)Can a relationship that starts out consensual turn into sexual harassment? Absolutely. This is a particularly dangerous situation.
The question is whether the conduct is unwelcome. Her burden goes up if it appears that she is welcoming the conduct, but the fact that she participated in lewd jokes will not serve is as bar. Conduct can also become unwelcome.
The Ninth Circuit has concluded that this conduct is prohibited under Title VII. The court held that the sustained taunts, directed at the employee to humiliate and anger him, was sufficiently severe and pervasive to alter the terms and conditions of his employment. This conduct also violates Asarco’s policy, which prohibits harassment/discrimination on account of sexual orientation. Don’s example of a mechanic who picked up a worker and would tell him: “You will be my bitch tonight.” He and his supervisor both were terminated.
It may be. At least one court when presented with similar circumstances reached this conclusion. The court in the last example considered the graffiti a significant exacerbating factor in evaluating the severity of the racial hostility. Discriminatory or harassing graffiti is against the law, against ASARCO’s Policies, and will not be tolerated. If you see graffiti, it is your responsibility to report it and ensure it is immediately removed. It is also your responsibility as supervisors to let your employees know that graffiti will not be tolerated.
Employment practices and policies that have a disparate impact on workers 40 (harm workers age 40 and older more than younger workers) are prohibited unless it is based on a reasonable factor other than age (RFOA). RFOA is an objectively reasonable non-age factor. Ex: police department required applicants for patrol positions to pass physical fitness test to be sure officers were physically able to pursue and apprehend suspects, it should know that such a test might exclude older workers more than younger ones. RFOA if reasonably believed the test measured speed and strength appropriate to the job, and if it did not know, or should not have known, of steps it could have taken to reduce harm to older workers without unduly burdening the department.
- Make notes of problems that you observe. E.g, what the graffiti states, the inappropriate radio chatter, etc. do not joke about harassment, discrimination, protected categories or ASARCO’s policy. Show respect to others and demand that all employees you supervise show respect to othersWould I do/say it in front of my parent, child, spouse, religious leader or management?Would I do/say it in front of people of both sexes, mixed races, mixed religions, mixed ages?Would I want my conduct printed in The Arizona Daily Star?Would I do/say it in front of my parent, child, spouse, religious leader or management?Would I do/say it in front of people of both sexes, mixed races, mixed religions, mixed ages?Would I want my conduct printed in The Arizona Daily Star?
What do you really want to do? (Talk to person and straighten it out – no good will come of that)Call HR and get out of the way.NO RETALIATION
Participation: made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing.Opposition: opposed an unlawful practice. Materially adverse action: an action that a reasonable employee would find materially adverse such that it would dissuade the employee from making or supporting a charge of discrimination. Ex: negative job reference, reassignment with significantly different job duties, change in pay, firing, failure to promote, undeserved performance rating. Retaliation is not petty slights, minor annoyances, simple lack of good manners, glaring, cold shoulder, seating change, supervisor not inviting employee to lunch.
ADA enacted 1990. ADAAA enacted 2008, effective January 1, 2009. Broadened definition of disability in favor of coverage and shall not require an extensive analysis. ADAAA: term substantially limits shall be construed broadly. Impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Individual assessment.
Physical or Mental ImpairmentAny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; orAny mental or psychological disorder, such as an intellection disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.Major Life Activities include:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; andThe operation of major bodily functions, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. Includes the operation of an individual organ within a body system. ADAAA: “Regarded as” focuses on how a person has been treated rather than what the employer may have believed about the nature of the person’s impairment
Positive effects of mitigating measures such as medication or hearing aids (except glasses/contacts) shall not be considered when determining whether an impairment substantially limits a major life activity. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.Individual must have actual disability or record of disability to qualify for an accommodation.
Encourage the supervisors to identify some examples of accommodations they have provided to employees. Ask HR what has been provided at this property.
Discuss reasonable accommodations and the interactive processYou need to consult with HR. If you are not aware of an accommodation and the employee does not have a suggestion, you need to go to HR. You can ask the employee if he is aware of an accommodation. If you find a solution, you inform HR of the selection.
This means that when the employee states that he/she needs an accommodation, the supervisor cannot simply state that one does not exist. There needs to be a back and forth between the employee and the company. The supervisor should involve the HR Department in engaging in the interactive process.
