Basic Employment Law Manual

USE OF SOCIAL MEDIA IN PROTECTED, CONCERTED ACTIVITIES

-2010 NLRB began looking at this issue. -The general rule is that posts on social media sites such as Facebook and Twitter constitute protected, concerted activity when the conversation around those posts relates to terms and conditions of employment. o Topics that are almost always protected: § Wages, benefits, hours of work, and most work policies. -What is or is not protected is often determined on a case-by-case basis.

FAILURE TO DOCUMENT CAN CREATE LEGAL PROBLEMS

-A supervisor's failure to document may lead to an inference of discrimination. -Failure to document also has a negative impact on employee relations.

Lilly Ledbetter Fair Pay Act of 2009:

-An employee subjected to compensation discrimination under Title VII, the ADEA, or the ADA may file charges when: o a discriminatory compensation decision or other discriminatory practice affecting compensation is adopted; o an individual becomes subject to the decision or practice; or o an individual is affected by the application of a discriminatory compensation decision or practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from the decision or other practice. +This means that the time period for filing restarts each time an employee is paid based on a discriminatory compensation decision.

QUESTIONS TO AVOID:

-Any questions that appears to single out a protected group. i.e. race, health, military status, religion, crime, health or disabilities, Genetic info, military status, height/weight, English or Foreign language skills, education, economic status, employment status, union/political affiliation, etc.

QUESTIONS TO ASK

-Any questions that is used to solicit information on competence, job-related, skills, self-appraisal, etc.

PERFORMANCE APPRAISALS MUST BE ACCURATE

-Appraisals records are one of the first things lawyers will look at if an employee files a lawsuit. -Accurate appraisals verify the performance reasons why an employee was disciplined or discharged.

TREAT PEOPLE KINDLY AND RESPECTFULLY (How can a manager or supervisor focus on treating employees kindly and respectfully?)

-Ask yourself how you would like to be treated by your boss. -Let people clearly know what is expected of them as employees. -Don't make unreasonable demands. -Make work assignment in a courteous manner. -Take the time to explain why the work people do is important. -Stop to ask for their help in solving problems. -Make people feel valuable.

Protected Activity:

-Asserting a statutorily protected right, opposing a prohibited employment practice, even an employee's verbal complaints may be considered protected activity. -Retaliation protection even extends to individual who speak out about discrimination and harassments not on their own initiative, but in answering questions during an employer-ordered internal investigation. -To reduce the likelihood that employees who claim discrimination or otherwise assert protected rights will file charges, managers and supervisors should: o Avoid unequal treatment o Establish an independent basis for discipline o Don't try to limit participation rights

Uniformed Services Employment and Reemployment Rights of 1994 (USERRA):

-Bans discrimination based on past, current, or future military service. It also provides for military leaves of absence and reemployment of employees after military leave.

Genetic Information Nondiscrimination Act of 2008 (GINA):

-Bars discrimination and retaliation based on genetic information relating to an employee or a family member. o Employers may not use genetic information in making employment decisions. o Employers are prohibited from acquiring genetic information about employees and family, except in specific circumstances. The information is confidential.

HAVE DOCUMENTATION AVAILABLE

-Bring documentation that supports the discharge to the termination meeting -Supporting documentation might include: o Copies of relevant disciplinary policies o Performance appraisals o Memos of disciplinary meetings o Formal warnings issued during progressive discipline o Statements from witnesses gathered during the investigation o Customers complaints

Common law:

-Common law theory under which an employee may sue a company: o Infliction of emotional stress o Defamation o Invasion of privacy o Interference with employment o Fraud or negligent misrepresentation o Negligent employment o False imprisonment o Battery o Assault o Constructive discharge o Discharge in violation of public policy o Breach of contract o Breach of implied contract

COMPANY-OFFERED LEAVES

-Contracted leave

References/Defamation/Privacy (WHAT IS DEFAMATION?)

-Defamation is a false statement—either written or spoken—about a person that harms the person's reputation. o Both the company and supervisor can be held liable.

DOCUMENTATION SHOULD GIVE DETAILS

-Documentation should deal with the facts, be specific, and tell the story. -You should avoid expressing personal opinions, accusations, or judgements. -You should not attempt to reach a legal conclusion in your documentation.

WHEN TO HOLD THE MEETING

-Early in the day and early in the week is the best time for conducting a termination interview.

