MGT 4310 Final

Section 585 of the National Defense Authorization Act of 2008

-Amends the FMLA -Amendment permit a "spouse, son, daughter, parent or next of kin" to take up to 26 workweeks of leave to care for a member of the Armed forces (including NG/Reserves) who is undergoing medical treatment, recuperation or therapy, temporary disability, injury/illness

Medical Confirmations

-An employer may require medical certification of the need for the absence or leave -The employer may be allowed to question the employee's need for leave if it requires the employee to provide medical certification

Worker's Compensation

-Compensation for employees injured "in the course of employment" It can be the employee's fault, negligent, careless etc. Working in the scope of your employment Entitled to all medical bills paid, continued wages (~60% without tax) Permanent damage? Entitled to get paid for that finger (down to the knuckle)

Notice Requirements of the FMLA

-Employers must notify their employees -Courts sometimes hold in favor of employers when employees had not given any notice. -Under the FMLA, an employer may require medical certification of the need for the absence or leave -The employer may question the employee's need for leave if it had required the employee to provide medical certification when the employee has taken several days off to seek treatment -The leave need not be taken all at once -If the requirements are met, an employer must grant the requested leave -The employee does not need to be paid but some provisions regarding insurance coverage are specified in the law -The FMLA guarantees job protection -Employees who take leave pursuant to this statute are entitled to return to the same or an equivalent position & benefits as they had previously

Characteristics of a Good Manager

-Informed (know company's policies, changing employment laws, etc) -Select good employees (take the time to select employees that will improve their organization, recruit from a broad selection, retain quality employees, look for diversity) -Consistent (treat everyone the same, application process the same) -Document (helps deal with employee challenges) -Communication (listen to employees, follow up on their issues, make time for them) -Take their Time for Decisions (good decision > quick decision) -Avoid Favoritism (even the appearance of it) -Discipline (make it about correcting, not punishing, consistent, fair)

US Policy against restraint of trade

-Law is interested not only in protecting individual rights & competition, but also in reasonable protection of a company's proprietary interests

State Workers are covered how in regards to worker's compensation?

-State Laws, which require employers to compensate the injured workers as well as to pay them a portion of their salaries during their time off

Work for Hire: Employee

-When an employee creates intellectual property in their normal work for a company, there is no need to create an agreement -There is a presumption that such efforts are the equivalent of a work-for-hire arrangement -An agreement can be drawn up as a precaution

Work for Hire: Independent Contractor - Advice for Employers

-draw up a written agreement before any work begins -state in the agreement that the creator of the work shall grant all rights, title, & interest in & to the work to all the company -state that the work is to made exclusively for the company -state that in the event the provisions of the copyright do not recognize the work as having been done in a work-for-hire agreement, the creator agrees to do whatever necessary to assign the intellectual property to the company & transfer exclusive title in the work to the company

Reasons Employees can request leave

-employee has serious health condition -needs to care for a newborn child, newly adopted child or a child placed with them for foster care -needs to care for a child, parent, or spouse who has a serious health condition -because of any qualifying exigency

Who is covered under HIPAA?

-health care providers -health care clearinghouses -health plans

What should an employer do if an employee might be eligible for FMLA, Worker's Comp, or ADA benefits and rights under their provisions?

-identify the various laws that govern leave policies -determine the differences between FMLA & state family leave laws - specifically, review the purposes for which leave must be granted - the length of leave that must be provided under state law -benefit continuation requirements under state law -whether state law mandates salary continuation during leave -whether state law guarantees job restoration after a leave -whether state law requires medical verification

The need of restrictive covenants

-in a high tech, competitive world, valuable knowledge regarding software, trade secrets, etc is jealously guarded.

Employers must take what steps to provide information to employees about the FMLA?

-post a notice approved by the secretary of labor explaining rights and responsibilities under the FMLA -include information about employee rights and obligations under the FMLA in employee handbooks -if handbooks or other written material does not exist, provide general written guidance about employee rights and obligations under the FMLA whenever an employee requests leave -provide a written notice designating a leave as FMLA leave and detailing the specific expectations and obligations of an employee who is exercising his or her FMLA entitlements

Americans with Disabilities Act (ADA)

-prohibits employers from discriminating against people with disabilities. -protects people with permanent impairments that substantially limit a major life activity -for worker's compensation benefits/FMLA protection the health problems can be short-term or limited duration

What does a plaintiff in an employee privacy rights case need to prove to make a prima facie case?

-the facts disclosed are private -the disclosure is made to the public -the disclosure is one that would be highly offensive to the reasonable person -the facts disclosed are not of a legitimate concern to the public -the defendant acted with reckless disregard of the private nature of the facts disclosed

After receiving notice of an employee's wish for FMLA leave what should employer notice include?

