Exam 4

Illegal drugs handled under ADA

"Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction."

Serious Health Condition FMLA

"an illness, injury, impairment, or physical or mental condition that involves: inpatient care in a hospital, hospice, or residential medical care facility; or. continuing treatment by a health care provider."

Measures for protecting employees' privacy

-Ensure that the information is relevant. -Publicize information-gathering policies and consequences. -Request consent before gathering information. -Treat employees consistently. -Conduct searches discreetly. -Share information only with those who need it.

Progressive Discipline responses

-Unofficial spoken warning -Official written warning -2nd written warning plus threat of temporary suspension -Temporary suspension plus written notice that this is a last chance to improve -Termination

Guidelines to Respond to Misconduct

1.Be clear about performance standards. 2.Be consistent. 3.Don't ignore the problem behavior. 4.Investigate complaints ASAP and thoroughly. 5.Record statements in writing, with signatures & dates. 6.Focus on behaviors not personalities 7.Documentation should be clear and complete. 8.Be honest

Conditions for Effective Gainsharing

1.Management commitment 2.Need for change or commitment to continuous improvement 3.Management acceptance and encouragement of worker input4.High levels of cooperation and interaction5.Employment security6.Information sharing on productivity and costs7.Goal setting8.Commitment of all parties to process improvement9.Performance standards and calculations that are fair, relevant, and understandable10.Employees who value working in groups