MILITARY LEAVE

-Employee eligibility o USERRA requires that the employee be granted military leave if the following 2 criteria are met: § The employee or an appropriate military officer provides advance oral or written notice. § Leave does not exceed 5 years. -Reasonableness of leave request o Leave must be granted -Types of military services o Training, weekend drills, summer camps, funeral honor duties, fitness exams -Duration of leave o 5 years limit on combined length o Weekend drills, summer camps, annual training for reservists or National Guard are exempt time periods -Pay o None o May used accrued vacation if employee wants but employer can't require it. -Notice of return o 31 days or less must return the next regular scheduled work day that falls 8 hours after return. o 31-180 days must apply for reemployment w/in 14 days. o After 180 days must submit application w/in 90 days. o Applications can be written or oral. -Reemployment eligibility. o Must be rehired o If eligibility is in question refer to HR. -Notice of intent not to return to work o Resigning from a job to enter military service does not cut off a person's reemployment rights o May lose certain job benefits -Reinstatement after leave o Must be placed in the job they would have held if they weren't absent. If they are not qualified or cannot be qualified they must be place in a job they can perform.

DOCUMENT DISCIPLINARY STEPS

-Essential for both disciplinary and legal reasons. -Documentation reinforces the message that a supervisor is trying to communicate in the discipline meeting. -Shows when the meetings took place, what was said during the meetings, and that the employee was given notice of unacceptable behavior and the opportunity to change and improve.

SHOULD A THIRD PARTY BE THERE

-If the employee requests a witness, explain that the witness is there only to observe the meeting, not to act as a representative. -Management may want a third person present if trouble is expected or if an objective third party is needed.

CHECKLIST: PERPARING FOR THE APPAISAL MEETING

-Know the employee's job function -Gather information -Identify critical incidents -Review previous appraisals. -Prepare a development plan. -Plan for the appraisal discussion. -Give the employee an advance copy of the appraisal. -Choose a time and place for the meeting.

BE FAMILIAR WITH COMPANY POLICY

-Managers and supervisors must know and follow their company's leave-of-absence policies

AVIOD INFORMAL DISCIPLINE

-Managers/supervisors must be careful about taking an informal approach to discipline because of the concerns that every situation will not be treated consistently.

Immigration Reform and Control Act of 1986 (IRCA):

-Prohibits discrimination on the basis of citizenship against persons who have a legal right to work in this county. Employers must verify eligibility after Nov 6, 1986 by completing Form I-9, Employment Eligibility Verification.

RESPOND TO A COMPLAINT OF MISCONDUCT

Effectively responding to a complaint of inappropriate conduct requires that managers and supervisors act as a "LEADER." -Listen: adopt a nonjudgmental, professional attitude. -Encourage: Thank the employee for coming forward; try to make the employee feel calm and comfortable about talking to you; acknowledge the employee's feelings. -Ask questions: Who, what, when how, and why. Are they afraid of retaliation? Ask how they want the problem resolved. -Document: Ask the reporting employee to review and sign. -Explain: Policy, confidentiality (not secrecy), defamation liability if malicious or false statements, do not threaten discipline. -Report: Immediately and confidentially submit the information to Human Resources or other management official as outlined in your employer's policy.

Job Interviews: Ask Applicants Job-related Questions Only:

Interview questions that bear no actual relationship to applicants' abilities or qualifications for a job may have the effect of denying employment opportunities to members of protected groups. When choosing questions ask yourself: -Will the answer have the effect of screening out members of a protected class? -Is the information needed to judge an applicant's competence or qualification for the job?

CAN MANAGERS OR SUPERVISORS BE LIABLE?

Many courts have said only employers are held liable. Others have concluded that managers and supervisors can be in some instances in Federal cases. They absolutely can be held liable under state common law.

AVOID RETALIATION

Retaliation is unlawful when it is directed against an individual who has engaged in protected activity

2 important elements to workplace fairness:

o Respond to similar situations in a consistence fashion o Treat people as individuals and in a respectful manner that recognize the valuable contribution each person makes to the company.

VIOLATIONS ARE COSTLY

· Court-ordered penalties o Rehiring of someone o Hiring of an applicant o Back pay o Double back pay o Front pay o Compensatory damages o Nonmonetary losses o Future monetary losses o Past monetary losses o Punitive damages to punish severe violations o Other consequences § Lost productive time of persons involved in resolving claims of unlawful conduct, low employee morale, high employee turnover, harm to the company's reputation and business, government involvement in the company's business practices.

Groups Protected from Discrimination:

· Federal laws: EEO prohibit employer from basing employment decisions on: o Race or color, religion, sex (includes sex harassment, equal pay, and pregnancy), o Age (generally person over 40), disability (physical or mental), National origin, citizenship status, veteran or military status, caregiver, or genetic information. · State laws: Arrests records, marital status, sexual orientation or gender identity, political affiliation, lawful off-duty activities, lactation, credit history, ownership or possession of firearms, victim status (domestic or sexual violence), unemployment status.