-the leave will be counted against the employee's annual FMLA leave entitlement. -any requirements for the employee to furnish medical certification & the consequences of failing to do so -employee's right to elect to use accrued paid leave for unpaid FMLA leave & whether the employer will require the use of paid leave and the conditions related to using paid leave -any requirement for the employee to make co-premuim payments for maintaining group health insurance & the arrangements for making payments -any requirement to present a fitness-for-duty certification before being restored to work -rights of job restoration upon return from leave -employee's potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave -whether the employee qualifies as a key employee and the circumstances under which the employee may not be restored to his or her job following leave

Proposed Revisions to the FMLA

-the timing of employee notification of need for FMLA leave -medical certification provisions -employer obligations for providing notice of FMLA rights -Call-in procedures for intermittent leave -definition of a serious health condition

Major problems employees face with regard to FMLA compliance is...

1. Coordinating benefits & leaves mandated by state and federal laws 2. Making sure to adhere to disability laws and worker's compensation laws

Checklist for Discipline - Do I have the Necessary Facts?

1. Did I allow the employee to fully explain the incident? 2. Do I have the employee's supervisor's story? 3. Were all the sources of information examined? 4. Did I hold my interviews privately? 5. Was the information verified? 6. Is there any unlawful discrimination involved? 7. Am I impartial?

Checklist for Discipline - Have I Followed the Rule of Just Cause?

1. Did I consider the best way to apply discipline? 2. Am I prepared to explain why the action is necessary? 3. Am I prepared to give constructive advice to prevent a reoccurrence of the offense? 4. Have I prepared the proper documentation? 5. Have I considered the seriousness of the offense in relation to the performance & record? 6. Have I used disciplinary action in a way that is positive (constructive), instead of negative? 7. Am I acting within a reasonable time after the violation?

Checklist for Discipline - Did I Follow Up?

1. Has the discipline had a constructive effect? 2. Have I done everything possible to overcome any resentment? 3. Has the action had the desired effect on other employees in the department?

Enforceability on Restrictive Covenants Not to Compete (SC)

1. Necessary for the protection of the legitimate interest of the employer 2. Reasonably limited in its operation with respect to time, place and work activity 3. Not unduly harsh & oppressive in curtailing the legitimate efforts of the employee to earn a livelihood 4. Reasonable from the standpoint of sound public policy 5. Supported by valuable consideration

Checklist for Discipline - Am I Following Policy?

1. What is the policy? 2. Has the policy been violated? 3. What has been the practice regarding this policy? 4. Am I following the policy/practice?

Worker's Compensation applies to organizations/corporations with

4+ employees

Major Provision of FMLA

An employee who has worked for an employer for at least 12 months for a minimum of 1250 hours is entitled to 12 weeks of leave in a 12-month period

Ownership of Intellectual Property

Copyright, patent, trademark & service mark protection is a vital concern for all firms of any size, especially those in high-tech industries

Who enforces GINA?

EEOC

Family & Medical Leave Act of 1993

Establishes an employee's right to take leave for family reasons.

T/F - Genetic testing is not really a serious workplace issue.

False. Genetic testing in the workplace is on the rise.

T/F - Federal laws like the ADA protect employees from genetic discrimination in the workplace.

False. Limited protection at best.

T/F - Certain work environments may hasten the onset of genetically based diseases and the genetic testing can protect employees who are at risk.

False. No empirical data supports this.

T/F - Genetic testing is an accurate way to predict disease.

False. Not always accurate.

T/F - State employment discrimination laws protect workers against genetic discrimination.

False. Only 12 states have enacted laws that protect employees from genetic discrimination in the workplace

T/F - Genetic tests are reliable and safe.

False. They are unregulated by the FDA

In regards to worker's compensation, nonmilitary federal employees are covered by the...

Federal Employment Compensation Act

Is there a guarantee of job protection and a requirement that the employee be granted leave within a specified maximum period under worker's compensation laws?

NO

Under the ADA, is an employee required to provide leave for a disabled employee?

NO

What is the difference regarding employee privacy rights for private & public sector employees?

Private sector employees do not get due process. Private sector employers do not have to worry about constitutional rights because those are only guaranteed by the government, not by private enterprises

Can the FMLA & worker's compensation benefits overlap?

YES

Could an employee get short periods of time off if that would make it possible for them to still do the essential functions of their job?

YES, as long as the accommodation does not create an undue hardship on the employer

Who does GINA apply to?

all entities with 15+ employees

Restrictive Covenants

contractural provisions that limit a person's right to compete with another. can be broad or narrow in scope -for many years employers have required employees to sign noncompete agreements and confidentiality agreements

SC Law on Restrictive Covenants Not to Compete

covenants are generally disfavored and will be strictly construed against the employer

Genetic Information Nondiscrimination Act of 2008 (GINA)

prohibits discrimination in employment & health insurance based on a person's genetic information or the genetic information of a person's family members *requires employers to protect the confidentiality of individuals' genetic information

Who is exempt from HIPAA?

self-insured group health plan that has fewer than 50 participants

Health Insurance Portability & Accountability Act of 1996 (HIPAA)

sets forth privacy rules regarding matters of health

If a machine in the factory you work in is malfunctioning and cuts off your finger, you can sue...

the makers, not your employer/fellow employees