Alcoholics are covered by the ADA. If the employer knows the individual is an alcoholic, then alcoholics are protected under the act. If you are not aware that they are an alcoholic, yes you can discipline and/or discharge the individual. If he states that he is an alcohol, then reasonable accommodations there an accommodation that would allow him to perform the essential functions job. Maybe you could move this individual to an afternoon position to see if his performance improves.
What laws and policies? ADA – is limp a disability? is stuttering a disability? Core Values!
Covers all employers
Applies to employers with fifty or more employees ASARCO measures 12 weeks on a rolling basis. Need not be in a row. ASARCO bargaining unit employees do not have to work 1250 hours to be eligible.
Page 15 – FMLA notification.Page 16 – FMLA eligibilityPage 17 – Medical certification.Page 18 – Designating FMLA leave.Page 22 – Coordinating FMLA leave with other leaves.
What issues does this raise?If he just says he can’t come in today? AbsenteeismIf know chicken pox—Serious Health condition under FMLA? Eligible? Exhausted FMLA leave? Rolling basis? Married to a pediatrician who is off that day?
2008 and 2010 National Defense Authorization Act.
FMLA—If 1st and 2nd conflict, company can get binding 3rd opinion.
Page 13 – medical exam. Direct threat. Also need to think about reasonable accommodations (e.g., breaks to take medication, leave to seek treatment or adjust to medication, a private area to rest after having a seizure, a rubber mat or carpet to cushion a fall, or adjustments to work schedules)
You must treat all medical information confidentially.
FMLA leave is an entitlementBut, under Workers Comp, if you provide light duty and employee refuses, employee loses benefits.ADA—can transfer to light duty but n o duty to create one.
You must treat all medical information confidentially.
You should not complain about any employee’s absence from work if it is due to FMLA protected leave. If you do complain and later take any adverse action against that employee, an inference could be made that you took adverse action against that employee because he or she took FMLA protected leave.Do not make comments about an employee’s FMLA absences in performance evaluations, written memorandums, orally or otherwise. You should not comment about, or mark down an employee for attendance because he or she took FMLA leave. You open the Firm up to liability if you mark an employee down for attendance because he or she took FMLA leave. Under the FLMA, an employee cannot be penalized for taking FMLA leave.
Source: Labor Contract, Article 10, Section C.Confirm with Jim that give the same benefit to salaried and if so, remove reference to bargaining unit.
Source: Labor Contract, Article 10 and AZ law. Will handle same for salaried employees. AZ law does not require paid leave, just time off.
Source: AZ law.
This is another option for an Overview slide.
PRESENTED BY LOCAL HR
Waiting for ASARCO to finish uniform policy
ASARCO is working on a written policy. Tucson ordinance effective April 1, 2012. Primary enforcement—can be pulled over specifically for this violation. Phoenix has had a distracted driving ordinance since 2007Statewide ban was defeated.
Article 4, Section B (current cite? Using Basic Labor Agreement 1/1/07-6/30/10)Not going to investigate a supervisor under this—bargaining unit only.
The complaining employee or union representative having the grievance may or may not be accompanied by his/her union steward. However, employees who are summoned to meet with a supervisor or other representative of the Company for the purpose of discussing possible suspension or discharge of the Employee are entitled to have a steward present and if no steward or union rep is available, the meeting shall be deferred. The employee may be suspended pending the meeting; if do suspend, must make good faith effort to advise union President/Unit Chair or Grievance Chair as soon as possible that day. Supervisor’s Step 1 response does not set precedent.
Positive test levels for alcohol and certain drugs are listed in both policies. Alcohol is .05%. Under Random testing, 25% of the salaried workforce will be tested each year at intervals determined by the CompanyBargaining unit employees have the following rights: (1) disciplinary action taken pursuant to the drug and alcohol testing policy is subject to the grievance and arbitration procedure; (2) right to union representation any time confronted with a consent, interview or test for alcohol or drugs. Bargaining Unit: Employee Assistance ProgramBargaining Unit: Will not test based on anonymous tipsBargaining unit employees who test positive will be offered rehabilitation but can still be disciplined/terminated.
If the employee comes to work impaired, he/she can be terminated because this employee has not come to work prepared to do his/her job in as safe a manner as possible at all times.