Drug/Accohol Problems (How Big is the Problem)

-2011: 8.7 % of individuals above 12 years old -19.9 million 18 years or older -13.1 million (65.7%) were employed -Alcoholic and addicts o Alcoholics are protected under ADA but can be discipline if job performance suffers -Illegal drug users o Are not protected under ADA -Former drug addicts o ADA does protect rehabilitated drug addicts -Persons mistakenly thought to be addicts o Never discipline absence solid evidence. Could be held liable under ADA. -Medical use of Marijuana o Not protected under ADA o Most state courts have not provided employment protection to medical marijuana users o Guard against discriminating

Role of Documentation in Discipline and Termination:

-Adhering to company policies: documentation can indicate whether an employee knew that the policy existed and whether a manager warned the employee about violating the policy. -A valid business purpose: documentation can provide evidence that a valid business purpose exists for the disciplinary or termination action. -Evenhanded treatment: can provide evidence that employees who have engaged in similar conduct were subject to similar discipline. -Accommodation: documentation can provide evidence that an employer engaged in the interactive process of reasonable accommodation. -Investigation: Documentation can provide evidence that an investigation was conducted and employees were given the opportunity to relate their side of the story -Creating a record: Thorough documentation can provide such evidence and substantiate the fact that an employee was told how to improve when he or she needed to improve and what the consequence of failing to improve would be.

PERIODIC MEDICAL EXAMS

-After employment begins, an employer may make disability-related inquiries and require medical exams, only if they are related to the job. -Employers can always test for illegal use of drugs because it is not considered a medical exam under the ADA. o They may not generally subject employees to periodic alcohol testing. -Employers may require employees to submit to periodic fitness for duty exams if warranted by the employee's erratic behavior. o An employee's behavior must be more than annoying.

DOCUMENTATION SHOULD BE TIMELY

-Delay or inaction in documenting an incident can be construed as a waiver of a supervisor's right to take any action regarding that incident.

RIGHTS OF PERSONS INJURED ON THE JOB

-Employees who are injured on the job or who become disable due to job-related injury or illness are entitled to benefits required by state workers' compensation laws. -Same employee is also entitled to FMLA and ADA rights. -Treat every injury as Legitimate

THE REASONABLE ACCOMMODATION DUTY

-Employers have a duty to provide reasonable accommodations to known physical or mental limitations of a qualified person with a disability. o Individuals who are regarded as disabled are not entitled (Must be known to the employer). -A reasonable accommodation is any change or adjustment to a job or work environment that permits a person with a disability to perform the job. -Notice of need for accommodation must be made only to the known physical and mental limitations of a person with a disability. o An accommodation request from an employee or applicant triggers the duty to accommodate. -Take all request for accommodation seriously. -Arriving at an accommodation occurs through give-and-take with the person who requests the accommodation. o This is called the interactive process. -While participating in the interactive process, employers must be careful not to condition continued employment on impossible-to-fill conditions. -If an appropriate accommodation cannot be identified, the US Equal Employment Opportunity Commission should be consulted. -Undue Hardship: An accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the employer's business. -Managers and supervisors must refrain from engaging in disability status determinations, recognize accommodation requests, and remember who to contact for assistance.

RUDE BEHAVOIR THAT DOESN'T QUALIFY AS HARASSMENT

-Even if rude treatment of employees in the workplace does not meet the legal definition of harassment, the conduct should not be tolerated. o The conduct may violate a criminal statute.

Pre-Termination Review (DON'T FIRE SOMEONE ON THE SPOT)

-Every termination decision should be carefully reviewed for fairness, legality, and consistency with employer policy. -Suspension during investigation: an investigation may uncover facts that explain the employee's behavior or make termination inappropriate. -Documentation Audit o Make sure the investigation was complete o Prove that the termination was fair and followed company policies and practices. o Review the documentation.

Documentation: Why Use Documentation?

-Evidence: Personnel decisions are less subject to challenge and when challenged, are more easily defended with documentation. -Performance management: Documentation can provide written goals or objectives that an employee must meet to improve performance. -Communication: Documentation can improve feedback between a manager and an employee. -A record for personnel actions: when managers need to substantiate their actions to others, they use documentation. -Notice to the employee: documentation is evidence that an employee was actually or constructively aware of expectations and policies. -Guidelines for future: documentation eliminates any possible misunderstanding concerning work rules. -Training: Documentation can also be used as a record of an employee's training and development.

