This document summarizes the key topics presented at the 31st Annual Employment Law Seminar. It discusses the rise in workplace discrimination claims in Utah and nationwide. It provides statistics on sexual harassment claims filed with the EEOC. It outlines best practices for avoiding discrimination claims in hiring, such as developing job-related qualifications and asking all applicants the same interview questions. It also discusses recommendations for preventing discrimination claims in the workplace, such as implementing anti-harassment policies and training, and having fair procedures for investigating complaints.
#unplug? Legal and Ethical Challenges in Employment in an Online WorldBoyarMiller
A presentation on the legal and ethical considerations in the employment life cycle from pre-employment through post-termination. Screening applicants, monitoring policies, remote work considerations, and access to social media during and post-employment can create ethical questions and legal ramifications for every company.
#unplug? Legal and Ethical Challenges in Employment in an Online WorldBoyarMiller
A presentation on the legal and ethical considerations in the employment life cycle from pre-employment through post-termination. Screening applicants, monitoring policies, remote work considerations, and access to social media during and post-employment can create ethical questions and legal ramifications for every company.
Too Much Information: The Use and Misuse of Pre-Employment Inquiries, Applica...Parsons Behle & Latimer
Employers are gathering more and more information regarding potential employee hires. Recent EEOC rules and FTC regulations have placed additional scrutiny on pre-employment inquiries and background checks by employers. Employers need to protect themselves by knowing what is "too much information." Kevin addresses the permissible bounds of pre-employment information obtained from potential employees during the hiring process.
Delivered by our Queensland EILS team, this seminar explored the manipulations of investigations by employers and the common issues and deficiencies of investigations. Case studies, tip and traps are covered.
Employers in Utah can fire their employees for any reason or no reason at all. There are limitations to this rule - you can't fire an employee, for example, based on race, gender, religion, or age, or if doing so would breach a contract. You also can't fire an employee if doing so would violate "public policy." This presentation walks through this third limitation on Utah's at-will doctrine, its scope and its pitfalls, and the ways to potentially avoid its traps.
Government agencies are expanding their focus on employees’ rights, social media, and other employer policies and it is not just social media policies that are being invalidated. Susan and Nick discuss how recent changes in social media law might affect your company’s confidentiality policies, hiring policies and practices, and discrimination and harassment policies.
There have been a number of new developments this year. Christina discusses new federal and state initiatives, new case law and other developments that directly affect employers.
In any kind of business, there is a chance that employers will be required to investigate one or more employees at some point for allegations of misconduct such as discrimination or sexual harassment. A properly conducted workplace investigation is not only legally required but can also go a long way in protecting companies and mitigating risks for future problems.
In this webinar, Diana Maier and Beth Arnese go over the key things to know about workplace investigations so that you can garner the maximum legal protection such investigations may provide.
Topics addressed include when to investigate, how to prepare for an investigation, how to interview witnesses, how to prepare a written report, what to do after the investigation, and overall best practices for investigations.
Chapter 3Risk Management in EmploymentEmployment Re.docxketurahhazelhurst
Chapter 3:
Risk Management in Employment
Employment Relationship carries Risk
• Risk to an organization is not limited to
provider-patient relationships
• As in any business, the healthcare organization
has responsibilities to its employees. Many of
which, if not properly implemented/enforced,
can lead to negative and litigious results
Employment-at-Will
• An employer may dismiss an employee
hired for an indefinite period of time for
any reason or no reason at all without
incurring liability to the employee
• Caveat: cannot discharge for an unlawful
reason, such as racial discrimination
Implicit Employment Contracts
• Though most states follow the employment-at-
will doctrine, many organizations may
unknowingly negate their ability to apply this
principle through
– Employer policies (i.e. progressive disciplinary policy)
– Oral assurances (i.e. looks like you have a bright
future ahead of you here)
– Industry customs (i.e. after so many years in one
position, employees are promoted to the next level)
– Employer conduct (i.e. allowing some employees
more chances to correct errors than others)
Burden of Proof
• In civil litigation of discrimination, the burden of
proof is usually on the plaintiff -they must show:
• Membership in a protected group
• Satisfactory job performance or appropriate
qualifications for the job being sought
• Receipt of discipline, termination or rejection
despite having the qualifications
• Employees of another protected class were
disciplined less severely or the employer continued
to accept application of people who were no better
qualified
Sexual Harassment
• Unwelcome sexual advances, request for
sexual favors or other verbal or physical
conduct of a sexual nature when it is one of
the following:
• is a condition of employment
• is the basis of employment decisions
• interferes with work performance
• creates a hostile work environment
Minimizing Risk of Sexual Harassment
• Organization must exercise reasonable care to
prevent and correct any sexually harassing
behavior
– Written policies/procedures
– Documented staff training on policies/procedures
– Consistently adhere to and enforce policies
– Immediately investigate allegations of sexual
harassment
Responsibility of the Employee
• Employee must report occurrences of sexual
harassment to employer
– Employer must be given the opportunity to investigate
and take corrective action
• Though it is important that an employer investigate
all reports of sexual harassment, proactively
addressing situations or behavior that may be
perceived as sexual harassment is imperative.