ADANCING WITH WOLVES@ ADA/FMLA/WORKERS= COMPENSATION

A CASE STUDYJOHN, A LONG TERM MAINTENANCE EMPLOYEE, SUFFERED SEVERE JOB RELATED INJURIES RESULTING IN THE LOSS OF HIS RIGHT UPPER EXTREMITY AND HAS BEEN OUT OF WORK REHABILITATING FOR 18 WEEKS. HIS EXACT DATE OF RETURN TO WORK IS UNCLEAR. HE HAS SOUGHT AND IS RECEIVING WORKERS= COMPENSATION BENEFITS. YOUR COMPANY NEEDS TO FILL THAT POSITION. WHAT ARE THE ISSUES IN DECIDING WHETHER OR NOT TO TERMINATE JOHN=S EMPLOYMENT?The laws applicable to employees with a health problem, particularly employees requiring a medical leave of absence, present employers with confusing sets of rights and obligations. This area of the law, where the Americans with Disabilities Act (ADA) as Amended, the Family and Medical Leave Act (FMLA) as Amended, and the South Carolina Workers= Compensation Act overlap, has been referred to as the AThree Headed Monster.@SEPARATE ANALYSIS REQUIREDWhen faced with an employee with a health problem, employers must analyze carefully the potential sources of obligation. As a general matter, employees are entitled to the greatest protection offered by any of the statutes. Which statute provides the greatest protection will depend on the specific facts of the particular situation at the particular time. Accordingly, employers must separately analyze the application of each statute (and collective bargaining agreement and employer policy) in light of each specific situation to ascertain which provides the greatest benefits to the employee. Compliance with one statute is rarely a defense to non-compliance with another. The employer should document the results of this analysis and clearly inform the employee as to which benefits are being offered. I.THE STATUTES A. Americans with Disabilities Act The ADA forbids discrimination on the basis of disability and requires accommodation of employees and applicants with disabilities. It is enforced by the EEOC or by private litigation after the filing of an EEOC charge. The statute is codified at 42 U.S.C. ' 12101 et seq. The EEOC has issued regulations (29 C.F.R. Part 1630), an Interpretive Guidance (appendix to 29 C.F.R. Part 1630), aTechnical Assistance Manual (hereinafter referred to as AT.A.M.@), and numerous policy statements. B. Americans with Disabilities Amendment Act of 2008 Effective January 1, 2009, Congress amended the Americans with Disabilities Act and reversed several Supreme Court decisions which have narrowed the definition of Aa disability@ and directed that the term be construed in favor of broad coverage of individuals to the maximum extent permitted. To be disabled it must substantially limit only one major life activity. Major life activities have been extended to include such things as: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. It also now includes internal body functions such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. No longer will mitigating measures be considered. In other words, the disability must be determined without reference to the ameliorative effects of mitigating measures. An episodic or in remission ailment qualifies as a disability if it substantially limits a major life activity. To be Aregarded as disabled@ one needs only to show that the employer viewed the employee as having an Aimpairment@ without regard to the impact of the perceived impairment on major life functions. The result of the amendment shifts the issue from the question of whether the employee is disabled to whether the employer had a legitimate non-discriminatory reason for its decision. C. Family and Medical Leave Act The FMLA provides leaves of absence with reinstatement rights and continuation of benefits. It is enforced by the Department of Labor or through private litigation. The statute is codified at 29 U.S.C. ' 2601 et seq. The Labor Department final regulations can be found at 29 C.F.R. Part 825 (1995). D. Family and Medical Leave Act Amendment of 2008 Effective January 28, 2008, the Family and Medical Leave Act was amended to provide protection for employees who have family members in the military. The new amendment provides that because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. That employee is entitled to up to twelve (12) weeks leave during a twelve (12) month period. Also, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the service member. The leave shall only be available during a single 12-month period. During the single 12-month period, an eligible employee shall be entitled to a combined total of 26 workweeks for all FMLA leaves. ACovered Servicemember@ means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. E. Workers= Compensation Laws The primary purpose of the South Carolina Workers= Compensation Act is to replace lost income and to fund medical care for workers injured on the job. The statute is codified at S.C. Code Ann. ' 42-1-10 et seq. F. South Carolina Anti-Retaliation Statute South Carolina statutory law prohibits an employer from discharging or demoting any employee because the employee has, in good faith, instituted any proceeding under the South Carolina Workers= Compensation Act, or has testified or is about to testify in any such proceeding. The statute is codified at S.C. Code Ann. '41-1-80. C.AMERICANS WITH DISABILITIES ACT AND FAMILY MEDICAL LEAVE ACT COMPARISONA.COVERAGE: Employers A. ADA The ADA covers all employers with 15 or more employees. 42 U.S.C. '12111(5)(A). B.FMLA The FMLA covers private employers with 50 or more employees working within 75 miles of an employee=s work site, and all public employers, regardless of size. 29 U.S.C. '' 2611(2)(B) and (4) (A). Employees 1.ADAa.Covers qualified applicants and employees with disabilities, regardless of the length of time or amount of time they have worked. b. Protects applicants and employees because of a Arelationship with@ an individual with a disability, even if the disabled individual is not directly related to the applicant or employee. 29 C.F.R. ' 1630.8. c. Does not protect illegal drug users, homosexuals and bisexuals, individuals with gender identity disorders, compulsive gamblers, kleptomaniacs, and pyromaniacs. 42 U.S.C. ' 12211(a) and 29 C.F.R. ' 1630.3(d-e). d. Excludes from coverage applicants and employees with temporary impairments or those who may be disabled because of advanced age or pregnancy. e. Does not protect applicants or employees who cannot perform the essential functions of their job, with or without reasonable accommodation. 42 U.S.C. ' 12113(a). 1.FMLA a. Does not apply to applicants. b. Protects only employees who have been employed for at least 12 months and who have worked at least 1,250 hours in the past 12 months. 29 U.S.C. ' 2611(2)(A). As a result, short-term and some part-time employees are not entitled to FMLA leave.c.Does not require that employees be Aqualified@ or have a Adisability@ to be entitled to leave; however, leaves are granted only for Aserious health conditions@ of the employee and his or her spouses, children and parents (not just anyone with a Arelationship@ to the employee). 29 U.S.C. ' 2612(a)(1)(A-D).d. ASerious health condition@ means an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care in a hospital; or (2) continuing treatment by a health care provider, including a period of incapacity of more than three consecutive calendar days, any period of incapacity caused by pregnancy or for prenatal care, any period of incapacity or treatment for such incapacity because of chronic serious health condition. 29 U.S.C. ' 2611(11)(A-B). e.It also provides leave for:(1)Birth and/or care of a child of the employee;(2)Placement of a child into the employee=s family by adoption or by a foster care arrangement;(3)Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. (4)An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for an injury or illness incurred by the service member in the line of duty.B.RELATIONSHIP BETWEEN FMLA AND ADANeither the ADA nor the FMLA supersede each other to the extent that the other provides greater or equal rights to covered employees. See, 29 U.S.C. ' 2651(a); 42 U.S.C. '12201(b). One or both of the Acts may apply depending upon the situation. Furthermore, the rights and obligations created by such statute may vary considerably in a particular situation. The application of each statute must be analyzed separately.1.Relevant Medical ConditionThe ADA is concerned with disabilities. A disability is a physical or mental impairment that substantially limits one or more major life 7activities. 42 U.S.C. ' 12102(2). Under the ADA, a person has a covered disability if he has one of the following: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. AMajor Life Activities@ means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. It also now includes internal body functions such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The phrase Amajor life activities@ refers to Athose activities that are of central importance to daily life.@ The employee=s abilities with reference to those activities must be Asignificantly worse than the average person in the general population.@ An impairment=s impact on a major life activity must be Apermanent or long-term.@A Adisability@ is not necessarily the same as a Aserious health condition@ under the FMLA. Transitory, episodic problems from which the employee soon recovers completely are generally not disabilities. 29 C.F.R. pt. ' 1630, App. ' 1630.2(j). However, even temporary conditions that require a one-night stay in the hospital or that create an incapacity of more than three days for which there is continuing health care may be a serious health condition.2.Return to Work RequirementsFMLAUnder the FMLA, an employee returning from leave must be returned to the same job or to a job which is equivalent if the employee can perform the essential job functions.ADAUnder the ADA, an employer must permit a disabled employee to return to work unless:a.The employee cannot perform essential job functions of his job with or without reasonable accommodation;b.The employee poses a direct threat of substantial harm to himself or to co-workers which cannot be reduced to an acceptable level with a reasonable accommodation; or 8c.Keeping job open would present an undue hardship.3.Reasonable AccommodationReasonable Accommodation Requirementa.ADAThe ADA requires that employers make reasonable accommodation for the disabilities of the employees or applicants who can, with those accommodations, perform the essential functions of the job unless doing so would create an undue hardship on the employer. 42 U.S.C. ' 12112(b)(5). A reasonable accommodation is something that helps the employee perform the essential functions of the job or enjoy equal benefits or privileges. 29 C.F.R. pt. 1630, App. ' 1630.2(o); Myers v. Hose, 50 F.3d 273, 283 (4th Cir. 1995) (AReasonable accommodation is by its terms most logically construed as that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question@). Accommodations that are likely to be futile are not reasonable and need not be provided. See, e.g., Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995); Tyndall v. National Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994). b.FMLAReasonableness and effectiveness, are concepts not found in the FMLA. An employee who meets the FMLA eligibility standards and who has not used up his 12 week annual allotment may take FMLA leave even though his health will be no better at the end of the leave and even though providing the leave will impose a significant hardship on the employer.Type of Accommodation/Effect of Accommodation on FMLA Leave 9a.ADANeither that statute nor the regulations specify what types of accommodation or how much of an accommodation is required in a particular case. Any number of things (e.g., job restructuring, modified work schedules, reassignment to a vacant position, modification of equipment, provision of helpers) can be required by the ADA as reasonable accommodations. 29 C.F.R. '1630.2(o).If a number of reasonable accommodations are possible, the ADA does not require the employer to offer the Abest@ accommodation or the accommodation preferred by the employee. 29 C.F.R. pt. 1630 App., ' 1630.9; T.A.M. ' 3.4; What matters is that the employer provide an accommodation that allows the employee to perform the essential functions of the job.b.FMLAThe FMLA requires nothing other than leave, reinstatement rights, and the continuation of benefits. If an employee meets the requirements for FMLA leave, the employee may choose to take the leaven even if the employer is willing to make arrangements that would allow the employee to perform his job even with a serious health condition. 29 C.F.R. ' 825.702(d)(1).4.Effect on Employers= OperationADAThe application of the ADA to a particular situation involves some consideration of the employer=s needs. The employer need not implement a particular accommodation unless the accommodation would allow the employee to perform the essential functions of the job (i.e., meet the employer=s essential needs) or if doing so would impose an undue hardship.FMLAThe effect of the employer is completely irrelevant to the application of the FMLA (except for the special rules pertaining to school teachers and highly-paid employees). 105.Application to Request Time-OffFMLAIf an employee meets the FMLA eligibility standards and has not previously exhausted the 12 week annual total, the employee is entitled to FMLA leave.ADAa.Reasonable accommodation analysisThe application of the ADA to a request time off is far more complex. The ADA does not create an entitlement to time off simply because one has a disability. The standard ADA reasonable accommodation analysis must be followed.b.Leave of absence as a reasonable accommodation(1)A leave of absence to obtain treatment that is likely to allow the person to perform the essential functions after a limited, predictable period of time may well be a reasonable accommodation. For example, it may be a reasonable accommodation to allow an employee who has recently lost his sight to take a leave of absence to receive training in the use of a guide dog when the employee will be able to perform the essential functions of the job with the use of the guide dog. See, T.A.M. ' 3.10.4. (2)However, if regular predictable attendance is an essential function of the job and no accommodation will allow the employee to meet that standard, the employee is not a qualified person with a disability and is not guaranteed either a leave or a job by the ADA. See, Walders v. Garrett, 765 F.Supp. 303, 313 (E.D. Va. 1991); aff=d, 956 F.2d 1163 (4th Cir. 1992); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994). 11FMLA leave as a reasonable accommodationThe same leave of absence can be both a reasonable accommodation and an FMLA leave. FMLA leave requires the continuation of benefits even though the ADA normally does not. 29 C.F.R. ' 825.702(c)(2). If the employer makes the appropriate designation, the leave could count against the FMLA annual allotment.Right to reinstatementa.FMLAWhen the FMLA leave period expires, the employee has the right to be instated to the same or an equivalent position if the employee can then perform all the essential job functions. If at the end of the FMLA period, the employee remains unable to perform all the essential job functions, the employee has no FMLA rights to reinstatement to the original job or a different job within his capabilities. 29 C.F.R. ' 825.214.b.ADAThe ADA might require the employer at that point to make one or more of the following accommodations: modify the original job, transfer to a different, vacant position, or extend the leave. 29 C.F.R. ' 825.702(c)(4). Extension of leave as a reasonable accommodationThe FMLA requires the employer to provide 12 weeks of unpaid leave, but the ADA may require further leave as a reasonable accommodation if the employee is a Aqualified individual with a disability.@ If an employee who is a Aqualified individual with a disability@ has exhausted his or her FMLA leave, the employer must perform a reasonable accommodation analysis. 29 C.F.R. ' 825.702. In such a situation, the employer can generally provide a reasonable accommodation by allowing the employee to continue an unpaid leave of absence as long as such accommodation does not pose an undue hardship to the employer. 29 C.F.R. pt. 1630, App. ' 1630.2(o)(1995). In determining whether an extension of unpaid leave constitutes an undue hardship, the EEOC has stated that an employer may take into consideration the cost and disruption to operations resulting from the FMLA leave already taken. 12If an employer offers an extension of leave beyond the FMLA leave entitlement in order to accommodate the disability of an employee, such unpaid leave does not have to comply with the terms of the FMLA. 29 C.F.R. ' 825.700(A) (1995). An employee on such leave will not automatically be entitled to reinstatement to the same or equivalent position or to maintenance of health benefits. 29 U.S.C. ' 2614(b).Medical insurance benefits during leave of absenceThe FMLA requires that medical insurance benefits be continued during the leave period. 29 U.S.C. ' 2614(c)(1). The ADA contains no such requirement.6.TransferADAA transfer to another job that is within the employee=s current capabilities can be a reasonable accommodation under the ADA. However, a transfer to a job with a lower salary is permissible only if there are no accommodations that would allow the employee to remain in his current position and there are no vacant equivalent positions for which the employee is qualified. If such a transfer is made, the employer need not maintain the higher salary of the original position. 29 C.F.R. pt. 1630, App. ' 1930.2(o). The employee would not necessarily have reinstatement rights to the original job.FMLAThe FMLA permits a transfer to another position over the employee=s objections only if the employee needs intermittent or reduced schedule leave for medical treatment or if the employer agrees to permit such leave for placement or adoption of a child and the position to which the employee is transferred is better suited to the leave schedule. However, the employer must maintain the pay and benefits of the original position. When the need for intermittent or reduced schedule leave ends, the employee must be reinstated into the same position originally held or one equivalent to it. 29 C.F.R. ' 825.204. 137.Transfer to Part-Time ScheduleADAOne possible reasonable accommodation under the ADA is to reduce scheduled hours to the part-time level. If the employer=s policies do not provide benefits for part-time work, the ADA does not require that benefits be maintained for someone who is given part-time work as a reasonable accommodation. 29 C.F.R. ' 825.702(c)(3). Moreover, the ADA would not require the employer to offer a reduced hours schedule after it became an undue hardship or it became clear that even with the reduced schedule the employee could not return to performing the essential functions of the job. FMLASomeone entitled to FMLA leave because of a serious health condition may take that leave through a reduced work schedule or intermittently. During the time that the person is using the intermittent or reduced schedule leave, the employee=s benefits must be preserved and the employer must continue to pay its regular share of health insurance costs. This status can continue until the employee has used up his annual allotment of FMLA time.8.Medical RecordsBoth the ADA and the FMLA require that medical records be kept segregated from other employee records and not used in a manner inconsistent with the ADA. See, 29 C.F.R. '' 825.500(g), 1630.148. Thus, the need for a separate medical file with limited access on a need to know basis. The ADA limits the collection of medical information about employees to that which is job-related and consistent with business necessity. 