This is the language of the policy
Let’s encourage the supervisors to identify signs of impairment. Signs of impairment based on statute and ASARCO’s policy (which added balance, erratic behavior, deteriorating job performance, unable to perform job in a safe manner)ARS 23-493: “Impairment means symptoms that a prospective employee or employee while working may be under the influence of drugs or alcohol that may decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of…(see above)”
Reasonable suspicion testing. This employee should be tested. The supervisor also should take notes of what he/she witnessed because this may be necessary down the road if the employee tests positive for a prescription medication and has a prescription medication. The supervisor’s notes will be critical in demonstrating that the individual was impaired. - May also want to consider an inspection (good lead in to next slide)
We will talk about Conducting Inspections in more detail in a little bit.
Applies to any kind of inspection, not just for drugs and alcohol.
Not true. The company can review your emails at any time.
Employees who want to use these systems for charitable organizations or political or religious purposes need prior written authorization by the Chief Operating Officer.
ASARCO does not have a written policy. Refer all requests for such info to HR. Will only give neutral reference—dates of employment, last position.AZ Blacklisting Statute re: Employment references (ARS s 23-1361): Blacklisting is an agreement or understanding between two employers or their agents, including supervisors, whereby a worker is prevented or prohibited from engaging in a useful occupation. Employers are permitted to give out certain limited information about former employees to prospective employers under the statute. In order to be protected, ASARCO needs to: (1) follow a regular practice as to what is provided; and (2) make sure its supervisors are not acting with actual malice (knowledge the information was false or was provided with reckless disregard for its truth or falsity) or with intent to mislead.Other concerns are Defamation claims—could be personal liability for that. Confidential medical information should not be given out. Maybe ADA issue (drug test is not a medical exam under the ADA but alcohol would be); HIPPA.
Intrusion upon seclusion—reasonable expectation of privacy. Where? Bathroom? Desks? Own locks? But can search. Not reasonable. If don’t expect privacy, why not? Because you’ve told them not to. #4 like defamation.
Not friends, role model, leader/in charge, respectful.
SUPERVISOR TRAINING MAY 2012 Donald R. Gilbert Sherry J. Downer Jessica L. Post FENNEMORE CRAIG, P.C.
What We Will Cover Today • Introduction (10 min.) • Equal Employment Opportunity (75 min.) • Break (15 min.) • Leaves of Absence (20 min.) • Ethics (20 min.) • Privacy (20 min.) • Survival Tips (10 min.)
Protect Yourself and the Company• It is illegal• It is a violation of ASARCO’s policies – Equal Employment Opportunity – Policy Against Unlawful Harassment – Retaliation – Code of Conduct• It degrades its victims and creates an unpleasant and unproductive work place• It creates unwanted notoriety, destroys reputations and careers• It can result in civil and criminal charges against individuals• Investigating and defending charges is expensive and takes a tremendous amount of time for all involved
Equal Employment Opportunity• ASARCO is an Equal Employment Opportunity Employer• What is Discrimination and Harassment? – Discrimination: treating an employee differently because of a protected category; employment practices that have a significant adverse impact on a protected class that is not justified by an job qualification or other business necessity. – Harassment: conduct based on any protected characteristic (not just sex) which creates intimidating, offensive, or hostile work environment or that interferes with job performance. Harassment is a form of discrimination.
Which characteristics are protected?• Race/color • Disability (Physical & Mental)• Religion • Veteran’s Status• Sex • Genetic information• Age • Gender• National Origin/Ancestry • Sexual orientation • Any other classification protected by law • Union membership, citizenship or immigration status (Labor Agreement) 6
Examples of Discrimination• Refusing to hire certain people because of a protected characteristic like age, race, etc.• Giving preferential shift assignments to people because they are a certain sex, etc.• Imposing harsher discipline on workers who belong to a protected category while treating others who commit a similar offense more favorably.
Is This Discrimination? Charmaine, a mother of two preschool-age children, files an EEOC charge alleging sex discrimination after she is rejected for an opening in her employer’s executive training program. The employer asserts that it rejected Charmaine because candidates who were selected had better performance appraisals or more managerial experience and because she is not “executive material.” The employer also contends that the fact that half of the selectees were women shows that her rejection could not have been because of sex. However, the investigation reveals that Charmaine had more managerial experience or better performance appraisals than several selectees and was better qualified than some selectees, including both men and women, as weighted pursuant to the employer’s written selection policy. In addition, although the employer selected both men and women for the program, the only selectees with preschool age children were men. Did the Company do something wrong?
