Transcript Slide 1

PUBLIC EMPLOYER POLICIES—BEST PRACTICES
Pamela B. Linberg
Jackson||Lewis LLP
1415 Louisiana Street, Ste. 3325
Houston, Texas 77002
713.568.7871
[email protected]
© 2011 Jackson Lewis LLP
Who we are
Jackson||Lewis LLP is a national law firm dedicated to
representing management exclusively in workplace law and
related litigation. With 46 offices and more than 650
attorneys nationwide, the firm has a national perspective
and sensitivity to the nuances of regional and local business
environments.
Pamela B. Linberg is Of Counsel to the Houston Office,
providing advice and counsel on employment litigation,
EEOC and other governmental investigations, and a variety
of employment practices, including employment contracts,
covenants, handbooks, and policies.
What We Do—Representative Practice Areas
• Litigation, including Class
Actions, Complex
Litigation and e-Discovery
• Trade Secrets,
Non-Competes and
Workplace Technology
• Affirmative Action and
OFCCP Diversity Planning
• Labor, including
Preventive Practices Wage
and Hour Compliance
• Disability, Leave and
Health Management
• Employee Benefits,
including Complex ERISA
Litigation, Workplace
Privacy and Executive
Compensation
• Global Immigration
• Workplace Safety
Compliance
Where You Can Find Us
Alabama
Arizona
California
Colorado
Connecticut
Florida
Georgia
Illinois
Indiana
Louisiana
Maryland
Massachusetts
Michigan
Minnesota
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
Ohio
Pennsylvania
Oregon
Rhode Island
South Carolina
Tennessee
Texas
Virginia
Washington
Washington, DC Region
West Virginia*
Wisconsin
*Non-resident office
Offices in 46 locations
PUBLIC EMPLOYER POLICIES—BEST PRACTICES
1.
Attendance, Leave and Pay Policies
2.
Discrimination Policies
*
Texas Labor Code/Title VII/
Sexual Harassment/Pregnancy/Age
3.
Accommodation Policies
*
4.
Special Policies for Public Employers
*
5.
Americans with Disabilities Act and ADAAA
Little Hatch Act/Due Process Concerns
Other Important Employment Issues
*
Recent Developments in Class Action Law
*
Retaliation Considerations
6.
Other Employment Policies to Consider
7.
Employee Acknowledgement of Policies
Purposes of Employment Policy Implementation
•
Communicates Expectations to Employees
•
Provides Guidelines for Supervisors Who
Manage Employees and Resolve Issues
•
Supports Uniform Employer Decisions
Among All Employee Classes and Depts.
•
Provides “Fair” Treatment of Employees
•
Enhances Credibility of Employer
Decisions and Employer Image
•
Provides Defenses to Certain Legal Actions
by Employees
ATTENDANCE,
LEAVE AND
PAY POLICIES
Attendance Policies
1. Neutral Attendance Policies
* Must be Reasonable
* Must be Uniformly Enforced
* Should be Documented
2. Provides Uniformity
3. Provides Defenses and Barriers to Claims
* Discrimination Claims
* Retaliation Claims
Leave Policies
1.
Family and Medical Leave Act
•
Provides certain employees up to 12 weeks of unpaid leave
•
Designed to help employees balance work/family
—
unable to work because of serious health condition
—
birth and care of newborn child
—
immediate family member w/ serious health condition
2.
Sick and Vacation Leave
3.
Disability Leave
4.
Military Leave (USERRA)
5.
Misc. State Law Requirements
•
Jury Duty Leave
•
Leave to Serve as Subpoenaed Witness
•
Emergency Evacuation Leave
Pay Policies--Best Practices Under the Fair Labor Standards Act
1.
Classification as Exempt or Non-Exempt
* Supervisor Should Inform Employee as to Status
* First Responders are NOT Exempt under DOL Regulations
2.
Proper Reporting of Time
•
Record ANY and ALL hours Work
—
NEVER Work Without Recording Time
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Employee must Certify and Attest to the Accuracy of Time
Records
—
3.
4.
“COMP” Time Effectively Does Not Exist
Corrections to Time Records
•
Time to Correct
•
Mechanism to Correct
Falsification of Time Records is a Terminable Offense
Discrimination
Policies
Discrimination Policies—Tex. Labor Code Ch. 21
1.
2.
Unlawful for Employer to Engage in Certain Actions on the
Basis of the following:
•
Race
•
Sex
•
National Origin
•
Age
Prohibited Actions include the following:
•
Failing to Hire Applicant
•
Discharging an Employee
•
Discriminating with Regard to Compensation
•
Discriminating with Regard to Terms, Conditions, Privileges
of Employment
•
Segregating Employee in a Way to Deprive Her of an
Employment Opportunity or Adversely Affect Her Rights
Discrimination Policies—Title VII and its Progeny
1.
Title VII makes it Unlawful for an Employer to Discriminate on the Basis
of any of he following:
2.
•
Race
•
Color
•
Sex
•
Religion
•
National Origin
Other Laws Make it Unlawful for an Employer to Discriminate on the
Basis of any of the following:
3.
4.
•
Pregnancy
•
Age (Workers over 40)
•
Disability
Sexual Harassment Law
•
Quid Pro Quo Harassment
•
Hostile Work Environment
Civil Rights Claims Against Public Employers
Discrimination Policies—Best Practices
Your Equal Opportunity (“EEO”) Policy Should Contain:
1.