42 U.S.C. ' 12112(d)(4); 29 C.F.R. ' 1630.148. Obtaining health information that is needed to determine FMLA leave eligibility through FMLA certification procedures would seem to meet the ADA standard.9.Parallel LitigationThe same lawsuit could include both ADA and FMLA claims. An 14employer could be liable under one or both statutes. 29 C.F.R. '825.702(a).Double relief may not be awarded for the same loss. When remedies coincide, a claimant may be allowed to utilize whichever avenue of relief is desired. 29 C.F.R. ' 825.702(a), citing Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 445 (D.C. Cir. 1976) cert. denied, 434 U.S. 1086 (1978). Thus, a plaintiff should be compensated for lost income and benefits, attorneys= fees, costs, and interest only once, even though both statutes provide for them.III.SOUTH CAROLINA WORKERS= COMPENSATION ANTI-RETALIATORY STATUTEA.No Requirement to Hold Job Open for Specific Period of TimeThe statute does not set forth any requirement that an injured employee=s job be held open for a specified period of time; however, the courts will look at the proximity in time between the injury and the discharge in determining whether the employer=s motive was retaliatory.B.Remedies Available to the Employee1.Lost wages suffered as a result of the violation; and2.Reinstatement to the employee=s former position.NOTE:Attorneys= fees and punitive damages are not allowed.C.Employee=s Burdens1.The employee has the burden of proof.2.The employee must prove that the Adeterminative factor@ resulting in his discharge was his institution of the workers= compensation proceeding; He must provide that he would not have been discharged Abut for@ the filing of the claim.3.An employee DOES NOT have to file a formal workers= compensation claim before he is discharged or demoted to have a cause of action under this statute. 15D.Affirmative Defenses1.Willful or habitual tardiness or absence from work;2.Being disorderly or intoxicated while at work;3.Destruction of any of the employer=s property;4.Failure to meet established employer work standards;5.Malingering;6.Embezzlement or larceny of the employer=s property; and7.Violating specific written policy for which the action is a stated remedy for the violation.E.Limitations of the statute=s reach1.The statute does not apply to employees who have received compensation for permanent and total disability.2.The statute of limitations to bring such a retaliation claim is one year.IV.THE RELATIONSHIP BETWEEN THE WORKERS= COMPENSATION AND THE ADAIn a particular situation, employers must generally comply both with the provision of the ADA and of the South Carolina Workers= Compensation Act. The ADA does not supersede state workers= compensation law to the extent that state law provides greater or equal rights to persons with disabilities. 42 U.S.C. ' 12201(b); 29 C.F.R. '1630.1(b)(2). State workers= compensation law does not supersede the ADA because federal laws are supreme. U.S. Const., Art VI; T.A.M. ' 9.6. Exclusive remedy provisions in state workers= compensation statutes do no prevent the assertion of ADA claims.A.Overlap in CoverageWorkers= compensation laws apply only to workers injured on the job. Those workers have ADA rights only if they are qualified individuals with disabilities, as defined by the ADA. Most workers= compensation recipients do not have an ADA disability even though they may get a Adisability rating@ pursuant to 16workers= compensation law. T.A.M. ' 9.2.B.Light Duty/Reasonable AccommodationUnder the South Carolina Workers= Compensation Act, an employer can reduce the amount of its payments to an injured employee if it offers the employee a Alight duty@ position commensurate with the employee=s current abilities. An employee who rejects a suitable light duty position may suffer a reduction or termination of income replacement benefits. The ADA would not seem to prohibit such a scheme. In some cases, offering a transfer to an available open position may be a reasonable accommodation under the ADA, but the ADA does not require the creation of a light duty position if one does not exist. T.A.M. '9.4.C.Hiring or Reinstatement of Injured WorkersOut of a fear of additional workers= compensation liability, an employer may wish to require that a worker injured off the job be fully recovered before returning to his or her regular job. To avoid workers= compensation liability, an employer might decline to hire someone injured in a prior job or to reinstate one of its employees injured off the job. As applied to a qualified person with a disability, such a practice is not permissible under the ADA. T.A.M. ' 9.2. Doing so would be discrimination on the basis of a current or past impairment or a perceived impairment. See, Hutchinson v. United Parcel Service, Inc., 883 F.Supp. 379, 396-97 (N.D. Ia. 1995); Smith v. Kitterman, Inc., 897 F.Supp. 423 (W.D. Mo. 1995). If an employee can perform the essential functions of the job, with or without a reasonable accommodation, and would not pose a significant risk of substantial harm to the employee or others, he must be allowed to return to work. However, the ADA does not prohibit providing medical information to a workers= compensation Asecond injury@ fund. T.A.M. ' 9.3. D.Parallel LitigationAn employee injured on the job whose employment is terminated because of an inability to do the job may make simultaneous claims of discrimination or failure to accommodate under the ADA and reprisal or interference claims under the South Carolina Anti-Retaliation Statute. Such claims are generally analyzed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting standard. See, e.g., Nguyen v. IBP, Inc., 905 F.Supp. 1471, 1481-82 (D. Kan. 1995), Randall v. Northern Milk Products, Inc., 519 N.W.2d 456 (Minn. Ct. App. 1994).V.THE RELATIONSHIP BETWEEN THE WORKERS= COMPENSATION AND THE FMLAThe FMLA does not supersede state laws to the extent that they provide greater leave rights. 29 U.S.C. ' 2651(b). To the extent that workers= compensation laws provide payments during an absence or guarantee reinstatement after a period of time longer than the FMLA requires, they are not preempted by the FMLA.A.Overlap in Coverage - Concurrent FMLA and Workers= Compensation LeaveAbsences due to injuries covered by workers= compensation may also be FMLA leave if the employee suffers from a serious health condition and meets the other eligibility requirements of the FMLA. See, 29 C.F.R. '' 825.207(d)(2); 825.702(d)(2); DOL Opinion FMLA-40, Wage-Hour Manual (BNA) 99:3033-34 (1994). This gives the employee the benefit of the FMLA rights to reinstatement and continued benefits. However, as with all leaves protected by the FMLA, an absence does not count toward the FMLA annual total unless and until the employer gives the appropriate notice to the employee and designates the leave as FMLA leave. See, 29 C.F.R. ' 825.115.B.Relationship of FMLA Rights to Light Duty Assignments1.The South Carolina Workers= Compensation Act provides that if an employer offers a suitable light duty position to an employee on workers=compensation leave and the employee rejects the offer, remaining on leave, the employee may lose rights to some or all workers= compensation payments. In fact, under the current workers= compensation statutes in South Carolina, an employer and its insurance carrier may be able to stop payment of temporary total compensation prior to a hearing. In this case, the employee would still retain all FMLA rights even though certain workers= compensation rights are forfeited. 29 C.F.R. '' 825.207(d)(2), 825.702(d)(2).2.Under the FMLA, the employee may not be forced to return to a light duty position, but the FMLA does not prohibit the employer offering a light duty position pursuant to workers= compensation laws. 29 C.F.R. ''825.2220(d), 825.702(d)(2). If the employee accepts the light duty position, he retains FMLA reinstatement right to his original position until his annual 12 week FMLA allotment is exhausted. 29 C.F.R. '825.220(d). However, DOL Opinion FMLA-55, Wage-Hour Manual (BNA) 99:3052, 3053 (1995), suggests that time spent in a light duty assignment may not count against an employee=s annual 12 week FMLA allotment.C.Settlement of Workers= Compensation Claims generally settles only the workers= compensation claim and not any potential employment claims - such as retaliatory discharge or ADA claims.2.Some clinchers also include a laundry list of employment claims; however, some Commissioners may refuse to sign clinchers with employment release language and it is unclear whether the South Carolina courts would uphold a release of an unemployment claim is contained in a workers= compensation clincher.3.Consider obtaining a separate employment release at the time of agreement upon the terms of the clincher. Additional consideration must be paid by the employer, but that additional consideration may be minimal compared to future exposure to attorneys= fees and damages in an employment lawsuit.D.Parallel LitigationAn FMLA interference or reprisal claim could easily be added to a lawsuit with workers= compensation retaliation claims and ADA discrimination or failure to accommodate claims.