Is This Discrimination? Arif, who is Muslim, prays five times a day. At least two of these prayer sessions occur during work hours. Arif requests that his breaks be scheduled so he can pray at the appropriate times. His supervisor refuses, remarking “we pay you to work, not to pray. Leave the religious observances for your own time.”
What Is Harassment?• Conduct must be unwelcome and sufficiently severe or pervasive so as to alter the conditions of employment and create an offensive or abusive working environment.• The conduct/harassment must be because of a protected category.• Conduct must be subjectively and objectively offensive.
Conduct That May Give Rise ToClaims of Harassment• Verbal: repeated sexual innuendos; racial or sexual epithets; derogatory slurs; “off-color jokes,” propositions, threats or suggestive or insulting sounds;• Visual/non-verbal: derogatory pictures, cartoons, or drawings; screen savers; suggestive objects or pictures; graphic commentaries; staring; or obscene gestures;• Physical: unwanted physical contact including touching; interference with an individual’s normal work movement; or assault;• Other: making or threatening reprisals as a result of a negative response to harassment.
What Is Not Harassment?• Title VII is not intended to be a “general civility code” for the workplace• “Mere offensive utterances” do not constitute sexual harassment.• Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.
What Is Sexual Harassment?• Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: – Submission to such conduct is made a term or condition of employment – Submission to or rejection of such conduct is used as a basis for employment decisions – Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment
What Are The Types Of Sexual Harassment? Quid Pro Quo Hostile Work Environment Sexual favors are Unwelcome sexual sought in return for comments or sexual job benefits or conduct that unreasonably opportunities, (e.g., promotions, pay interferes with work increases, hiring, and performance or creates a terminations) hostile work environment
An employee that yousupervise tells you that aco-worker has beenharassing her for the pastcouple of months. Shetells you that she thinksshe has the situationunder control and isembarrassed about thewhole thing. She asksyou to promise that youwon’t tell anybody. Whatdo you do?
Company Liability For Harassment• For harassment by coworkers or third parties, the Company is liable if it knew or had reason to know of the harassment.• For harassment by supervisors, the Company is automatically liable for harassment that results in a “tangible employment action.”
Company Liability For Harassment Contd.• If no tangible employment action occurs, the Company is automatically liable for harassment by a supervisor unless the Company can show: 1. That it exercised reasonable care to prevent and correct promptly any harassing behavior; and 2. The victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
True or False? There is nothing wrong with a male employee complimenting a female co-employee on her - hairstyle - her attire True____ False____
True or False? A single incident or isolated incidents of offensive sexual conduct or remarks can create a hostile environment. True____ False____
True or False? After work, a group of employees get together for drinks at a bar. While at the bar, one employee makes unwelcome sexual advances to another employee. Such conduct is permissible because it occurs after business hours and away from the office. True____ False____
True or False? A female employee who laughs at lewd jokes at work and who uses sexually explicit language may not later bring a claim of sexual harassment due to a hostile work environment. True____ False____
True or False? A male employee tells his male co-worker a sexual joke within the vicinity of a female co-worker. This conduct is okay because he did not tell the joke to his female co-worker and the joke was welcomed by his male co-worker. True____ False____
True or False? A supervisor must take action when an employee complains of sexual harassment even if there is no witness to the incident. True____ False____
True or False? One male employee that you supervise is frequently referred to by his co-workers as a “her” or a “she.” This employee also has been told that he works “like a woman” and has been referred to on occasion as a “faggot” or a “bitch.” This is not sexual harassment because everybody is of the same gender. True____ False____
Same-Sex Sexual Harassment• Title VII prohibits an employer from discriminating against an individual with respect to compensation, terms, conditions, and privileges of employment, “because . . . of sex.”• If the supervisor’s conduct is directed at an employee because of their sex, i.e., because they are male or female, there can be liability.• This conduct also violates Asarco’s EEO Policy.
