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