Employment Law | Pharmacy Law
Exceptions to Equal Pay Act
Can pay different salaries for doing different work if the difference is based on seniority, merit, an incentive system or factors other than gender.
Colorado Statutes
Colorado Anti-Discrimination Act (CADA)
Colorado is NOT a "right to work" state
Colorado Labor Peace Act (§8-3-101 et seq.)- most employees are not required to join or pay union dues, even if receiving same compensation and benefits of union members, but non-union workers are not covered by union protections (e.g. legal representation)
Sexual Orientation issues
Colorado Sexual Orientation Employment Discrimination Act (SOEDA)
Litigation is costly
Cost of defending one employment lawsuit: ~ $250,000 (plus)
Immigration Act enforcement
Enforced by the U.S. Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices
Enforcement of the Civil Rights Act
Enforcement through the U.S. Equal Employment Opportunity Commission (EEOC)
Determining whether they are an independent contractor-
Key question is whether the employer has direct control over the party or do they have independence to make their own job decisions
Public Policy Exception
-employer may not fire an employee if it would violate the state's public policy or a federal or statute. - examples- cannot be fired for informing authorities of a violation at the company - also cannot be fired for refusing to take an action that would violate public policy (e.g. professional ethical codes)
Disparate impact
-employment practice that may seem neutral on its face, but that has a disproportionate impact on a protected group of people (e.g. mandatory retirement practices or English-language only rules) •Practice still may be legal if there is a valid business reason (e.g. strength requirements for certain jobs such as firefighters)
Hostile work environment- employer can avoid liability only if it can prove that
:1) it reasonably tried to prevent and promptly correct the harassing behavior; 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Colorado is an "Employment at Will" state-
Absent a contract, neither an employer nor an employee is required to give notice (advance or otherwise) of resignation or termination, and they are not required to give any reason for that resignation or termination
Exceptions to "Employment at Will"
•Statutory exception (e.g discrimination or harassment) •Against public policy-examples include filing worker's compensation claim, retaliation for threatening or bringing a lawsuit, serving on a jury, engaging in lawful off-duty activities, whistleblowing, etc. •Contract (or promissory estoppel)- may also apply if employer has an established termination policy that constitutes an express or implied contract.
Employment Definite Period of Time
•Typically a written agreement specifying the terms of the employment (duration, compensation) •Either party can be liable for damages to the other for terminating the employment without just cause (i.e. breach of contract).
Independent Contractor
a party hired for a specific job or purpose (may be on-going) but that is not an employee of the company
Hostile Work Environment
conduct that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive.
Employment law
is concerned with the relationship between employers and employees.
Older Workers Benefits Protection Act (OWBPA)
protects discrimination over benefits.
Disparate treatment
treating an employee differently based on their protected class
Polygraphs in states
- Inadmissible in Colorado (both civil and criminal courts). -Varies by other states
Different types of harassment
- Quid pro quo ("something for something") - Hostile Work Environment
Equal Pay Act
- Requires employers to give men and women equal pay for equal work. -Two jobs may be equal even if they have different job titles. •No minimum number of employees, applies to ALL employers •Enforced by the EEOC
Key difference from Title VII of the Civil Rights Act
-Also makes it illegal to knowingly hire or retain employees who are not authorized to work in the US -Employers are required to examine employee documents and keep records verifying employees are authorized to work in the US
Types of drug testing
-Applicants -Random -Incident -Health/Safety jobs (e.g. pharmacists)
Employer liability
-Automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. -Employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.
Grounds for discharging an employee (3)
-Breach of confidentiality -Breach of loyalty
Use of genetic information
-Certain exceptions for certification requirements of the FMLA, information inadvertently learned, and certain information used for genetic monitoring. -Must keep any information confidential and may not use that information for any employment decisions
Federal Laws (1)
-Civil Rights Act of 1964 (Title VII) -Age Discrimination in Employment Act (ADEA) -Americans with Disabilities Acts (ADA)
The Polygraph-
-Created in the early 20th century by various inventors including William Marsden (also the author of the comic character Wonder Woman) -Device that measures blood pressure, heart rate, respirations and skin conductivity (sweat) to determine whether a person is lying -Frequently used as an interrogation tool - what drug is also used for that? -Questionable reliability [ADD APA statement]
Grounds for discharging an employee (1)
-Dishonesty -Neglect of duty -Incompetence
In general, there are two types of employment
-Employment contracts for a definite period of time -"At-will" employment
Americans with Disabilities Act enforcement
-Equal Employment Opportunity Commission (EEOC) and -U.S. Department of Justice
Federal Laws (2)
-Equal Pay Act -Immigration Reform and Control Act -Genetic Information Nondiscrimination Act
Public employees may have additional constitutional protections
-Fourth amendment (searches) -Fifth amendment (due process) - ADA protects rehabilitated employees
Prevention is essential:
-Have a written policy on harassment -Required training of ALL employees -Establish an effective complaint or grievance process -Take immediate and appropriate action when an employees files a complaint -No retaliation for filing a complaint
Temporary disability
-If a women is unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat her the same as any other temporarily disabled employee. -Allows employee to take disability leave or leave without pay when temporarily disabled due to pregnancy -Other impairments resulting from pregnancy (e.g. preeclampsia) may be covered by the ADA requiring the employer to provide a reasonable accommodation.
Sexual Harassment is a form of harassment because of the person's sex.
-Includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. -But it does not have to be of a sexual nature, and it can include offensive remarks about a person's sex (e.g. offensive comments about men or women) -Generally simple teasing, offhand comments, or isolated incidents that are not very serious rise to the level of harassment, but frequent or severe conduct may be sufficent
Offensive conduct
-Includes- offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. -Excludes- petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.
Grounds for discharging an employee (2)
-Inefficiency -Failure to follow instructions -Insolence or disrespect
Potential for
-Large jury verdicts -Bad publicity -Bad morale
Employers in SOEDA
-May not make pre-employment inquiries into an applicant's sexual preference. -May not have separate lines of progression or seniority systems for employees of different sexual orientation. -May not express a preference for a particular sexual orientation in job advertisements. -Must allow each employee to dress according to the gender the employee identifies with, even if the employer has a gender-specific dress code.
Who can be harassed?
-The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee. -The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct. -Unlawful harassment may occur without economic injury to, or discharge of, the victim.
Employee Polygraph Protection Act
Federal law that prevents private employers from requiring employees to submit to polygraph tests (either pre-employment or while an employee)
Harassment and Discrimination
Harassment is a form of discrimination that may violate any of the Title VII of the Civil Rights Act, the ADEA or the ADA.
Exceptions to Polygraph Protection Act
job applicants of pharmaceutical manufacturers, distributors and dispensers; also workplace theft that resulted in specific economic loss to employer
Violations of the Civil Rights Act
need to show either disparate treatment or disparate impact
Undue hardship test
• employer does not have to make a reasonable accommodation if it would cause an undue hardship. -Would the accommodation cause more than a minimal burden on the employer. -An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.
Sexual Harassment
•Can be a 1) hostile work environment or 2) results in an adverse employment decision • Victim and harasser are not limited by gender- either can be a woman or a man, and both can be the same gender •Not limited to employer/employee relationships- may also include other supervisors, co-workers, or clients or customers
Employment law exceptions
•Cannot discharge based on race, sex, religion, national origin or age. •Also not for union activities •Typically cannot discharge for temporary illnesses, but possibly may for prolonged illness.
Colorado Anti-Discrimination Act (CADA)
•Colorado's version of the Civil Rights Act, ADEA, and ADA. •Prohibits discrimination based on a person's sexual orientation, religion, disability, race, creed, color, sex, age, national origin or ancestry. •Makes it illegal to "refuse to hire, to discharge, to promote or demote, to harass during the course of employment or to discriminate in matters of compensation against" any of the classes above. •Applies to ALL employers regardless of size. •Colorado Sexual Orientation Discrimination Act (SOEDA)
Why this matters?
•Employers are not liable for torts of their independent contracts •Independent contractors are not "employees" and therefore are not covered by the various benefit laws (e.g. worker's compensation)
Employment issues
•Employment issues are distracting to employers and customers •Employment issues create inefficiencies
Age Discrimination Act enforcement
•Enforced by the Equal Employment Opportunity Commission (EEOC) -Generally have 180 days to file a complaint (may be extended by state law). Exception- federal employees have 45 days to contact an EEO counselor.
Colorado Sexual Orientation Discrimination Act (SOEDA)
•Expands CADA to cover sexual orientation •NOTE- there is no equivalent federal law
Pregnancy Discrimination Act (PDA)
•Forbids discrimination based on pregnancy when it comes to any aspect of employment. •Prohibits harassment because of pregnancy, childbirth or medical conditions related to pregnancy or childbirth
At-will Employment
•No written employment contract; oral agreement instead •Indefinite time period •Either party can terminate the employment for no reason •Most pharmacists are employed at-will
Americans With Disabilities Act
•Prohibits discrimination against people with disabilities in any aspect of employment. •Broad definition of disability- not only includes employees/applicants with disabilities, but also those with a history of disability (e.g. cancer in remission) or perceived disabilities. •Applies to employers with at least 15 employees (except federal employees who are covered under the separate Rehabilitation Act)
Religious Discrimination (Title VII)
•Prohibits discrimination based on a person's religious beliefs. •Broad definition of religion- includes any sincerely held religious, ethical or moral beliefs. •Employer must make a reasonable accommodation for the employee (e.g. reasonable adjustments to the work environment to allow an employee to practice their religion) -Examples- flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.
Age Discrimination in Employment Act (ADEA)
•Prohibits discrimination based on age against employees at least 40 years old. •Also cannot retaliate against an employee or applicant based on their asserting rights under the ADEA. •Covers all aspects of employment including hiring, firing, compensation, job assignments, promotions and discipline. •Applies to employers with at least 20 employees
Title VII of the Civil Rights Act
•Prohibits employers from discriminating against employees and applicants on the basis of race, color, religion, sex or national origin. •Covers all aspects of employment including hiring, firing, compensation, benefits, job assignments, promotions and discipline.
Immigration Reform and Control Act of 1986 (IRCA)
•Prohibits employers from discriminating against employees or applicants on the basis of citizenship or national origin •Covers all aspects of employment including hiring, firing, compensation, benefits, job assignments, promotions and discipline. •Applies to employers with at least four (4) employees
Genetic Information Nondiscrimination Act (GINA)
•Prohibits employers from using an employee's/applicant's genetic information as the basis for employment decisions and requires employers to keep genetic information confidential. •Prohibits employers from requiring or asking employees to provide genetic information. •Applies to employers with at least 15 employees •Enforced by the EEOC