True or False? A Hispanic employee uses the restroom, which almost always has graffiti using phrases like “white is right,” “wetback,” and “go back to Mexico.” Supervisors use the same restroom, and the graffiti was not painted over for weeks after it appeared and no public action of disapproval was taken. Similar graffiti also was on the switch boxes and at a couple of other locations. This conduct does not rise to the level of unlawful harassment. True____ False____
Age Discrimination In EmploymentAct (ADEA)• Age discrimination is treating someone who is age 40 or older less favorably because of his or her age.• Applies to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment.• Prohibits intentional discrimination (disparate treatment)• Prohibits unintentional discrimination (disparate impact); policies that are neutral on their face but have a disparate impact on workers 40 and older
HARASSMENT ON THE BASIS OF AGE• It is unlawful to harass someone based on his/her age (i.e, over 40 years old).• Common traps for age-related claims: – Remarks related to age: “old man,” “grandpa,” “getting senile” – Comparison with young work force: “need young thinking ideas,” “can’t teach an old dog new tricks” – Birthday celebrations – “over the hill” decor
Your Responsibilities As Supervisors• Set an example – Do not allow harassment to occur on your watch.• Take all complaints seriously• Report all complaints IMMEDIATELY• ASARCO’S Reporting Policy: Any employee who experiences or observes conduct which he or she believes constitutes discrimination, harassment or retaliation should report this problem to: – Human Resources Manager or Unit Management – James F. Coxon, General Manager, Corporate Human Resources (520) 798-7753 – Ethics & Compliance Hotline (877) 217-4764
Company Response • Prompt Investigation • Confidentiality • Assessment • Action • Monitoring • Balancing Rights
Another supervisor comes to you and tells youthat a female employee under your supervisionhas been telling other employees that you havemade inappropriate sexual references aroundher. What should you do?
Retaliation• It is unlawful and against ASARCO’s policies to retaliate against someone who objects to harassment, reports harassment, or reports any other discriminatory treatment to ASARCO.• Retaliation would include considering this complaint when making any type of employment decision, such as promotion, termination, training opportunity, etc.• Retaliation is now one of the most frequently filed claims.
Americans With Disabilities Act (“ADA”)• Prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.• Requires employers to make reasonable accommodations for the known disability of a qualified applicant or employee.
Who Is A Disabled Individual?An individual with a disability is a person who: • Has a physical or mental impairment that substantially limits one or more major life activities; • Has a record of such an impairment; or • Is regarded as having such an impairment.
Who Is A Qualified individual? A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job.
What Are Some Examples Of ReasonableAccommodations? • Modifying a bathroom so that it is wheelchair accessible. • Modifying equipment in some way that allows the disabled individual to use it. • Providing sign language interpreters for trainings. • Adjusting a desk so that a wheelchair can fit under it.
An employee comes up toyou and says that he can nolonger operate the gearshift because of his arthritichand. You tell the guy thatyou have to let him gobecause, although youwould like to help, youaren’t aware of anaccommodation that wouldallow him to perform hisjob. Is this ok?
Interactive Process The ADA requires the company to engage in an interactive process to determine whether there is a reasonable accommodation available that would allow the employee or applicant to perform the essential functions of the position.
Interactive Process Cont. John is an alcoholic who frequently shows up for work hung over. He is not drunk while at work but he is slow and does not get as much done as other employees on the morning shift because he is hung over. Can you discipline and/or discharge John?
Tom, an employee in another department, walkswith a limp and stutters. Two of Tom’s coworkersmimic Tom’s stuttering and his limp when Tom isnot around. Kathy, a recently hired employee inyour department, is not disabled, but complainsabout the conduct of Tom’s coworkers. What should you do?
LEAVES OF ABSENCE• Workers Compensation• Family and Medical Leave Act• Americans with Disabilities Act• Bereavement• Jury/Witness Duty• Voting• USERRA
Arizona Workers Compensation• A “no fault” system that provides medical treatment and wage continuation benefits to an employee who suffered an injury or illness arising out of and in the course and scope of employment no matter who caused the accident.• Employee receives medical benefits and may receive temporary compensation if eligibility requirements are met. In some cases, an injured employee may also receive permanent compensation benefits and job retraining. Employee may not sue the employer except in very limited circumstances.
