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Supervisor training
1. SUPERVISOR TRAINING
MAY 2012
Donald R. Gilbert
Sherry J. Downer
Jessica L. Post
FENNEMORE CRAIG, P.C.
2. 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.)
3. 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
5. 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.
6. 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
7. 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.
8. 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?
9. 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.”
10. 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.
11. Conduct That May Give Rise To
Claims 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.
13. 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.
14. 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
16. 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
17. An employee that you
supervise tells you that a
co-worker has been
harassing her for the past
couple of months. She
tells you that she thinks
she has the situation
under control and is
embarrassed about the
whole thing. She asks
you to promise that you
won’t tell anybody. What
do you do?
18. 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.”
19. 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.
20. True or False?
There is nothing wrong
with a male employee
complimenting a female
co-employee on her
- hairstyle
- her attire
True____ False____
21. True or False?
A single incident or
isolated incidents of
offensive sexual
conduct or remarks
can create a hostile
environment.
True____ False____
22. 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____
23. 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____
24. 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____
25. 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____
26. 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____
27. 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.
28. 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____
29. Age Discrimination In Employment
Act (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
30. 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
31. 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
32. Company Response
• Prompt Investigation
• Confidentiality
• Assessment
• Action
• Monitoring
• Balancing Rights
33. Another supervisor comes to you and tells you
that a female employee under your supervision
has been telling other employees that you have
made inappropriate sexual references around
her. What should you do?
34. 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.
35. 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.
36. 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.
37. 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.
38. What Are Some Examples Of Reasonable
Accommodations?
• 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.
39. An employee comes up to
you and says that he can no
longer operate the gear
shift because of his arthritic
hand. You tell the guy that
you have to let him go
because, although you
would like to help, you
aren’t aware of an
accommodation that would
allow him to perform his
job. Is this ok?
40. 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.
41. 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?
42. Tom, an employee in another department, walks
with a limp and stutters. Two of Tom’s coworkers
mimic Tom’s stuttering and his limp when Tom is
not around. Kathy, a recently hired employee in
your department, is not disabled, but complains
about the conduct of Tom’s coworkers.
What should you do?
45. LEAVES OF ABSENCE
• Workers Compensation
• Family and Medical Leave Act
• Americans with Disabilities Act
• Bereavement
• Jury/Witness Duty
• Voting
• USERRA
46. 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.
47. 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
48. 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
49. 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
50. On Monday morning, an
employee telephones her
supervisor to report that
her husband was in a car
accident over the
weekend and she will be
unable to come to work
this week while she stays
home to take care of him.
The supervisor notifies
you of this phone call.
How should you
respond?
51. An employee under your supervision has
been chronically tardy and absent on a
number of occasions without notice. He calls
you Monday morning five minutes after his
work day has started and tells you he cannot
come in today because his son has the
chicken pox. Can you discipline or terminate
the employee?
52. 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
53. 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.)
54. NOTIFICATION BY EMPLOYEE
• Worker’s Compensation = Immediately
• FMLA = 30 days or “as soon as practicable”
• ADA = Need for accommodation
55. 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
56. 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?
57. 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____
58. True or False?
You may require an employee to perform light
duty work in lieu of giving him or her FMLA leave.
True____ False____
59. Tom has taken several absences under the FMLA.
Your colleagues have voiced frustration that Tom
has been absent so frequently. The end of the
year is approaching, and you have to write Tom’s
performance review.
60. • 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?
61. 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.
62. 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.
63. 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.
64. 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.
66. ETHICS ISSUES
Presented by
James F. Coxon, General Manager,
ASARCO Corporate Human Resources
1 • Code of Conduct
2 • Conflict of Interest
3 • Ethics Hotline
68. 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.
69. Rules of Conduct
• INSERT RULES OF CONDUCT SLIDES WHEN
SINGLE POLICY IS FINISHED
70. 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.
71. 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
72. 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.
73. 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.
74. PRIVACY ISSUES
• Drug Testing/Reasonable Suspicion
• Inspections
• Information Systems, Internet and
Email
• Employment References
• Defamation
75. 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.
76. 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.
77. 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____
78. 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.
79. 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
80. 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?
81. 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.
82. 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.
83. 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.
84. 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.
85. True or False?
You should feel comfortable to use your email
account however you want because your email
messages are private.
True____ False____
86. 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.
87. Employment References
You receive a call from a friend who also is a
supervisor at another mining company. Your
friend tells you that Craig Stevens, an employee
who used to work under your supervision, has
applied for a position at his company and he
wants to know whether Craig was a good
employee. Although Craig was a hard worker, he
was terminated for testing positive on a drug test.
What should you tell your friend?
88. 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
89. 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
90. 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
92. SURVIVAL TIPS
How 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?
93. SURVIVAL TIPS
How 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.
94. SURVIVAL TIPS
How 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
95. SURVIVAL TIPS
How 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
96. SURVIVAL TIPS
How 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
97. SURVIVAL TIPS
How 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
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.
POLICY?
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.