Procedural Justice

A judgment that fair methods were used to determine the consequences an employee receives.

job satisfaction factors

Appreciation for your work. Good relationships with colleagues. Good work-life balance. Good relationships with superiors. Company's financial stability. Learning and career development. Job security. Attractive fixed salary.

cafeteria-style employee benefits

Cafeteria plans allow employees to choose from a variety of pre-tax benefits. ... Employees have a number of pre-tax options including insurance benefits, retirement plans, and benefits that help with life events. Cafeteria plans can be more complex and require more time to administer.

State minimum wage

Can be higher than federal minimum wage but NOT lower

FMLA definition

Child birth/Adoption leave

Workers' Adjustment Retraining and Notification Act (WARN)

Covers employers who have 100 or more employees

STRIKES

Economic Strike -- Better wages/benefits-- Permanent replacementUnfair Labor Practice Strike (ULP)-- Breach of collective bargaining agreement-- Employee reinstatement no loss in pay or benefits

NLRA of 1935 - Wagner Act

Employee rights: - Right to organize - Right to bargain collectively - Right to strikes and picketing - Rights to other concerted activity (Section 7 rights) - Employer unfair labor practice interfere with employee Section 7 rights •Created the National Labor Relations Board •Board's purpose is to protect and enforce employee rights

FMLA required notices

Employees must give notice at least 30 days in advance if their need for FMLA leave is foreseeable (for example, for non-emergency surgery). An employee who does not give 30 days' notice must explain why such notice was not practicable, if the employer requests. Employers must give employees a series of notices about their rights under the FMLA and their obligations when using leave. The regulations that interpret the FMLA divide these notice requirements into four separate documents: A general notice, which must be posted conspicuously (this can be done electronically, as long as it's accessible to employees and applicants). The general notice must also be distributed to employees, either as part of the employee handbook or other written materials or as part of the paperwork given to each new hire. An eligibility notice, which must be provided to employees who request FMLA leave. The notice must indicate whether the employee is eligible for leave. If the employee is not eligible, the notice must state at least one of the reasons why not (for example, that the employee has not yet worked for the employer for 12 months). This notice must be provided within five business days after the employee's request. A rights and responsibilities notice, which provides a variety of information about FMLA leave, including whether the employer will require a medical certification and/or fitness for duty certification, payment of healthcare premiums, using paid leave, and more. A designation notice, which either designates time off as FMLA leave or notifies the employee that time off will not be designated as FMLA leave. For FMLA leave, the notice must indicate how much leave will be counted against the employee's 12-week entitlement, if the amount of leave is known. If the amount of leave is unknown, the employee can request a written statement of how much leave has been counted against his or her entitlement no more often than every 30 days. This written statement can be a notation on the employee's pay stub.