Family and Medical Leave Act• Provides 12 weeks of unpaid leave per year to eligible employees for qualifying events. – Employees are eligible if: (1) worked for at least 12 months; and (2) worked at least 1,250 hours in the last 12 months
FMLA Contd.• Qualifying Event 1. Birth or adoption of child or placement of foster child; 2. Serious health condition of employee that prevents him/her from performing essential functions; 3. To care for a parent, spouse or child with a serious health condition; and
FMLA Contd.• Spouses who are both employees – maximum combined leave is 12 weeks if taken for birth, adoption, or foster care placement of healthy child. – Each spouse gets 12 weeks if the leave is for other qualifying reasons.• Company policy does not require paid leave to run concurrently
On Monday morning, anemployee telephones hersupervisor to report thather husband was in a caraccident over theweekend and she will beunable to come to workthis week while she stayshome to take care of him.The supervisor notifiesyou of this phone call.How should yourespond?
An employee under your supervision hasbeen chronically tardy and absent on anumber of occasions without notice. He callsyou Monday morning five minutes after hiswork day has started and tells you he cannotcome in today because his son has thechicken pox. Can you discipline or terminatethe employee?
FMLA-Military “Qualifying Exigency Leave,” any qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a covered military member (called for active duty in the National Guard or Reserves) called to covered active duty are eligible for up to 12 weeks of unpaid leave. 2010 extended coverage to family members in the Regular Armed Forces, and added a requirement that the military member must be deployed to a foreign country “Military Caregiver Leave,” employees who are the spouse, child, parent or next of kin of a covered servicemember (National Guard, Reserves, or Regular Armed Forces), with a serious injury or illness incurred in the line of duty are eligible for up to 26 weeks of unpaid leave. 2010 extended covered servicemember to include recent veterans and expanded the definition of serious injury or illness to include those that resulted from preexisting conditions
Americans With Disabilities Act (ADA)• Requires employers to accommodate a qualified individual with a disability.• Depending on the circumstances, a reasonable accommodation may include – Unpaid medical leave – Modified or part-time schedule (adjusting arrival or departure times, providing periodic breaks, etc.)
NOTIFICATION BY EMPLOYEE• Worker’s Compensation = Immediately• FMLA = 30 days or “as soon as practicable”• ADA = Need for accommodation
MEDICAL EXAMINATIONS• Worker’s Compensation = Employer may require independent medical exam• FMLA = Employer may require second opinion to dispute medical certification• ADA = Employer may require post-offer applicants to take exam; current employees only when job-related and consistent with business necessity
MEDICAL EXAMINATIONS An epileptic employee recently suffered a seizure in the workplace. No one was injured and no property was damaged, but you are concerned about the employee’s ability to work safely. What can you do?
True or False? If an employee asks you why a coworker is not required to lift heavy equipment, you may honestly tell the employee is it because the coworker has a disability that the Company is required to accommodate. True____ False____
True or False? You may require an employee to perform light duty work in lieu of giving him or her FMLA leave. True____ False____
Tom has taken several absences under the FMLA.Your colleagues have voiced frustration that Tomhas been absent so frequently. The end of theyear is approaching, and you have to write Tom’sperformance review.
• Can you also voice your frustration to your colleagues about Tom’s absences?• Can you reference Tom’s absences in his performance review and mark him down, accordingly?
Bereavement Leave• Bargaining Unit employees may request paid bereavement leave, in writing, under the following circumstances. – legal spouse, parent, child or step-child = 5 scheduled shifts – sibling, step-parent and step-siblings, mother or father in-law, grandparent, or grandchild = 3 scheduled shifts Note: 8 hours at Regular Rate of Pay; not considered time worked for purposes of overtime or premium pay.
Jury or Witness Duty Leave• Jury duty or subpoenaed as a witness• Company will pay the difference between the payment received for such service and 8 hours of Regular Rate of Pay.
Time Off To Vote After applying to take leave in order to vote, employees with less than three hours between the opening of the polls and the beginning of their normal work hours or the end of their normal work hours and the closing of the polls may take paid leave from work at either the beginning or end of a shift for such an amount of time that provides three consecutive hours in which to vote.
USERRA Leave• A federal law that protects the job rights, including certain reemployment and health insurance benefit rights, of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System.• USERRA also prohibits discrimination and retaliation against applicants and past and present members of the uniformed services.
Workplace Conduct• Rules of Conduct• Cell Phone Use/Texting• Bargaining Unit Civil Rights Committee• Bargaining Unit Grievance Procedure NOTE: THIS SECTION (THROUGH JUSTICE AND DIGNITY) TO BE DONE BY LOCAL H.R. -- MAY WANT TO MOVE THIS SECTION ELSEWHERE AND WILL NEED TO COORDINATE SUBJECTS WITH JIM’S ETHICS TRAINING.