HOW TO CONFRONT AN EMPLOYEE

-Expert say that the supervisor should confront the employee about job performance problem with a caring but firm attitude. -Hazelden suggest the following steps to begin a discussion about alcohol or drugs in the workplace: o Educate: On policies regarding alcohol and drug use o Document: Keep record of job performance o Warn: Have informal talk to alert employee to their unsatisfactory job performance. Focus only on job performance. o Refer: Don't diagnosis refer to EAP, HR professional if there is verifiable proof. o Intervene: Offer the employee help thru the company's EAP or social services agencies. o Confirm: evaluate the extent of any problem thru professional assessment. o Follow-up: Once employee is confronted, follow-up is extremely important. -Experts also recommend that you avoid being judgmental -The employee is always responsible for his or her behavior and job performance.

ASK APPLICANTS THE SAME QUESTIONS

-Failure to ask each applicant the same questions potentially can lead to hiring discrimination claims.

GENETIC INFORMATION

-Federal law prohibits employers from acquiring genetic information, it requires employers to keep any genetic information confidentially, and maintained in separate files. -Disclosure exceptions: o Compliance with FMLA certification provisions or similar state laws; o By employee or family member about whom the information pertains, upon receipt of the employyee's or family member written requests; o By occupational or other health researcher conducting research; o In response to a court order, except that the employer may disclose only the genetic information expressly authorized by the order; o To government officials investigating compliance with the federal law prohibiting disclosure, if the information is relevant to the investigation, or o To a public health agency, but only with regard to information about the manifestation of a disease or disorder that concerns a contagious disease that presents an imminent hazard of death or life-threatening illness.

SPECIAL CONFIDENTIALITY RULES FOR MEDICAL RECORDS

-Federal laws require that all employees medical information be collected on separate forms, kept in separate medical files, and treated as confidential medical records -Disclosure of the information is allowed only in the following circumstances: o Supervisors/managers may be told of necessary restrictions on an employee's work or duties and necessary accommodations o First aid and safety personnel may be told if an employee's medical condition might require emergency treatment. o Relevant information may be given on request to government agents investigating law compliance, workers' compensation offices, or insurance companies.

National Labor Relations Act (NLRA):

-Gives employees the right to unionize, the right to bargain collectively, and the right to engage in other activities for their mutual aid and protection.

THE EMPLOYEE SHOULD BE GIVEN A COPY

-Giving the employee, a copy will ensure that the employee is on notice of what is wrong and what must be changed. -Obtain the employee's signature or acknowledgment upon receipt of the copy.

Employee Discipline: (NOTICE OF MISCONDUCT AND OPPORTUNITY TO CHANGE)

-Good management practices require that employees be given: o General notice of their employer's expectations of acceptable performance and workplace conduct; o Specific notice of their unacceptable performance or conduct; and o An opportunity to make necessary changes in behavior. -Clear notice and opportunity to change is the basic structure of an effective discipline system. -Make employees responsible for their own behavior. -Effective discipline minimizes workforce dissatisfaction, increases productivity, boosts morale, and withstands legal challenges.

OTHER TYPES OF ILLEGAL HARASSMENT

-Harassment based on race, color, religion, national origin, genetic information, age, disability, or military status is also illegal. Nonsexual harassment of an employee because of the employee's gender is unlawful as well. -Illegal "harassment" based on race, color, religion, national origin, gender, disability, genetic information, veteran or military status, or age exits when: o An employee is subjected to verbal or physical conduct that shows hostility toward the employee because of the employee's race, color, religion, national origin, gender, disability, genetic information, veteran or military status, or age; and o the conduct has the purpose or effect of interfering with the employee's work performance or opportunities, or creating an intimidating, hostile or offensive work environment.

PUNISHMENT OR REHABILITATION

-If an employee was once productive it may be in the employer's best interest to give rehabilitation a chance rather that firing the employee first. -Rehabilitation is possible and should be considered before termination.

HOW TO EXPLAIN WHY A COWORKER WAS FIRED

-If company policy allows any explanation, only give a very general response. -The supervisor should have a very solid reason for wanting to disclose the information.

Managers and supervisors must apply work rules and work standards consistently:

-If it looks like one approach is being taken in one case but not in another, people may assign improper motives to the action, even if no such motive was present. o i.e.: a black employee was fired for insubordination when she refused to stay late for overtime but a white employer wasn't.

PROVIDE RIDES HOME FOR INTOXICATED EMPLOYEES

-If managers or supervisors send an employee home because of drug and/or alcohol problems should require the employee take a cab home. -Employers could be held liable if you allow an employee to drive impaired.

AVIOD DISABILITY BIAS PITFALLS

-Leave as accommodation: o If not entitled to leave don't automatically deny, consider whether the person is a qualified individual with a disability under ADA for whom the requested absence may be a reasonable accommodation. -Extension of leave o If absence continues beyond leave time don't discipline, consider whether the person is a qualified individual with a disability for whom extension of leave may be a reasonable accommodation. -Reinstatement after accommodation leave: o The employee must be placed in the same job upon returning to work, unless it imposes an undue hardship. -Accommodation upon return o If employee can't perform after returning from a mental related leave do not demote or terminate, consider whether the person is a qualified individual who can be reasonably accommodated to perform the job. -Confidentiality of medical information: o Kept in separate, confidential files

COUNSEL TO IMPROVE UNACCEPTABLE PERFORMANCE

-Managers and supervisors must become more like coaches or counselors instead of enforcers. -A counseling session to improve poor performance may contain the following steps: o Express the performance standards for the job and renew past performance of the employee. Explain why it is important to the department and the organization for the employee to perform well. o Describe the areas of performance that the employee must improve in terms of results that are to be achieved. To the extent possible, focus on the future. Describe what good performance looks like. o Ask for the employee's perspective on his/her performance. Explain the impact on peers, other departments, customers, and the organization overall when the employee does not perform well. o Discuss possible solutions. Have the employee develop steps to solve the problem to create a sense of ownership in the solution. Suspend the session to provide more time for the employee to develop a plan. o Agree to a written action plan containing specific goals and timetables for meeting those goals. o Have the employee verbally commit to the action plan and provide the employee with a copy of the plan. Retain copy for documentation. o Follow up on performance based on the goals stated in the action plan. Provide feedback. Offer concrete suggestions to improve performance. Praise instances where performance has improved.

Workers with Disabilities/Injuries (WHO IS PROTECTED FROM DISABILITY DISCRIMINATION):

-Managers and supervisors need a working understanding of disability laws so they don't inadvertently discriminate against a qualified employee with a disability. -Two requirements must be met before a person is protected from disability bias: o The person must have a disability o The person must be qualified for the job -Individual has a disability if they fall into any of the 3 categories: o The person has a physical or mental impairment that substantially limits one or more of the person's major life activities. o The person is not currently impaired, but has a record of a physical or mental impairment that substantially limited a major life activity. o The person has no such impairment but is regarded by the employer as being impaired. § Individuals who have impairment that are transitory and minor cannot be regarded as disabled. -Managers and supervisors should avoid any discussions of an employee's health, physical restrictions or similar issues. -Pregnancy is NOT a disability. o Impairments resulting from pregnancy could be a disability if they substantially limit a major life activity. -Qualification: a person is qualified for a job if they meet both: o The employer's job requirement for educational, background, employment experience, skills, licenses, and any other qualification standards that are job-related, and o Can perform the essential functions of the job either with or without a reasonable accommodation of the person's disability. -Employers may not: o Use unnecessary qualification standard to weed out applicants with disabilities; or o Rely on inaccurate job description to determine that an employee with a disability can no longer perform their job. -Substantially limits: o An impairment need not completely prevent, or significantly or severely restrict, the individual in performing a major life activity to be considered "substantially limiting. o an impairment that is either episodic or in remission, like asthma or cancer, constitutes a disability if it would substantially limit a major life activity when the impairment is active. -A simple physical characteristic is not a physical impairment. -Managers and supervisors must be extremely cautious when confronted with an issue involving an employee's weight or personal appearance. -Mitigating measures o Medications, assistive technology, physical//behavioral therapy may not be used to determine if a disability qualifies -Relationships with a person with a disability are also protected from discrimination; this is often known as associational discrimination.

PROHIBITED LABOR PRACTICES

-Managers and supervisors should be aware of the following broad categories of "unfair labor practices" that the NLRA prohibits: o Interfering with, restraining, or coercing employees who are exercising their protected labor rights. o Dominating or interfering with the formation of a union, or contributing financial or other support to a union. o Discriminating against employees or applicants based on union membership. o Refusing to bargain with a union that represents a majority of employees. o Entering into an agreement with a union not to do business with another company.

CONFIDENTIALITY OF MEDICAL INFORMATION

-Medical information is protected under ADA. -Records should not be placed in regular personnel files. o Keep in a separate file. -Information protected under ADA may be disclosed: o To supervisor or managers where they need the info in order to provide a reasonable accommodation or to meet employee's work restrictions o EMS o To individuals investigating compliance with ADA and other disability bias laws o Pursuant to workers' compensation laws for insurance purposes

WHO ARE PROTECTED WHISTLEBLOWERS?

-Most states have enacted laws to protect employees who are whistleblowers. -Some states ruled that it violates public policy to fire someone for disclosing a practice that could harm the public or violate the law. -Federal laws protect the disclosure of waste or fraud. -Cover a broad range of disclosure relating to such things as environmental hazards and workplace and consumer safety. -Some states require an employee to complain first to company officials to give the company a chance to correct the problem. -A court will examine whether the employee made the disclosures in good faith, rather than maliciously, and whether the alleged wrongdoing is a violation or a danger that people clearly should not be fired for reporting.

TAKE NOTES DURING THE INTERVIEW

-Notes that you can refer to later will assist you to make an informed hiring decision. -All documentation relating to the interview should be kept for up to one year after a decision to hire or not has been made.

Equal Pay Act of 1963 (EPA):

-Paying workers of one sex at a different rate paid to the other sex is a violation when jobs involve equal skills, effort, and responsibility and are performed under similar working conditions in the same establishment

Performance Appraisals (WHY CONDUCT PERFORMANCE APPRAISALS?)

-Performance appraisals provide a framework to direct employee efforts toward business objectives, to reinforce accomplishments, and to catch and develop employees to improved performance. -5 good reasons to conduct performance appraisals: o Supporting business strategy o Supporting legally defensible personnel decisions o Increasing communication between employees and managers o Improving employee performance o Linking performance with pay

ALTERNATIVES TO IN-PERSON INTERVIEWS

-Phone interviews or videotaped interviews can be conducted by placement or employee search firms, allowing hiring managers to listen or view a set of recorded or videotaped interviews and then select a few candidates from a larger pool of applicants. -They save time and resources -Electronic interviews allow hiring managers to compare responses of multiple interviewees; listen to the recordings or view the tapes at their convenience; and view, analyze and discuss the interviews with other managers, regardless of location. -Electronic interviews should be kept for up to a year after the hiring.

DON'T MAKE EMPLOYMENT PROMISES·

-Promises made to job applicants may be interpreted by courts as implied employment contracts

WHAT IS INVASION OF PRIVACY?

-Publicly disclosing private facts about an employee can result in an invasion of privacy lawsuit.

WHAT IF NOBODY HAS COMPLAINED

-Regardless of how the supervisor became aware of the suspected misconduct, they must immediately and confidentially notify the person designated by company policy to investigate improper behavior. -By taking such actions, legal problems can be avoided.

APPLY RULES AND STANDARDS FAIRLY

-Remember managers and supervisors are "the employer" to most workers.

WHAT ARE THE ELEMENTS OF GOOD PERFORMANCE APPRAISALS?

-Remember two basic rules for effective performance appraisals: o Job-related: descriptions of employee performance must be based on factors relevant to the job. o Specific, observable behavior: performance must be described in specific, objective terms, measured in terms of behavior or actions on the job that can be observed. § Avoid subjective, vague, or overly broad descriptions such as poor attitude or no initiative. -Courts view with skepticism the use of subjective evaluations in making termination decisions.

Sarbanes-Oxley Act of 2002 (SOX):

-SOX gives whistleblower protection to employees of publicly traded companies (and their subsidiaries) and nationally recognized statistical rating organizations who provide information to governmental authorities about conduct they believe to be mail, wire, securities or shareholder fraud.

IMPORTANT FACTS ABOUT SEXUAL HARASSMENT

-Sexual harassers may be coworkers, management personnel, or even nonemployees (such as customers, vendors, sales representatives, or repair workers). -Both men and women may be the victims of sexual harassment. -Either a woman or a man may be the harasser. -The parties to a sexual harassment lawsuit do not have to be of the opposite sex. -The person who brings a sexual harassment lawsuit does not have to be the one at whom the sexual conduct was directed—it may be someone else who was affected by such conduct. -Submitting to the conduct does not necessarily mean the conduct was welcome. -A single incident of unwanted touching, if severe enough, can amount to sexual harassment. -Managers and supervisors can be sued personally for sexual harassment. -An employee who has joined in with sex jokes or sexual banter in the workplace may become a victim of sexual harassment. -Abusive behavior aimed at one sex that is not "sexual" in nature (e.g., a supervisor who is constantly rude to female employees and tells them that they are "stupid bitches") can be unlawful harassment.

AVIOD THE TEMPTATION TO "SOFTEN" A NEGATIVE APPRAISAL

-Softening a negative performance appraisal can result in the employee failing to understand that he or she is doing a poor job. -Negative appraisals are not punishment. -Negative feedback is intended to notify an employee of behavior that falls below expectations and provide an opportunity to improve that behavior before more serious discipline is imposed

State Statutes:

-Some state employment laws grant specific additional rights. o i.e. discrimination bases on sexual orientation or gender identity.

OTHER LEAVE REQUIRED BY LAW

-State military and disaster service leave -Jury duty leave -Witness duty leave -Time off to vote -Time off for school function, if applicable -Blood, bone marrow or organ donation -Paid sick leave

SUPERVISOR'S STATEMENT BECOME EVIDENCE IN COURT

-Statements made by supervisors or managers often become key parts of a court case alleging that an employee was unlawfully fired. -The statements are used by employees to show that a company had unlawful motive for a firing or that a situation existed that unfairly forced the employee to resign. o i.e.: calling female employees "girls" while referring to male employees as men.

TAKE COMPLAINANTS ABOUT IMPROPER BEHAVIOR SERIOUSLY

-Take all complaints from employees seriously -If the employee quits because he or she has come away with the impression that the organization did not take the complaint seriously, the employer could face a constructive discharge lawsuit.

American with Disabilities Act of 1990 (ADA) (as amended by the ADA Amendments Act of 2008):

-The ADA forbids discrimination against qualified individuals with disabilities; the law also requires that reasonable accommodations be made to the known physical or mental limitations of qualified applicants or employees. The Amendments broadened the scope of individual covered. The Amendments shifted the focus away from whether an individual is covered under the ADA toward employer compliance with the law.

Age Discrimination in Employment Act of 1967 (ADEA):

-The ADEA bans discrimination based on age against person who are 40 years or older

Family and Medical Leave Act of 1993 (FMLA):

-The FMLA guarantees covered employees up to 12 weeks of job-protected, unpaid leave each year for any one or more of the following: o The birth, adoption, or foster care of a child o The serious health condition of a child, spouse, or parent o The employee's own serious illness or pregnancy o FMLA also extends the maximum leave to 26 weeks if the person is an injured military personnel. Also entitled to up to 12 weeks unpaid leave due to a "qualifying exigency".

Union Activities (WORKERS' PROTECTED LABOR RIGHTS)

-The National Labor Relations Act (NLRA) gives employees four basic rights: o The right to join or form a union. o The right to bargain collectively, through employee-chosen representatives, about wages, hours, and working conditions. o The right for employees to act together to improve their working conditions, whether or not they are unionized. o The right to refrain from taking part in labor activities.

PROTECTED GROUP COMPLAINTS

-The National Labor Relations Act also gives employees the right to engage in other activities for their mutual aid and protection. -How do you know when the action that an employee takes is protected concerted activity? o The activity must be "concerted". § The basic point for supervisors and managers to remember is that if two or more people come forward with a complaint or suggestion, there is a labor law issue. § If one person comes forward to make a general complaint or suggestion about working condition affecting several employees, that employee may also have protection. o The activity must be protected.

WHAT TO DO DURING THE TERMANATION MEETING

-The actual meeting to inform an employee that they are being terminated should be brief, taking about 10 minutes -The following steps should be kept in mind: o Emphasize the following points: § The decision is final cannot be reversed § All relevant factors were reviewed § There is agreement at all management levels o Display empathy for the employee's situation but do not sympathize or try to be a friend. o Don't hold out any hope that the decision will be changed or that there is a possibility for any kind of bargaining. o Don't "blame" the decision on upper management o Don't lose control of the meeting or stray from the central issue of informing the employee of a predetermined result. o Don't respond to a threat to file a lawsuit. o Don't discuss the situation of any other employee; this meeting concerns solely the employee. o Communicate the reasons for the termination in factual terms. Do not make value judgements about the person's character or work ethic. o End the meeting by telling the person the effective date of termination and the manner in which to leave the premises. o If the employee is to leave immediately, have any final checks, benefits, or vacation payment prepared and inform the employee how and when to collect their personal belongings. o Wish the employee good luck and express confidence in their future.

UNION REPRESENTATION AT INVESTIGATORY INTERVIEWS

-The employee has a right to bring a union rep if the interview is part of an investigation and may result in the employee being disciplined or fired -If the interview is to inform of final disciplinary disposition or if the employee did not request representation, the employee does not have a right to representation. -Once representation is requested: o Grant the request o Stop the interview o Offer the employee the choice of continuing w/o representation or having no interview at all. However if an employee wants a Union representative, it's illegal to continue.

Conducting a Termination Meeting (WHAT SHOULD THE TERMINATION MEETING ACCOMPLISH?)

-The meeting should be conducted in a manner that maintains the dignity of the person being terminated as well as the reputation of the company as an employer that deals fairly with its people. -To decrease potential liability, the termination meeting should be conducted in a manner that: o Maintains the dignity of the person being terminated and minimizes as much as possible the resentment the discharged person feels toward the company. o Explains the reason for the discharge.

Whistleblowering/Group Complaint (WHAT IS WHISTLEBLOWING PROTECTION)

-The most common successful claims involve safety, environmental hazards, or fraudulent practices -Can arise from situations as simple as an employee making a complaint about another employee's actions or refusing to do something that the employee feels is illegal.

BE DISCREET

-The privacy rights of both the accuser and accused must be respected by management always.

PROGRESSIVE DISCIPLINE FOR "REPEAT OFFENDERS"

-The steps outlined above often are the first steps in the progressive discipline process. -Progressive discipline o Oral warning o Written warning o Suspension o Termination § Consider last chance agreements: they are a way to underscore that employees will lose their jobs as a consequence of their behavior. +Consult w/ your HR department before undertaking a last chance agreement § Always know/follow your company's policy

Title VII of the Civil Rights Act of 1964 (Title VII):

-Title VII prohibits discrimination based on race, color, religion, sex, or national origin.

NONUNION ACTIVITY CAN BE PROTETED

-To act together for mutual aid and protection is the right of unionized and nonunionized employees.

WHAT ARE THE DEFENSES TO DEFAMATION?

-Truth -Consent -Qualified privilege o Managers and supervisors have a "qualified privilege" to speak openly about an issue concerning an employee with persons, such as other members of management, who have a legitimate need to know about the matter. o Privilege can be lost if statement is motivated by ill-will or is made to or heard by persons who do not have a need to know the information or the information is not job-related.

Time Off From Work (FAMILY AND MEDICAL LEAVE)

-Types of leave (12 weeks) o Birth, adoption, or foster care of a child; child's, spouse's, parent's, employee's serious health condition; employee's pregnancy; any qualifying exigency for a spouse, son, daughter or parent of a military member who is on active duty. -Maternity and paternity leave -Parent/child relationships does not have to be legal or biological. -Leave for families of injured military personal may take up to 26 weeks of unpaid leave. -Serious health condition: o Any period of incapacity connected with impatient care o Any period of incapacity requiring absence of more than 3 consecutive, full calendar days from work, school, or other regular activities that involves continuing treatment by or under the supervision of a health care provider. o Continuing treatment for a chronic or long-term health condition. o Incapacity due to pregnancy or prenatal care. -Non-serious health conditions are not eligible. o FMLA leave in connection with substance abuse may only be taken for treatment. -To be eligible for FMLA leave, an employee must have worked for 12 months but not continuously. o Must have worked at least 1250 hours during the 12 months -Employee notice of leave must be given in advance, 30 days' notice. If impractical must be given as soon as possible. -Eligibility notice from employers must be given within 5 days of request. o Ineligible employees must be told why. o Notice may be oral or written -Designation (counted as FMLA) of FMLA leave must be given within 5 days. -Certification of qualifying exigency o Employee may be required to provide copy of military member's duty orders o Certification from health care provider may be requested -Medical certification o Employers may require health care giver certification o Employers have 5 days to request certification and the employee has 15 days to provide it. o Supervisors or managers are not allowed to contact health care providers. -FMLA is unpaid leave o Employer and employee may agree to use paid leave. -Notice of intent to return to work o Managers/supervisors may request periodically update on status and their intent to return after leave expires. o FMLA protections ends for employees who say they are not returning. -Job restorations o Must be restored to their original job or a job with equal pay, benefits, and working conditions. o Employers may lawfully and appropriately discipline and discharge employees on FMLA leave on the same basis as every other employee, but make sure your investigation is both complete and honest.

How Discrimination Occurs (Unintentional Discrimination-Disparate Impact):

-Unintentional discrimination takes place when a job requirement that applies to all employees tends to exclude members of a protected group.

How Discrimination Occurs (Intentional Discrimination-Disparate Treatment):

-Unlawful discrimination is usually the result of a deliberate intent to base an employment on a protected group. o To avoid charges of intentional discrimination * Use only job-related factors as the basis for employment decisions * Never base an employment decision on a person's membership in a protected group * Treat employees consistently and fairly

BASIC STEPS OF DISCIPLINE

1. Inform the employee that they have engaged in specific conduct that is unacceptable remind the employee that certain conduct is excepted. 2. Explain that the improper conduct must change. 3. Discuss consequences that will occur if the employee fails to accept responsibility for and to change unacceptable behavior as well as the potential benefits of changing the improper behavior. 4. Explore the reasons for the unacceptable behavior. 5. Working with employee, jointly develop an agreed-upon action plan that the employee will undertake to change the unacceptable behavior. 6. Document the disciplinary process.

DOCUMENT COMMUNICATIONS WITH ALL EMPLOYEES

Documentation should be a standard and consistent practice. Inconsistent documentation may be used to show that a person was disciplined or discharged for discriminatory reasons.

Harassment/Improper Behavior:What is Sexual Harassmant?:

Sexual harassment prohibited by law is unwelcome verbal or physical conduct of a sexual nature when: -Submitting to the conduct is made either an explicit or implicit term or condition of employment (such as promotion, training, overtime assignments, leaves of absence); or -Submitting to or rejecting the conduct is used as a basis for making employment decisions; or -The conduct is severe or pervasive and substantially interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.