– If management is aware of a potential situation and does
nothing, the risk of litigation and penalty is increased
People with HIV or AIDS
are protected by the ADA
Persons with HIV disease, both
symptomatic and asymptomatic, have
physical impairments that substantially
limit one or more major li ...
Is that seemingly qualified, trustworthy individual you want to hire really safe to hire? Can you really know for sure? Companies use background checks to inform and improve the quality of their hiring decisions. However, many are unsure exactly how to evaluate the results of a background check report, especially how to handle a “negative” background check.
Too Much Information: The Use and Misuse of Pre-Employment Inquiries, Applica...Parsons Behle & Latimer
Employers are gathering more and more information regarding potential employee hires. Recent EEOC rules and FTC regulations have placed additional scrutiny on pre-employment inquiries and background checks by employers. Employers need to protect themselves by knowing what is "too much information." Kevin addresses the permissible bounds of pre-employment information obtained from potential employees during the hiring process.
Delivered by our Queensland EILS team, this seminar explored the manipulations of investigations by employers and the common issues and deficiencies of investigations. Case studies, tip and traps are covered.
Employers in Utah can fire their employees for any reason or no reason at all. There are limitations to this rule - you can't fire an employee, for example, based on race, gender, religion, or age, or if doing so would breach a contract. You also can't fire an employee if doing so would violate "public policy." This presentation walks through this third limitation on Utah's at-will doctrine, its scope and its pitfalls, and the ways to potentially avoid its traps.
Government agencies are expanding their focus on employees’ rights, social media, and other employer policies and it is not just social media policies that are being invalidated. Susan and Nick discuss how recent changes in social media law might affect your company’s confidentiality policies, hiring policies and practices, and discrimination and harassment policies.
There have been a number of new developments this year. Christina discusses new federal and state initiatives, new case law and other developments that directly affect employers.
In any kind of business, there is a chance that employers will be required to investigate one or more employees at some point for allegations of misconduct such as discrimination or sexual harassment. A properly conducted workplace investigation is not only legally required but can also go a long way in protecting companies and mitigating risks for future problems.
In this webinar, Diana Maier and Beth Arnese go over the key things to know about workplace investigations so that you can garner the maximum legal protection such investigations may provide.
Topics addressed include when to investigate, how to prepare for an investigation, how to interview witnesses, how to prepare a written report, what to do after the investigation, and overall best practices for investigations.
Chapter 3Risk Management in EmploymentEmployment Re.docxketurahhazelhurst
Chapter 3:
Risk Management in Employment
Employment Relationship carries Risk
• Risk to an organization is not limited to
provider-patient relationships
• As in any business, the healthcare organization
has responsibilities to its employees. Many of
which, if not properly implemented/enforced,
can lead to negative and litigious results
Employment-at-Will
• An employer may dismiss an employee
hired for an indefinite period of time for
any reason or no reason at all without
incurring liability to the employee
• Caveat: cannot discharge for an unlawful
reason, such as racial discrimination
Implicit Employment Contracts
• Though most states follow the employment-at-
will doctrine, many organizations may
unknowingly negate their ability to apply this
principle through
– Employer policies (i.e. progressive disciplinary policy)
– Oral assurances (i.e. looks like you have a bright
future ahead of you here)
– Industry customs (i.e. after so many years in one
position, employees are promoted to the next level)
– Employer conduct (i.e. allowing some employees
more chances to correct errors than others)
Burden of Proof
• In civil litigation of discrimination, the burden of
proof is usually on the plaintiff -they must show:
• Membership in a protected group
• Satisfactory job performance or appropriate
qualifications for the job being sought
• Receipt of discipline, termination or rejection
despite having the qualifications
• Employees of another protected class were
disciplined less severely or the employer continued
to accept application of people who were no better
qualified
Sexual Harassment
• Unwelcome sexual advances, request for
sexual favors or other verbal or physical
conduct of a sexual nature when it is one of
the following:
• is a condition of employment
• is the basis of employment decisions
• interferes with work performance
• creates a hostile work environment
Minimizing Risk of Sexual Harassment
• Organization must exercise reasonable care to
prevent and correct any sexually harassing
behavior
– Written policies/procedures
– Documented staff training on policies/procedures
– Consistently adhere to and enforce policies
– Immediately investigate allegations of sexual
harassment
Responsibility of the Employee
• Employee must report occurrences of sexual
harassment to employer
– Employer must be given the opportunity to investigate
and take corrective action
• Though it is important that an employer investigate
all reports of sexual harassment, proactively
addressing situations or behavior that may be
perceived as sexual harassment is imperative.
– If management is aware of a potential situation and does
nothing, the risk of litigation and penalty is increased
People with HIV or AIDS
are protected by the ADA
Persons with HIV disease, both
symptomatic and asymptomatic, have
physical impairments that substantially
limit one or more major li ...
Is that seemingly qualified, trustworthy individual you want to hire really safe to hire? Can you really know for sure? Companies use background checks to inform and improve the quality of their hiring decisions. However, many are unsure exactly how to evaluate the results of a background check report, especially how to handle a “negative” background check.
Recruiting and Hiring, Including Restrictive Covenants (Series: Protecting Yo...Financial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/recruiting-and-hiring-including-restrictive-covenants-2021/
Welcome to the Team! Recruiting and Hiring, Including Restrictive CovenantsFinancial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
Part of the webinar series: PROTECTING YOUR EMPLOYEE ASSETS: THE LIFE CYCLE OF THE EMPLOYMENT RELATIONSHIP 2022
See more at https://www.financialpoise.com/webinars/
· Welcome to Week 4This week will cover material about Backgroun.docxodiliagilby
· Welcome to Week 4
This week will cover material about Background Checks.
In this lesson, we will discuss:
· What are communication strategies that can be used to communicate the regulatory changes to hiring leaders within an organization?
· Background Checks
· Education History
· Employment History
· Financial History
· Medical History
· Criminal History
· Social Media History
· Driving History
· Recordkeeping and Maintenance
Course Learning Objectives:
By the end of this lesson, you will be able to:
· Apply theory and concept to real world of HR policy and situations in the workplace
· Examine employee relations and discuss laws and policies related to employment opportunities, allegations of discrimination, employment practices, diversity, and affirmative action programs
· LESSON
Background Checks
LESSON TOPICS
· Background Checks
· Education History
· Employment History
· Financial History
· Medical History
· Criminal History
· Ban the Box
· Social Media History
· Driving History
· Background Check Summary
· Additional Resources on Background Checks
· Recordkeeping and Maintenance
· Communicating Policy
INTRODUCTION
This lesson will focus on two main areas. The first will be on background checks and the second will be on communicating policy changes to hiring managers within an organization. Although the two topics may seem unrelated, we will explore how they are connected. Anytime a policy is added, changed, or updated, the appropriate personnel must be informed. Communicating the new information in an effective way can be just as important as the policy itself.
Background Checks
Before we jump into our discussion on employment background checks, we need to understand what it means. Essentially, it means to verify or authenticate the information provided by an applicant or employee. This could include checking the information provided on an application, in a resume, or from an interview. The employer wants to ensure the employee or candidate has the background and experience they are claiming.
If it is determined that an applicant was untruthful about their experience, credentials, education, qualifications and so forth, then the employer can release, or fire that person provided the person signed or attested to the truthfulness of the information.
Information an employer might want to gather about an applicant could include some or all of the following; education history, work history, financial history, medical history with some exceptions), criminal history, and their use of social media. It is not against the law for an employer to ask questions about the applicant or employees background or to require a background check.
There are many reasons an employer would want to conduct a background check. The most common reason is to avoid negligent hiring. If an employee kills or injures someone, the company could be held liable. Some positions require it by law such as those that work with children, elderly, or the disabled. Recen ...
Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants (...Financial Poise
You only get one chance to make a first impression, so you want to make sure your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/recruiting-and-hiring-including-restrictive-covenants-2020/
Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants (...Financial Poise
To view the accompanying webinar, go to: https://www.financialpoise.com/financialpoisewebinars/view-webinar/?id=261915068&slides=8FFUUS9Gyz9IpR
You only get one chance to make a first impression, so you want to make sure you’re your company avoids unnecessary missteps when recruiting and hiring employees. Understanding what you can and cannot say during interviews and how to respond when a candidate volunteers information that may be considered “off limits” is essential. At the same time, there are a host of laws being passed throughout the country that address when and what sort of information you can request from applicants regarding their criminal and financial histories. In the event you decide to protect your organization by requiring certain employees to sign some type of restrictive covenants—non-competition, non-solicitation and/or non-disclosure—there are a host of legal and practical issues to consider. This webinar explores these and other issues so that you can be confident, going forward, that you are starting off on the right foot—legally, at least—when you hire new employees.
Unemployment Insurance is the only employer tax that can be controlled. Successful UI cost control efforts begins with professional claims administration.
Discover first-hand from a former UI Deputy exactly the thought process a State Agency considers when issuing entitlement decisions. Learn how your efforts can help prevail in UI decisions at both the initial claims and appeals stage.
Join G&A Partners and Jeffrey Martin, a former UI Deputy and UI Specialist for the "Controlling Unemployment Insurance (UI) Costs can be Painless" webinar.
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
DNA Testing in Civil and Criminal Matters.pptxpatrons legal
Get insights into DNA testing and its application in civil and criminal matters. Find out how it contributes to fair and accurate legal proceedings. For more information: https://www.patronslegal.com/criminal-litigation.html
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
PRECEDENT AS A SOURCE OF LAW (SAIF JAVED).pptxOmGod1
Precedent, or stare decisis, is a cornerstone of common law systems where past judicial decisions guide future cases, ensuring consistency and predictability in the legal system. Binding precedents from higher courts must be followed by lower courts, while persuasive precedents may influence but are not obligatory. This principle promotes fairness and efficiency, allowing for the evolution of the law as higher courts can overrule outdated decisions. Despite criticisms of rigidity and complexity, precedent ensures similar cases are treated alike, balancing stability with flexibility in judicial decision-making.
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
1. 31st Annual Employment Law Seminar
M A R R I O T T C I T Y C E N T E R H O T E L | S A LT L A K E C I T Y, U TA H
PA R S O N S B E H L E . C O MN AT I O N A L E X P E R T I S E . R E G I O N A L L AW F I R M .
Essential Tips for Avoiding
Discrimination Claims
Derek Langton
801.526.6704 | dlangton@parsonsbehle.com
3. 3
SCOPE OF THE PROBLEM
• In Utah, there was a 146% rise in the number of workplace
discrimination claims brought in the last decade
◦ There were 107 charges of discrimination filed in 2009
◦ There were 264 charges filed in 2017
• With respect to sexual harassment charges filed with the
EEOC nationwide, there was a 12% increase from FY2017
to FY2018, which was the first increase in such charges in
five years
4. 4
SCOPE OF THE PROBLEM (cont’d.)
• In FY2018, EEOC’s litigation attorneys filed 41 separate
sexual harassment federal lawsuits, which was more than a
50% increase from the previous year
• Reasonable cause findings in sexual harassment cases
increased from 970 to nearly 1,200, an increase of more
than 23%
• In FY2018, the EEOC recovered nearly $70 million for
victims of sexual harassment through administrative
enforcement proceedings and litigation – an increase of
more than 22% over FY2017
5. 5
SCOPE OF THE PROBLEM (cont’d.)
A survey conducted in March 2018 by the Working
Mother Research Institute and the ABA Journal
surveyed almost 3,000 people online, 65% of whom
were female
◦ Of the female respondents, 68% indicated that they had
experienced sexual harassment at work
6. 6
SCOPE OF THE PROBLEM (cont’d.)
◦But importantly, only 30% reported the harassment to
the company
◦The main reasons for not reporting the harassment
were that: it would negatively impact their job; a belief
that such behavior was tolerated; and lack of
confidence that senior leadership would address the
issue
7. 7
SCOPE OF THE PROBLEM (cont’d.)
Workplace harassment can negatively impact employers in a
variety of ways, including:
• Loss of employee morale
• Employee turnover
• Increased absences
• Reduced productivity
• Distraction of company’s personnel gathering documents, conducting
investigation, and time invested in fighting claim
• Amounts paid in settlement or awarded by jury
• Legal fees
8. 8
AVOIDING CLAIMS IN THE HIRING PROCESS
• Discrimination in the hiring process happens when an
employer selects a candidate based on criteria other than
applicant’s qualifications
• Employers need to be careful not to discriminate against
applicants due to, among other things, race, gender,
religion, age (40 and over), national origin, disability or
pregnancy
• To avoid discrimination in the hiring process, an employer
needs to analyze the duties required for the position being
filled
9. 9
AVOIDING CLAIMS IN THE HIRING PROCESS
• The employer should develop specific education and
experience qualifications for job candidates for the position;
require only those qualifications necessary to perform the
required duties of the particular position
• During the interview process, ask questions designed to
determine whether the applicant meets the qualifications for
the particular position
• The interviewer should write out the interview questions
based on the analysis of the duties required for the position,
and the education and experience qualifications required
10. 10
AVOIDING CLAIMS IN THE HIRING PROCESS
• Ignore reference to one of protected classes that an
applicant may make (e.g., pregnancy), and inform the
candidate that it will not be a factor in the selection
• Ask each applicant every question on your list; follow-up
questions may vary depending on the applicant’s response
• At least two people should attend each interview on behalf
of employer
• At least one person should keep good notes of the interview
11. 11
AVOIDING CLAIMS IN THE HIRING PROCESS
HYPOTHETICAL SITUATION:
Don is a 58-year-old attorney. He applies for a senior inhouse position
in FotoKonnect’s legal department. The job description required
applicants to have “3 to 7 years (no more than 7 years) of relevant legal
experience.” Don had more than seven years of pertinent experience.
FotoKonnect did not hire Don, but instead hired a 29-year-old applicant
who met but did not exceed the prescribed experience requirement.
Don sues FotoKonnect for age discrimination.
Did FotoKonnect engage in prohibited discrimination?
12. 12
AVOIDING CLAIMS IN THE HIRING PROCESS
HYPOTHETICAL SITUATION:
Carol applied for a warehouse job. At the interview, the hiring official
told her the job requirements and asked if she would be able to meet
them. One of the job requirements was the ability to lift up to 50
pounds. Carol said that she could not meet the lifting requirement
because she was pregnant but otherwise would be able to meet the job
requirements. She was not hired. The employer asserts that it did not
select Carol because she could not meet the lifting requirement and
produces evidence that it treats all applicants the same with regard to
this hiring criterion.
Did the company unlawfully discriminate against Carol?
13. 13
AVOIDING CLAIMS IN THE HIRING PROCESS
ADA – Employment Medical Inquiries
The ADA limits an employer's ability to make disability-related
inquiries or require medical examinations at three stages:
pre-offer, post-offer, and during employment. The rules
concerning disability-related inquiries and medical
examinations are different at each stage.
14. 14
AVOIDING CLAIMS IN THE HIRING PROCESS
Medical Inquiries – Pre-Offer
At the first stage (prior to an offer of employment), an
employer may not ask any disability-related questions or
require any medical examinations, even if they are related to
the job.
15. 15
AVOIDING CLAIMS IN THE HIRING PROCESS
Medical Examinations – Conditional Offer
• At the second stage (after an applicant is given a
conditional job offer, but before he or she starts work),
an employer may ask disability-related questions and
conduct medical examinations, regardless of whether they
are related to the job, as long as it does so for all entering
employees in the same job category.
• But if criteria ultimately screens out individuals with
disabilities, the criteria must be job-related and consistent
with business necessity.
16. 16
KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
• Culture. Culture has to come from the top – dignity and
respect; zero tolerance for discrimination or harassment
• Policy. Company must have strict and clear policy that
prohibits employment discrimination or harassment
◦ Policy should be easy to understand
◦ Policy should provide at least two, and preferably several, different
persons to whom complaints or reports can be made (e.g.,
immediate supervisor, head of HR, officers or partners)
◦ Policy should be updated periodically to ensure that it complies
with current law
18. 18
KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
• Training of managers/supervisors. Company needs to
train managers and supervisors regarding implementation of
anti-discrimination and anti-harassment policy with
expectation that prevention is their responsibility
• Training of employees. Company needs to train
employees about company policy, and about how to report
or complain about discrimination or harassment
◦ Be sure to have employees sign off on a training record to indicate
that they attended the training, and are aware of the company’s
policy and the complaint and/or reporting process
19. 19
KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
• Procedures for addressing complaints. Have procedures in
place for addressing complaints and who will address them; all
complaints should be addressed promptly
• Investigating complaints
◦ Investigate all complaints and reports thoroughly and promptly
◦ Let the parties know that you cannot guarantee a particular result,
but you can guarantee a fair process
◦ Interview the complainant or person reporting the harassment or
discrimination, all other relevant witnesses, and then the alleged
discriminator/harasser
20. 20
KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
• Investigating complaints (cont’d)
◦ Seek to maintain confidentiality to extent reasonably possible
◦ Warn the discriminator/harasser that no retaliation will be tolerated
◦ Ask neutral, not accusatory questions, preferably open-ended
questions; ask about and obtain any corroborating documents
◦ Ask about any alleged similar acts of discrimination/harassment or
other inappropriate behavior
◦ Determine quickly whether immediate, temporary action should be
taken to separate the parties during the investigation
21. 21
KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
• Implementing appropriate remedial action
◦ Upon completion of investigation, you need to make decision
regarding the extent to which you believe that the complainant or
victim was subjected to unlawful harassment or discrimination
◦ You will have to decide whose testimony is more credible – the
complainant/victim and witnesses or the alleged
discriminator/harasser
◦ Decide on discipline for the discriminator/harasser, if any – write-
up; suspension (with or without pay depending on any applicable
policies); termination
◦ Inform complainant/victim of decision
22. 22
KEY TIPS FOR AVOIDING DISCRIMINATION
CLAIMS IN THE WORKPLACE
• Implementing appropriate remedial action (cont’d.)
◦ Consistency is always important – similar conduct should result in
similar discipline, subject to consideration of history of past
conduct
◦ Document why you took action the action you did (who you
interviewed, who you believed and why, and why the discipline is
appropriate)
◦ Disciplinary action goes in personnel file of accused
◦ The interview summaries should go in a separate investigation file
– not the personnel files of the victim or the witnesses
23. 23
AVOIDING CLAIMS IN THE FIRING PROCESS
Implementing a RIF
• Create a RIF Committee or put one person in charge of
overseeing the RIF
• Analyze severance pay issue
• Determine how many employees will need to be discharged
and from which areas
• Determine criteria to be used in deciding which employees
will be retained and which ones will be discharged
24. 24
AVOIDING CLAIMS IN THE FIRING PROCESS
Implementing a RIF (cont’d.)
• Inform managers or front-line supervisors or other decision-
makers who will be making decisions or recommendations
about whom to keep and whom to let go about these criteria
◦ Criteria are to be strictly followed
◦ Managers/supervisors should be cautioned not to select
employees to be included in RIF based upon their proximity to
retirement
25. 25
AVOIDING CLAIMS IN THE FIRING PROCESS
Implementing a RIF (cont’d.)
• Review by RIF Committee (or person in charge of RIF)
◦ Individual cases
◦ Bottom line numbers