Straight Piecework Plan

Employer pays same rate per piece no matter how much worker produces

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Employers required to allow employees to extend health insurance coverage at group rates for up to 36 months after layoff, reduction in hours, or employee's death (for dependents)

FMLA

Family and Medical Leave Act

Employee Retirement Income Security Act (ERISA)

Federal law that increased the responsibility of pension plan trustees to protect retirees, established certain rights related to vesting and portability, and created the Pension Benefit Guarantee Corporation.

how do you prepare to be an expatriate

Finding a place to live. Setting up a bank account. International Health Insurance. Enrolling children in school. How the tax system works.

progressive Discipline

Formal discipline process; consequences more severe with each repeat offense: Tardiness and absenteeism Unsafe work practices Poor quality of work Theft Cyberslacking

characteristics of a successful expatriate

Global Curiosity. Being interested in and excited about new cultures is essential. Emotional Intelligence. Extreme Organization. Cultural Adaptability. Language Skills. Flexibility. Leadership. Patience.

Emotional Stages Associated with a Foreign Assignment

Honeymoon - period of fascination and euphoria as the employee enjoys the novelty of the new culture Culture shock - the disillusionment and unfreezing of ideas that occur during the process of adjusting to a new culture. Learning - continued learning about the host country's culture, language increase their comfort level and their mood Adjustment - stage where the expatriate accepts and enjoys the host country's culture

Retaliation workers comp

I was injured at work and want to file a workers compensation claim, but I am worried about losing my job. Can my employer fire me for filing a workers compensation claim? 2. Which federal law(s) make it illegal to retaliate on the basis of seeking workers compensation? 3. How can I show that I was retaliated against in violation of the workers compensation law? 4. Which individuals are protected from retaliation under the law? 5. What is considered to be "protected activity" covered by laws against workers compensation retaliation? 6. What actions by the employer are considered to be retaliation? 7. How do I prove that the protected activity caused the adverse action? 8. If I think I have grounds to sue my employer for retaliating against me, what do I do?

Principal's Liability

If the principal directs the agent to do tortious acts, then the principal is liable (rare). Principal may give actual authority or instructs employee or agent to do a certain act. Thereby the principal may ratify agent's conduct. *Vicarious Liability imposed "Liability for unauthorized acts of the agent" Was the agent acting "within the scope of his/her employment"? Courts use the doctrine of respondeat superior. Employers may be liable for torts of employees due to negligent hiring or supervision.

How does workers comp overlap with FMLA

If your job-related illness or injury turns into a serious health condition, FMLA and workers comp can overlap. For instance, if you suffer a work-related illness or injury that also qualifies as a "serious health condition" under the FMLA. In this case, both FMLA and workers' comp will run concurrently.

Employees' Privacy

Information gathered and used for discipline must be relevant Privacy issues arise when employers with to monitor or search employees Employers must be prudent in who sees the info, i.e., need to know basis

RIGHT TO WORK

It is hereby declared to be the public policy of this State that the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization. (S.C. Code Sec. 41-7-10) •It is unlawful for an employer to require an employee, as a condition of employment, or of continuance of employment to: (1) be or become or remain a member or affiliate of a labor organization or agency; (2) abstain or refrain from membership in a labor organization; or (3) pay any fees, dues, assessments, or other charges or sums of money to a person or organization.

Job performance evaluation

Let them know on a regular basis and build a path to succeed. Give them a process to follow in order to be successful.

What company looks for in expatriates

Look for overseas employment firms that are specialized in your profession - and preferably with experience placing expats. They're likely to already have established relationships with top-tier companies in your line of work; as such, a recommendation from them may carry more weight.

Gainsharing

Measures improvements in productivity and effectiveness and distributes portion of each gain to employees, i.e., "enlarge the pie." •Addresses challenge of identifying appropriate performance measures for complex jobs •Employees determine how to improve own and group's performance

Workers Comp benefits

Medical treatment benefits. Disability benefits. Supplemental job displacement benefits. Death benefits.

Negligent Hiring

Negligent Hiring: Liability may be imposed for intentional torts committed by an employment who is not acting in the scope of employment Obligations to check background of an employee May conflict with EEO rules. Restrict check to relevant issues. In some instances, can also be an obligation to check independent contractor for doubtful history. i.e. Child molester: Should not be in routine contact with children Bad driving record: Should not be permitted to drive a company truck

EMPLOYEE'S PERSPECTIVE CONT'

Obligations-Lost control over work lives; extra union rules to follow-Union speaks in employees' place regarding important work issuesStrikes-Employees can be called on strike (without regular pay or Company-paid benefits) and can be replaced!

Discipline and Discharge

Organizations must have a standardized and systematic approach to separation Should not be left solely to discretion of individual managers Should be based on principles of justice and law Treat employees with dignity and respect Consistency is the key

Employee benefits packages

Paid time off such as PTO, sick days, and vacation days. Health insurance. Life insurance. Dental insurance. Vision insurance. Retirement benefits or accounts. Healthcare spending or reimbursement accounts, such as HSAs, FSAs, and HRAs. Long term disability insurance.

unemployment insurance

Payroll tax on employers that depends on state requirements and experience rating •Federally mandated program administered by states •Minimizes unemployment hardship •Most funding comes from taxes on employers •Size of unemployment tax imposed on the employer depends on the employer's experience rating HR planning can keep experience rating favorable •To receive benefits, workers must meet four conditions: 1.Can demonstrate they were employed 2.Available for work 3.Actively seeking work 4.Were not discharged for cause, did not quit voluntarily, and are not out of work because of a labor dispute

Differential Piece Rates

Piece rate is higher when a greater amount is produced

Social Media Rules In The Workplace

Policies making clear that organization has the right to access e-mails that come to company computers or accounts Software scans e-mails for red flag words - sex, guarantee, social security number, etc. Policies reduces: Lost work time Litigation from harassment from e-mails with sexual content Loss of information that should be secure Maryland: First state to ban employers from requesting access to social media account Some employers ask for voluntary access to social media but do not insist. Remember: Everything once posted, even if removed, can be retrieved later.

Hot-stove Rules

Principle that says discipline should be like a hot stove: Glowing stove gives warning not to touch Anyone who ignores is burned Stove has no feelings to influence which people it burns Stove delivers same burn to all; it is immediate Following up with consistent, objective and immediate and consequences.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

Reemployment within 5 years

Progressive Discipline

Rules of behavior should cover disciplinary problems such as: 1.Tardiness 2.Absenteeism 3.Unsafe work practices 4.Poor quantity or quality of work 5.Sexual harassment 6.Impaired by alcohol or drugs 7.Theft of company property 8.Cyberslacking

EMPLOYER FREE SPEECH RIGHTS UNDER NLRA

Section 8(c)"The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice..."

UNION AUTHORIZATION CARD

Significant showing of interest - 30%Possible effects if majority employees sign cards

Benefits required by law

Social Security unemployment insurance Workers' compensation insurance Family and medical leave Health care Patient Protection and Affordable Care Act

steps of progressive discipline

Step 1: Verbal Counseling(s) Step 2: Written Warning(s) Step 3: Performance Improvement Plan (PIP) Step 4: Termination of Employment

Union Organization

The Process of Organizing •Union representatives contact employees •Employees invited to sign authorization card •30 percent must sign for process to continue •If not signed, the NLRB conducts a secret-ballot election •Consent election •Stipulation election •Workers vote for or against union representation

Why expatriate benefits matter

The employee feeling a combination of relocation stress with job performance pressure. The expat will need to finding schooling for children. The expat will need to feel secure and safe. The spouse of the employee will also need to find work in many cases.

FLSA Minimum Wage

The federal minimum wage is $7.25 per hour effective July 24, 2009. Many states also have minimum wage laws. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage.

repatriate benefits

The repatriation benefit pays the cost of preparing the body of an insured who dies in a foreign country and returning the body to their home country. This benefit is generally included in the Medical Evacuation benefit of most international medical insurance and travel protection plans.

Path to succeed

They draw a roadmap and tell them if they stay on successful path they will be good employees and right now they are marginal employees

COMPANY'S PERSPECTIVE

Union Contracts Can Limit Flexibility-Unions Prefer Limits on job duties and oppose cross-training We Want to Avoid the Adversarial Relationship a Union Often Creates-Union leaders may drive a wedge between employees and supervisorsUnions Filter Direct Communication Between Supervisors and Employees-Supervisors must deal with union stewards regarding day-to-day problems

COMPANY'S PERSPECTIVE CONT'D

Union Relationships Require Layers of Review and Many Formal Procedures-Supervisory decisions are challenged through grievances; resolution can take months!Overemphasis on "Seniority"-Seniority is important, but skill and merit-based decisions reward good performanceStrikes-All employees are needed at work to keep satisfied Customers

Employment-at-Will doctrine

Unless otherwise specified in contract, employer or employee may end employment relationship at any time, with or without notice and with or without cause Implied contracts Discharge cannot violate law or public policy or wrongful discrimination.

Piecework Rate

Wage based on the amount an employee produces

Vesting Rights

When employees become participants in pension plans and work a specified number of years, they are guaranteed to receive pension at retirement regardless of if they remained with the employer

SIGNIFICANCE OF A UNION AUTHORIZATION CARD

Why not...because the card is:-A Binding Legal Document-It is like signing a Blank Check-It is like granting a Power of Attorney to a Stranger-It could result in Unionization without an election, even under the current law

EMPLOYEE'S PERSPECTIVE

Your employees' perspective is a critical one to consider. If they understand and appreciate the factsabout unions, the big majority decide to stay union-free.Costs-Unions cost a lot of money (e.g., initiation fee, dues, fines, extra assessments) Negotiations-Current wages and benefits are put at risk

Company experience rating

a measurement the insurance industry uses to evaluate the insurance risk of an employer based on their experience. For example, workers' compensation premiums are calculated using an experience rating, based on the employer's claim history and industry classification.

individual retirement account (IRA)

allows you to save money for retirement in a tax-advantaged way. An IRA is an account set up at a financial institution that allows an individual to save for retirement with tax-free growth or on a tax-deferred basis.

Public policy is

an exception to employment at will

Serious health condition under ADA

an injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

Non-traditional marriage

anyone can marry anybody regardless of their sex or anything

Union Campaign

employers are permitted to engage in activities that will not interfere with an employee's ability to make a free choice in a union election.

Legal Requirements

equal pay for equal work minimum wage overtime pay restrictions on child labor

Pregnancy Discrimination Act

forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

Pay based on performance

not seniority

Alternative Dispute Resolution

open door policy review mediation arbitration

Job Dissatisfaction

personal dispositions, supervisors and co-workers, pay and benefits

FMLA coverage

provides eligible employees up to 12 workweeks of unpaid leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.

Expectation of privacy

that someone who unreasonably and seriously compromises another's interest in keeping her affairs from being known can be held liable for that exposure or intrusion.

Disability under ADA

you have a disability if you have a physical or mental impairment that substantially limits a major life activity.