Your business is committed to providing a diverse
employee group devoid of harassment and
discrimination;
2.
You will not discriminate on the basis of the protected
classes mentioned by federal and state law;
3.
You are committed to providing reasonable
accommodations to employees with religious observance
needs;
4.
You are committed to providing reasonable
accommodations to employees with disabilities; and
5.
You welcome and require your employees to participate
in your reporting policies.
Discrimination Policies—Reporting Procedure
1.
2.
3.
Include Anti-Harassment Policy
•
Define Harassment (e.g., any physical or verbal conduct
demonstrating hostility toward a person because of his or
her age, sex, race, color, religion, national origin, disability or
other “legally protected status”)
•
Commitment to provide Harassment-Free Workplace
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Provide Examples of Harassment that Will Not Be Tolerated
Create Formal Reporting Channels and Procedures
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Requirement that Employees Report Harassment
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To whom to report
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Supervisor
—
Human Resources or Executive
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Consider Anonymous Channel like email or telephone number
Protects Employer from Liability in Certain Situations
where Employees Fail to Utilize the Reporting Procedure
Accommodation
Policies
Accommodation Policies—ADA/ADAAA
1.
Prohibits discrimination against people with disabilities in employment.
2.
The ADA requires a job accommodation in certain situations, which is a
“reasonable adjustment to a job or work environment that makes it
possible for an individual with a disability to perform job duties. “
3.
4.
5.
Involves consideration of the following:
•
Required job tasks;
•
Functional limitations of the person doing the job; and
•
Level of hardship to the employer.
Examples of accommodations:
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Specialized equipment and facility modifications;
•
Adjustments to work schedules or job duties; and
•
Other creative solutions.
Considerations regarding accommodation:
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Required job tasks;
•
Functional limitations of the person doing the job; and
•
Level of hardship to the employer to provide the accommodation
Special Policies for
Public Employers
Public Employer Policies—Little Hatch Act
1.
2.
Restricts Political Activities of State and Local Gov. Employees:
•
Prohibits use of official position to influence a state or local
government election;
•
Prohibits intimidation of any other officer or employee to
vote for or against any candidate or measure;
•
Prohibits solicitation of contributions from other employees
or a person who does business with the state or local gov.;
•
Provides that governmental buildings cannot be used to
display campaign literature, banners, and the like for any
political party, candidate or measure; and
•
Provides that employees may not campaign on the job.
Policies must:
•
Be clear, narrow and well defined;
•
Must not affect off-duty conduct; and
•
Must only apply to government elections on same level.
Public Employer Policies—Due Process
1.
Does not apply to “at will” employees
2.
“For cause” employees must be given due process:
•
•
3.
Notice
—
Must be given reasons for termination/demotion/etc…
—
Must be given time/place/details for hearing
Opportunity to be Heard
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Must be by decision-maker
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Must have opportunity to argue decision
Procedures for Post-Decision Appeal
•
Who will hear appeal
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Advisory or binding decision
•
Standard of review: De novo or abuse of discretion
Other Important
Employment Issues
Other Important Issues-Recent Class Action Law
Wal-Mart Stores v. Dukes, No. 10-277 (U. S. June 20, 2011).
1.
Supreme Court rejected class action certification of
nationwide class of 1.5 million female workers.
•
“One of the most expansive class actions ever.”
•
Allegations of gender discrimination in pay/promotion
•
Managers employed own subjective criteria for decisions
2.
Holdings
•
•
No commonality – No “glue” to hold together the alleged
reasons for all those decisions
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No allegation of specific biased tests, etc…
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Managers using own discretion opposite of uniform policy
Not capable of class-wide resolution
—
different individual awards (for back-pay, etc…)
—
different injunctive relief
Other Important Issues—Retaliation Issues
1.
2.
Unlawful Retaliation is:
•
Adverse action taken by an employer;
•
Against an employee;
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Because the employee engaged in;
•
Protected activity.
Examples of Protected Activity include:
•
Filing a claim for discrimination based on race, sex, national
origin, religion, age, etc…
•
Reporting discrimination or providing information during an
investigation
•
Filing a claim for accommodation for disability
•
Filing a claim for leave, worker’s compensation, etc…
•
Engaging in protected union activity
Other Important
Employment
Policies
Other Employment Policies to Consider
Examples of other policies to consider include:
1.
Work Performance
2.
Rules of Employee Conduct
3.
Social Media Issues
4.
Workplace Bullying Rules
5.
Drug/Alcohol Testing
6.
Smoking
7.
Workplace Romance
8.
Nepotism
9.
Binding dispute Resolution provisions
Acknowledgement of Workplace Policies
1. Employers should ensure that Employees
Acknowledge:
•
Receipt of a copy of the Policies;
•
Obligation to Read, Understand, and Adhere to
Policies;
•
Policies DO NOT alter the Employee’s At-Will Status;
•
Employer has a right to Modify, Supplement, Rescind
or Revise the Policies (without Notice).
2. Acknowledgement should be:
•
In writing;
•
Filed and Maintained by the Company; and
•
Updated when Policies are Updated.
Questions?
Pamela B. