The Top 5 Critical Employment Laws Managers Need to Know

Transcript The Top 5 Critical Employment Laws Managers Need to Know

The Top 5 Critical Employment Laws Managers Need to Know Third Annual Employment Law Summit Prince William SHRM and Vanderpool Frostick & Nishanian PC

October 3, 2014

Presented by:

Kristina Keech Spitler, Esq.

DISCLAIMER

This presentation and information is designed to provide general information, is not intended to constitute legal advice and should not be utilized as a substitute for professional services in specific situations. If legal advice or other expert assistance is required, the services of a professional should be sought.

Kristina Keech Spitler, Esq.

Kristina Keech Spitler, Esq. is a shareholder with the law firm, Vanderpool, Frostick & Nishanian, P.C., where she represents and advises businesses on business and employment issues and litigation including representing employers in court, in mediation, and before administrative agencies such as EEOC, assisting clients comply with laws on such issues as discrimination, disabilities and accommodations, wage and hour, leave, hiring and firing , and discipline. In addition, her practice includes drafting and updating handbooks and policies, providing management and employee training, performing internal investigations, and counseling on matters relating to breach of agreements, non-competes and restrictive covenant agreements. Ms. Spitler is a highly rated speaker and trainer on employment law issues.

Ms. Spitler has been recognized as one of one of Virginia’s “Most Influential Women” by Virginia Lawyers Media and as one of Virginia’s “Legal Elite” in Labor/Employment Law by Virginia Business Magazine.

Contact Ms. Spitler at

[email protected]

or (703) 369-4738.

Jennifer Massanova, PHR

Jennifer Massanova, PHR is currently the Executive Director of Human Resource, EEO and Employee Relations at ManTech International. Jennifer leads the administration of policies, procedures and programs covering all areas of employee services to further the development of employee/company relationships. She counsels corporate and business operations regarding HR policies and procedures and advises HR staff, management and employees in all areas of HR. Ms. Massanova ensures Compliance with all state/federal laws regarding employee relations and researches, drafts, recommends and implements HR policies and procedures.

She ensures compliance with all applicable policies, rules, regulations and laws; stays abreast of legal, regulatory and policy developments affecting areas of responsibility; enforces legal and regulatory requirements impartially, and serves as the company OFCCP audit representation and prepares submissions, and interfaces with the OFCCP. She also coordinates development of the AAP plan, and in cooperation with HRIS, she prepares, reviews and submits the annual EEO-1, VETS-100 and VETS-100a reports and makes recommendations for legal review and reporting.

Contact Ms. Massanova at

[email protected]

_________________

Kristina Keech Spitler Vanderpool, Frostick & Nishanian, PC

or (703)

A Note About Cell Phones

Please TAKE OUT your cell phones ??????????

Agenda Managers/supervisors need to know some basics about employment laws before being sent into the wild: • • • • • Title VII/Discrimination ADA Retaliation NLRA FLSA (Note Federal and State Laws) Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Overview of Discrimination Laws Title VII, PDA, ADEA, ADA, GINA, and USERRA prohibit discrimination based on: Race/skin color National origin Religion Sex Pregnancy Age (40+ years) Disability Genetic Information Military Status Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Title VII Basics

Title VII prohibits discrimination in employment because of a person’s race, color, national origin, religion, or sex/gender.

Discrimination – What Is It?

Changing or affecting the terms and/or conditions of a person’s employment (or application) because of their membership in a protected class. • Negative or Positive change (favoritism) 8 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Title VII Basics Discrimination Can Be Intentional or Unintentional • Intentional discrimination can flow from stereotypes • Unintentional discrimination: Facially neutral practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

Supervisors A Company is strictly liable for a supervisor’s discriminatory misconduct if it involves a tangible employment action - hiring and firing, promotion and failure to promote, demotion, undesirable reassignment, compensation, etc.

Supervisors In Title VII discrimination cases, for a company to be strictly liable for a supervisor’s discriminatory misconduct, the supervisor must be able to take “tangible employment actions.” Tangible employment actions means the power to hire, fire, demote, promote, transfer, or discipline an employee. Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Supervisors While an employer is not strictly liable if supervisor’s discriminatory misconduct does not result in tangible employment action, the Company may still be liable unless: – the employer exercised reasonable care to prevent and correct promptly any harassing and discriminatory behavior – AND the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Supervisors Your supervisors must know what is unlawful discrimination and refrain from any type of discriminatory conduct or s/he will be subject to disciplinary action which may include termination Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Supervisors Supervisors duty to respond to complaints: The EEOC has stated: “An employer’s duty to exercise due care includes instructing all of its supervisors and managers to address or report to appropriate officials complaints of harassment regardless of whether they are officially designated to take complaints and regardless of whether a complaint was framed in a way that conforms to the organization’s particular complaint procedures.” 14 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Things Managers Need to Know about Title VII • Discrimination can happen in or out of the office • There should be no “chain of command” for complaints Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Common Pitfalls – Title VII • Supervisors participating/condoning bad behavior • Supervisors not dealing with complaints promptly and/or properly • Supervisors not being aware of their statements, jokes, and/or actions could be considered offensive by someone in a protected status • Supervisors talking about the complaint with others/retaliation • Supervisors making judgment calls on religious beliefs – That’s not a real religion 16 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Title VII Legal Cases •

EEOC v. Century Shree Corp. & Century Rama Inc., Case No. 11-cv-2558 REB-CBS (D. Colo. Oct. 2, 2012).

– In October 2012, a Hampton Inn franchise in Craig, Colorado agreed to pay $85,000 to resolve a race and national origin discrimination lawsuit regarding the terminations of three Caucasian and non-Latino employees. According to the lawsuit, the general manager of the hotel allegedly was told by the business owners "to hire more qualified maids, and that they preferred maids to be Hispanic because in their opinion Hispanics worked harder" and that White or non-Hispanic workers were indolent.

Americans with Disabilities Act Basics ADA prohibits discrimination on the basis of a disability against a qualified individual in: Job application procedures Hiring and firing Advancement Compensation Job training Other terms, conditions and privileges of employment 18 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Americans with Disabilities Act Basics • • • Prohibits discrimination against “qualified individuals” with a disability, those with a record of a disability, or those “regarded as” having a disability. Requires employer to provide a reasonable accommodation to a qualified individual with a disability that will allow him/her to perform the essential job functions.

Requires strict confidentiality with regard to an employee’s medical information and records.

Americans with Disabilities Act Basics • • • • • • • • deafness blindness intellectual disability partially or completely missing limbs mobility impairment requiring use of a wheelchair autism cancer cerebral palsy • • • • • • • • • • diabetes epilepsy HIV infection multiple sclerosis muscular dystrophy major depressive disorder bipolar disorder post-traumatic stress disorder OCD schizophrenia 20 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Things Managers Need to Know about the ADA • • • Basic Employee Obligations: The employee must request an accommodation before employer has a duty to discuss it, unless the disability and the need for an accommodation are obvious.

To cooperate with the employer in identifying a reasonable accommodation.

To provide medical documentation when required.

Things Managers Need to Know about the ADA • • Basic Employer Obligations: If the employee has a disability, the employer must provide reasonable accommodations to allow the person to perform the essential job functions, unless doing so would impose an undue hardship To determine reasonable accommodations, you must engage in the “interactive process” when accommodations are requested. You MUST react when an employee requests an accommodation.

Things Managers Need to Know about the ADA • Basic Employer Obligations: ARE REQUIRED. Employee need only mention a medical condition and its impact on his/her ability to perform the job.

Common Pitfalls – ADA • • • Granting significant accommodations on the fly – I decided to let her work from home for a couple of weeks, but she can’t do that forever! I didn’t actually say that to her (but employee may have perceived it as being implied).

NOT recognizing an employee’s request as one that implicates the ADA and requires an interactive dialogue and reasonable accommodations NOT granting reasonable accommodations 24 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Common Pitfalls – ADA • • Playing doctor – I think he is depressed.

– I think she is bipolar!

Discussion of issue with other employees – Why does Suzie get Fridays off? Well, (stage whisper) don’t say anything, but she has cancer (or she has a disability)!

– I have to let her take off – I think it’s garbage and she is goldbricking.

Managers – ADA A manager is mostly likely to be in a position where s/he has knowledge of a disability or possible disability. The manager must ensure that s/he does not engage in discrimination (even inadvertently). The mention of a employee’s health condition (mental and physical) should trigger in the manager’s mind the possibility that there may be a requirement to provide accommodations for a disability.

ADA Legal Cases • •

EEOC v. Starbucks Corp.

– A barista with mental impairments (including bipolar and attention deficit disorders) performed well when she was accommodated with extra training and support, but a new manager stopped accommodating her. When her performance suffered, he cut her hours, berated her in front of customers, placed her on a performance improvement plan, and discharged her.

• The case settled for $75,000 in monetary relief to the barista and an additional $10,000 to the Disability Rights Legal Center

EEOC v. Convergys Customer Management Group

– A jury found that Convergys violated the ADA by denying Ahmet Demirelli, who has brittle bone disease and uses a wheelchair, an additional few minutes for his lunch break as a reasonable accommodation for his disability, and then firing him for being late. Demirelli needed the additional time because his wheelchair prevented him from looking over the tops of the workstations to find an empty station, and he had to inspect each workstation until he found an empty one. His supervisor refused to reserve a workstation for him.

• The court rejected Convergys’ argument that extending Demirelli’s break time by 15 minutes would eliminate the company’s punctuality requirement.

Retaliation Basics Law prohibits employers from retaliating against employees for engaging in protected conduct such as: filing a charge of discrimination with EEOC or state agency complaining of discrimination to employer being a witnesses in a discrimination investigation opposing unlawful discriminatory practices requesting accommodations under the ADA requesting FMLA leave complaining of wage and hour violations 28 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Retaliation Basics • Retaliation for engaging in legally protected activity can include: Overt negative job actions such as firing, demotion, discipline, firing, salary reduction, and job reassignment; or • Subtle negative actions such as a change in job shift which could be very detrimental to a parent with young children and a less flexible schedule.

Things Managers Need to Know about Retaliation Retaliations claims are the most claims filed with the EEOC.

These claims are also significant because the retaliation claim survives even if there was no underlying misconduct (discrimination, wage and hour violation, etc.).

Common Pitfalls – Retaliation • • • • Managers do not understand what retaliation is and that it is unlawful.

Hard to treat an employee who has complained of discrimination (wage and hour violation, FMLA leave issues, etc.) the same as every other employee Failing to evaluate if the manager is treating an employee who has complained, in a defensible manner prior to disciplining, particularly when close in time to a complaint being made Failing to appreciate that a person who complained will be more sensitive so need to ensure conduct is fair and appears fair 31 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Retaliation Legal Cases • •

EEOC v. Bertolini Corp.

EEOC filed suit against Bertolini Corporation in Tennessee for retaliation based upon allegations that the company fired a maintenance mechanic and a human resource assistant after they complained about unlawful discrimination at the company. • As part of a settlement agreement, the company paid $92,500 to the two employees, provide in-person anti retaliation training to its employees, report all retaliation complaints to the EEOC for one year, and had to be monitored by the EEOC for one year.

Montell v. Diversified Clinical Services, Inc.

– Montell testified that throughout her time working for her supervisor, he would comment on her appearance at every opportunity which became increasingly aggressive. She complained to HR and after suffering further harassment by the supervisor, quit. She alleges that she was constructively discharged in retaliation for complaining about her supervisor’s sexual harassment. – DCS vigorously disputed that there was a causal connection between Montell’s exercise of her right to complain and the adverse action (forced to quit) as she had been on a PIP for several months for problems in her work performance prior to her termination.

• District Court held that Montell had presented a prima facia case of retaliation and the case can go to a jury.

National Labor Relations Act Basics • • • • Defines the rights of employees to organize and bargain collectively with employers through representatives of their own choosing.

Defines practices by employers and unions that are inconsistent with those rights and are “unfair” Section 7 of the National Labor Relations Act gives employees the right to engage in concerted activity (group action without a union) to attempt to improve their terms and conditions of employment. Establishes the National Labor Relations Board (NLRB) to oversee and enforce the provisions of the act.

Things Managers Need to Know about NLRA • Applies to everyone – not just unions • Unfair Labor Practices (ULPs) • Social Media • Solicitation/Distribution Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Common Pitfalls – NLRA • We are a right-to-work state!

– That may be so (VA is, MD and DC are not) but did you mean “We are an at-will employer/state?” • Allowing focus groups to discuss conditions of work • Disciplining for NLRA-protected activity – PCA • Solicitation/Distribution • “We would never go union” • Not recognizing formation signs • Authorization cards 35 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

NLRA Legal Cases • • The NLRB in Electromation, Inc.,(7th Cir. 1994) concluded that an employee participation committee is a “labor organization” if it satisfies the following criteria: • Employees participate; • • • The organization exists, at least in part, for the purpose of “dealing with” the employer; The “dealings” must concern grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work; and The committee acts as the representative of the employees Knauz BMW (Sept 28, 2012) – Two sets of FaceBook posts: • Discussion among co-workers about their discontent regarding the quality of food and beverages at a dealership promoting event and how this cold impact sales • Photos of an accident involving a car from a jointly owned dealership across the street – Ruling: Promotion posts were protected, concerted activity. Photo post about the accident were not. – Because the employee was fired based on the accident post, the term did not violate the NLRA.

Fair Labor Standards Act Basics • • • Prescribes standards for the basic minimum wage and overtime pay, affects most private and public employment. Requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. Establishes child labor standards affecting full-time and part-time workers 37 Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Things Managers Need to Know about FLSA FLSA Cases are being filed in record numbers in both federal and state courts. DOL Wage & Hour Division has more investigators to investigate anonymous complaints which often come from current and former disgruntled employees.

• • • Lots of attention on wages now: Presidential focus on minimum wage, the “white-collar exemptions” and the gender pay gap. Plaintiff lawyers have increased website efforts to recruit employees to bring suits Employees can bring collective actions Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

Common Pitfalls – FLSA • • • Not paying properly – Docking pay – Using Salary to avoid OT Improper classification – Improperly classifying as exempt – “Promoting” employees into exempt status – Independent Contractors – Interns Not paying overtime – She’s going to work “Off the clock” – Smart Phones Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.

FLSA Legal Cases •

Young, et al v. Dollar Tree Stores, Inc.

– Former hourly Assistant Store Manager (ASM) employees of Dollar Tree, filed these related lawsuits against Dollar Tree Stores, Inc. challenging the Dollar Tree‘s policy of forcing hourly Assistant Store Manager employees to work off the-clock, thereby failing to pay such employees for all times worked, resulting in minimum wage and overtime violations.

•

Manning v. Boston Medical Center Corp.

– Employee (nurses) sued BMC on basis that its automatic timekeeping system improperly deducted time for meals and breaks from employee hours worked. There were many times that the employee/s worked through their lunch/breaks and yet their supervisors still deducted this time from their pay.

What To Do?

• • •

EDUCATE AND TRAIN YOUR MANAGERS EARLY AND OFTEN

– Have a role-playing scenario with your manager – Create a fun quiz – Talk about legal cases – FOEs – Company and personal liability Provide a copy of your policies to all employees Advise the manager to call HR or President and then call Legal Counsel if needed!

The Top 5 Critical Employment Laws Managers Need to Know

Transcript The Top 5 Critical Employment Laws Managers Need to Know

DISCLAIMER

Kristina Keech Spitler, Esq.

Jennifer Massanova, PHR

A Note About Cell Phones

Thank You

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