New Overtime Rules

•1.3 million new Americans are now eligible for overtime pay •Final rules become effective January 1, 2020•Final Rules :•"Standard Salary Level" went from $455 per week to $684 per week ($35,568 per year) •"Highly Compensated Employees" went from $100,000 per year to $107,432 per year

Total pay divided into four components of pay package

•Base salary •Tax equalization allowance •Benefits •Allowances

Gathering Information About Market Pay

•Benchmarking - a procedure in which an organization compares its own practices against those of successful competitors •Multiple sources of data:•Pay surveys •Bureau of Labor Statistics (BLS) •Society for Human Resource Management (SHRM •Consulting groups

Arbitration

•Binding process •Professional arbitrator (lawyer or judge) hears case and resolves it by making a decision

Employee Benefits

•Compensations to employees in forms other than cash •Help attract, retain, and motivate employees •Help employers tailor their compensation to the kinds of employees they need •Employees have come to expect that benefits will help them maintain economic security •Benefits impose significant costs •Certain benefits required by law •Tax laws can make benefits favorable to employees •Employers can get volume discounts on insurance •Creative benefits packages make companies competitive

Retirement Plans

•Contributory plan: funded by employer and employee •Noncontributory plan: funded entirely by employer •Defined benefit plan: guarantees specified level of retirement income •Meets requirements of Employee Retirement Income Security Act •Aided by the Pension Benefit Guarantee Corporation •Defined-contribution plan: employer sets up account for each employee; specifies size of contribution into account •Money purchase plan •Profit-sharing and employee stock ownership plans •Section 401(k) plans •Cash balance plan: employer sets up account for each employee; contributes percentage of employee's salary

Transnational HRM System

•Decisions made from a global perspective •Includes managers from many countries •Decisions based on ideas contributed by people representing a variety of cultures •Decisions balance uniformity with flexibility

Employee Engagement

•Degree to which employees are fully involved in work and strength of commitment to job and company •HR professionals say their biggest challenge today is employee retention, or reducing voluntary turnover •Engaged employees provide competitive advantages •Higher productivity •Better customer service •Lower turnover •Less absenteeism

ESOP

•Employee stock ownership plan •Organization distributes shares of stock to all its employees by placing them in a trust •Most common form of ownership

Child Labor

•FLSA sharply restricts use of child labor •Children under 14 may not be employed •Children aged 14 and 15 may work only outside school hours, in nonhazardous jobs, and for limited time periods •Children aged 16 and 17 may not be employed in hazardous jobs •Exemptions: babysitting, acting, delivering newspapers

Fair Labor Standards Act (FLSA)

•Federal law that establishes minimum wage and requirements for overtime pay and child labor

Minimum wage

•Lowest amount employers may pay under federal ($7.25/hr) or state law •States as an amount of pay per hour

Personal Dispositions

•Negative affectivity: low level of satisfaction with all aspects of life •Core self-evaluations: opinion of self (low or high) impacts job satisfaction

Mediation

•Nonbinding process •Neutral party from outside organization hears case •Helps parties arrive at settlement

Performance Bonuses

•Not rolled into base pay •Employee must re-earn bonus during each period •May be a one-time reward •May be linked to objective performance measures

Executive ethical issues

•Occur when company links pay to stock performance •Executives may be tempted to lie about company's performance due to potential for large earnings •Insider trading gives unethical advantage

Open-Door Policy

•Organization's policy of making managers available to hear about complaints and conflict •Works to degree that employees trust management to act

Key Jobs

•Organizations define key jobs to help create pay structures •Key jobs have relatively stable content and are common among many organizations •Pay for key jobs can be based on survey data

Overtime Pay

•Overtime is hours worked beyond 40 hours per week •Under FLSA, employers must pay 1.5 times employee's usual rate for overtime hours •Exempt employees - managers, outside salespeople, and other employees not covered by the FLSA requirement •Nonexempt employees - employees covered by FLSA requirements for overtime pay

Employees in an International Workforce

•Parent country: country in which organization's headquarters is located •Host country: country (other than parent country) in which organization operates a facility •Third country: neither parent or host country •Expatriates: employees assigned to work in another country

Peer review

•Process for resolving conflict •Panel listens to case and works to help parties agree to settlement •Panel made of representatives from organization at same level as people in dispute

National Labor Relations Act (NLRA) (The Wagner Act)

•Protects the following activities:•Union organizing •Joining a union, whether recognized by employer or not •Going out on strike •Refraining from activity on behalf of the union Most employees in private sector covered by NLRA

Employee Assistance Program (EAP)

•Referral service employees can use to seek professional treatment for emotional problems or substance abuse •Many EAPs fully integrated into health benefits plans •Managers usually trained to use referral service for employees they suspect of needing help

Landrum-Griffin Act of 1959

•Regulates unions' actions with regard to their members, including financial disclosure and conduct of elections •Outlawed recognition or organizational picketing if another union was in place •Outlawed secondary union boycotts •Unfair labor practice for unions "to threaten, coerce or restrain" persons engaged in commerce •Prohibited "hot cargo" contracts - unions cannot restrain employers' rights to handle goods of any other employer

Laws Amending the NLRA

•Taft-Hartley Act of 1947•Right-to-work laws: state laws that make union shops, maintenance of membership, and agency shops illegal •Employees free to join a union or not •Unions believe that all employees who receive union benefits should pay union dues •Can be legally applied to the private sector

Labor-Management Relations Act, 1947 (Taft-Hartley Act)

•The purpose: Balance employee and employer rights •Restricted labor organizations from activity that burdens or obstructs commerce •Employees given right to refrain from union activity •Gave free speech rights to employees and employers •Establish union unfair labor practices •Required good faith bargaining •Recognized states "right to work" laws