Rules of Conduct• INSERT RULES OF CONDUCT SLIDES WHEN SINGLE POLICY IS FINISHED
Cell Phone Use/Texting• Using a cell phone while driving or operating heavy equipment is not safe and is prohibited. – For example, multiple states have banned the use of cell phones while driving. – The Department of Transportation also forbids drivers from using cell phones while driving.
Bargaining Unit Civil Rights Committee• Labor Contract established a Joint Committee on Civil Rights at each location made up of an equal number of Company and Union representatives.• Purpose is to review, investigate and resolve civil rights issues• Does not change the normal operation of the grievance procedure• Joint Committee has no jurisdiction to initiate, file or process grievances• Still have a right to file a grievance in accordance with the terms set forth in the Civil Rights Committee policy
Bargaining Unit Grievance Procedure• Step 1: 15 days to present grievance to supervisor who shall decide within 7 days.• Step 2: Present written grievance to Grievance Committee within 7 days of supervisor’s Step 1 response.• Step 3: Employee may appeal Grievance Committee decision to General Manager or his designee within 10 days of Step 2 decision.• Arbitration: International Union Representative may appeal a grievance to arbitration within 10 days of the Step 3 decision.
Bargaining Unit: Justice and Dignity• A bargaining unit employee who is suspended or discharged, and on whose behalf the Union files a grievance within five (5) days after notice, shall remain on or return to the job pending final determination• Does not apply when the offense endangers the safety of the employees or the plan and its equipment including but not limited to certain drug and alcohol, weapons, destruction of Company property, gross insubordination, threatening bodily harm, theft, and Article 5, Section K (Strikes and Lockouts) offenses.
PRIVACY ISSUES• Drug Testing/Reasonable Suspicion• Inspections• Information Systems, Internet and Email• Employment References• Defamation
ASARCO’S Drug & Alcohol Policy• ASARCO is an alcohol/drug free workplace• Employees may not use, sell, manufacture, purchase, possess or transfer alcohol or illegal drugs while on Company property or in Company vehicles.• Violation will result in discipline up to and including discharge; or the withdrawal of a conditional job offer to an applicant.
ASARCO Drug & Alcohol Policy Cont.• All current employees will be tested for alcohol and/or drugs under the following circumstances: – Reasonable Suspicion of Impairment – Return To Work After Six Month Absence – Post-Accident• Salaried employees may be subject to random testing• Employees who test positive will have an opportunity to explain the result to the Company.• Employees may request a split sample which, upon a confirmed positive of one sample, the employee may have re-tested as his or her own expense.
True or False? An employee who takes hydrocodone pursuant to a valid prescription cannot be terminated under ASARCO’s drug and alcohol policy. True____ False____
Legal Medications ASARCO’s policy provides: “Any employee who is currently taking medication of any kind, either over- the-counter or prescription, which may affect the employee’s ability to perform his or her job in any way, or may present a safety risk, is to report such drug use to the Company to ensure the safety of themselves, other employees and Company property.” – Prescription drug abuse is on the rise and supervisors need to be aware of this fact.
Signs of Impairment• speech, walking, standing, physical dexterity, agility, coordination, balance, actions, movement, demeanor, appearance, clothing, odor• irrational, erratic or unusual behavior• deteriorating job performance• negligence or carelessness in operating equipment, machinery or production or manufacturing processes• disregard for the safety of the employee or others• inability to perform job in a safe manner• involvement in an accident that results in serious damage to equipment, machinery or property• disruption of a production or manufacturing process• any injury to the employee or others
Signs of Impairment An employee drove a forklift into a company truck. The employee appears a bit wobbly after the incident, but you are not sure if this is because of the shock of the accident or for some other reason. What should you do?
Inspections• If the Company has reason to believe the Drug and Alcohol Policy has been violated, it may: – inspect vehicles (including personal), parcels, packages, purses, lunch boxes, briefcases, lockers, tool boxes, file cabinets, work stations, desks and any other container when on Company property; and – Inspect individual people and clothing – Trained dogs may be used• Employees who fail to submit to inspection will be immediately discharged. Non-employees will be removed from Company property.
Conducting Inspections• Confirm there is a legitimate business reason for conducting the search.• Document the factual basis for the search.• Consult with Human Resources prior to any search of an area that is not open and obvious.• Conduct searches in accordance with Company policy and with as much respect for employee privacy as possible.• Do not select employees for searches for improper reasons.• Do not use physical force or confinement.• Do not touch individuals who are being inspected. If it is necessary to determine what is on the individual person, direct the individual to empty the contents of his/her clothing.• Have a second observer present.
Convictions For Drug Offenses• Under ASARCO’s policy, an employee who is convicted under any criminal drug statute for the use, sale, manufacture, purchase, possession, or transfer of an illegal drug: – Shall be subject to unannounced drug testing for eighteen months; a positive drug test during that period will result in discharge; and – Absence from work due to such convictions shall be considered unauthorized and will result in disciplinary action, up to and including discharge.
Information Systems, Internet, Email &Voicemail Policies• These tools are Company property• Employee use of Company information systems, e- mail, Internet, and other information technology systems is not confidential. ASARCO monitors employee usage of e- mail and the Internet. – Despite features that may give the appearance of privacy, such as personal passwords and the ability to delete communications, the Company reserves and retains the right to monitor its information systems and retrieve stored messages.
True or False? You should feel comfortable to use your email account however you want because your email messages are private. True____ False____
Information Systems, Internet, Email& Voicemail Policies• Limit personal use• Employees may not use these tools for personal or commercial gain• Use that is illegal, unethical, harassing, offensive, defamatory, disruptive, or otherwise violates the Code of Conduct or the Information Systems, Internet, Email & Voicemail Policies is prohibited.
Employment ReferencesYou receive a call from a friend who also is asupervisor at another mining company. Yourfriend tells you that Craig Stevens, an employeewho used to work under your supervision, hasapplied for a position at his company and hewants to know whether Craig was a goodemployee. Although Craig was a hard worker, hewas terminated for testing positive on a drug test.What should you tell your friend?
Personnel Files• Only supervisory and management employees with need to know have access to personnel files.• No investigation notes, medical records, or employee assistance records• Supervisor notes regarding performance, discipline or other issues should be turned over to Human Resources
Defamation• Claim occurs when employer discloses negative, false information about an employee that:• (1) brings the employee into disrepute, contempt, or ridicule, or• (2) impeaches the employee’s honesty, integrity, virtue, or reputation
Employee Privacy• Legal claim exists when the employer: 1. Unreasonably intruded upon employee’s seclusion; 2. Misappropriated employee’s name or likeness; 3. Gave unreasonable publicity to employee’s private life; or 4. Portrayed the employee in a false light before the general public
SURVIVAL TIPSHow To Be A Successful Supervisor• What does it mean to be a supervisor?• Is it appropriate to engage in or permit horseplay?• Is it appropriate to socialize with other employees outside of work?
SURVIVAL TIPSHow To Be A Successful Supervisor• IT IS YOUR RESPONSIBILITY – To know the law and Company rules and make sure they are being followed. – If you see inappropriate conduct, it is your job to do something.
SURVIVAL TIPSHow To Be A Successful Supervisor• Your First Line of Defense DOCUMENT – Write it down when it occurred – Just the facts; be specific and give examples – No personal opinions or legal labels – Note applicable policies and procedures – Note actions taken – Sign and date and give to Human Resources
SURVIVAL TIPSHow To Be A Successful Supervisor• CONSISTENCY – Follow work rules consistently – Apply work rules and expectations fairly and consistently to all – Reward consistently – Impose discipline consistently – Document consistently
SURVIVAL TIPSHow To Be A Successful Supervisor• WALK THE WALK – If you want good attendance, performance and conduct from your employees, set the example.• TREAT OTHERS HOW YOU WOULD WANT TO BE TREATED – With fairness, respect and dignity – Be appreciative – Be flexible when you can – Find out what motivates the people you lead and help them achieve their career goals
SURVIVAL TIPSHow To Be A Successful Supervisor• DON’T LET MOLEHILLS BECOME MOUNTAINS – Take action when problems are simple and easily corrected. The longer you let a situation go, the more difficult it will be to solve the problem.• KNOW WHAT IS GOING ON – Don’t wait for people to come to you – Get out from behind your desk and find out what is going on