1

Hot Topicsin

Employment LawSpeaker: John Purtill CPA

ICPAS Management ConferenceAugust 8, 2002

2

Today’s Topics

Circuit City and mandatory arbitration

Mitigating measures and the ADA

Vicarious liability

Wage & Hour classification

Computerize it!

Casey Martin

3

1 - Employee disputes

Court remediesState court

Federal court

AdministrativeEEOC complaint (within 180 days)

NLRB

4

Circuit City

Standard employment applicationEmployment agreementDispute resolution agreement

ADEA, Title VII CRA ’64, ADA, FMLA1 year from cause of action

AllowedNLRB, EEOC, state agencies

5

Dispute procedures

Filing form

Time limits

Arbitrator selection

Time and place

Legal representation

Discovery, interrogatories, depositions

Hearings

6

Federal Arbitration Act

Authorizes arbitration clauses

Contracts valid

Lawsuits must be referred to arbitration

Courts can enforce awards

Doesn’t apply to maritime, transport

www.lawmemo.com/arb/res/faa.htm

7

Circuit City V. Adams

Adams files state discrimination action

CCS sues to compel arbitration

U. S. Supreme court

Adams:Arbitration Act excludes workers in ICC

Supremes (5-4) May 2001:Only transportation workers excluded

8

What can be arbitrated?

Almost all employer/employee disputes

Federal discrimination statutesDescrimination

ADA

Age Discrimination

Federal wage and hours laws

State common law contract rightsWrongful discharge

State statutes and constitution

9

What about Ryan’s?

Ryan’s Family Steak Houses

January 2002

Arbitration clause

One-sided

Federal court – unenforceable

Headed to Supreme Court?

10

Want to do this?

Requirements for agreement

Meet standards for contract (duress, fraud)

Mutual – both must give up rights

Equal rights - fees, right to pick arbitrator

Fairness – credible reputable arbitrators

American Arbitration Assoc: www.adr.org

11

2 - ADA disabilities

Major life activity (physical function)Walking, seeing, hearing, lifting, reaching

Traditional disabilitiesAIDS/HIV, blindness, cancer

12

Discrimination considerations

Types of functionsEssential

Marginal

Selection criteria

Reasonable accommodationPhysical

Work rules

Hardship

13

Last Month

Supreme Court ADA

USAir v. Barnett

Cargo handler injured on job

Applies for mail room job

Court: Not need to prefer disabled worker

over more senior workers

Not reasonable accommodation

14

Remedies

If discriminated againstLawsuit

EEOC complaint

RemedyBack pay

Reinstatement

Legal fees

15

Disabilities

Examples

Diabetes

Emotional illness

Epilepsy

16

Mitigating measures

Controlled disability not disability

Medicines

Appliances

17

Controlled Disabilities

EEOC definition changed by courts

Murphy v. UPSMechanic with high blood pressure

Sutton v. United Airlines20/20 corrected vision

Albertsons Inc. v. KirkingburgDriver with waivable vision deficiency

18

Action plan

Position descriptions for all positions

Specify essential functions

Not:Prepare operations report

This:Read computer terminal

Lift packages into truck

Walk from kitchen to tables

19

3 - Vicarious liability

Refers to sexual harassment

Employer liable for acts of agentsExecutives

Supervisors

Employees, contractors, vendors, etc.

IssuesPervasiveness

Either direct or constructive knowledge

"Knew or should have known"

20

Sexual harassment

Hostile working environment

Any combination works: MF, FM, FF, MM

Rank not important

Claim made by direct target

3rd party offended by consenting parties

Economic injury, discharge not required

Only requirement: harasser's conduct unwelcomeOnly requirement: harasser's conduct unwelcome

21

Burlington Industries v. Ellerth

Burlington had anti-harassment policy

Ellerth and indirect supervisor

Constant sexual harassment

On the job

Ellerth leaves Burlington

Sues

Claims hostile working environment

Burlington responsible!

22

Faragher v. Boca Raton

Boca Raton had anti-harassment policy

Not widely distributed

Faragher and 2 life guard supervisors

Harassed her

Also other life guards

Third supervisor knew – didn’t report

Employer responsible!

23

Doe v. Lago Vista

Lago Vista Independent School District

Has anti-harassment policy

High school teacher and supervisorSexual relationship

Encounters take place off school property

Administration not aware

Employer not responsible, plusRequires actual knowledge

Deliberate indifference to misconduct

24

The rules

Driver is employer knowledge (maybe)

Tangible employment outcomeNo defense

No adverse outcome, 2 defensesEmployer: reasonable care to prevent and

corrected promptly

Employee: unreasonably failed to take advantage of prevention

25

Action plan

Policy

Supervisor training

Easy employee access to reporting

Top management support

26

4 - Wage & Hour classification

"Glorified clerk" complaint

Taco Bell, Starbucks, others

Working supervisors - exempt executives

No OT, etc

27

Exempt executive

IN and Federal rules identical

Salary

At least 80% of time to function

(60% in retail/service)

Management is primary duty

Supervise 2 or more FTEs

Authority to hire, fire

High degree of judgment

28

DOL Audit areas

Docking for sick time

Prorating/carry-over: pay in full every pay period

Administrative doing low-level routine production

Professional degrees not doing professional jobs

Or jobs not related to the degree they hold

Job skills v. independent judgment

“Execs” with > 20%/40% non-exempt

29

To do

Re-audit risk jobs:

First level supervisors

Professionals

Sales

Administrative

Revisit position descriptions

30

5 - Computerize it!

80-90% of companies use manual methodsEmployee evaluationsPosition descriptionsPolicy manuals

OutcomeTime-consumingInflexibleDelayedInaccurate

Software availability

31

Automating evaluations

KnowledgePoint Performance Now!

Custom form per job

Percentage allocation of skills

Narrowly defined meanings for “1” to “5”

32

Evaluation input screen

33

Example rating

Communications

Keeps others adequately informed

Choices1 - Frequently fails …

2 - Unless reminded, sometimes fails …

3 - Keeps others adequately informed

4 - Careful to keep …in a timely manner

5 - Extremely thorough and proactive …

34

Automating PDs

KnowledgePoint Positions Now!

Start PD by extracting from master library

Covers all EEOC elements

Objective statements of position demands

35

PD elements

Essential duties and responsibilitiesSupervisory responsibilities QualificationsEducation and/or experience Language skills Mathematical skills Reasoning ability Certificates, licenses, registrations Work environmentPhysical demands - essential functions!

36

Physical Demand input screen

37

Vision input screen

38

Automating manuals

KnowledgePoint Policies Now!

Most products from California

Thoroughly tested

Use Q&A approach

39

Policy development

Overview of topic

Advice on topic

40

6 - Casey Martin

PGA pro golfer

Klippel-Trenaunay-Weber syndrome

Issues

Casey – walking is incidental

PGA – walking is essential function

Supreme court opinion (7-2) May ‘01

41

Last month

Supreme Court FMLA

Ragsdale v. Wolverine Worldwide

Wolverine allows 7 months FMLA leave

After 7, Ragsdale requests 12 more weeks

Says wasn’t notified about first leave

Court: Don’t have to give

42

Thanks for listening!

Contact information:

John S. Purtill, CPA

203-272-2844 (voice)

203-272-2583 (fax)

John@Purtill.com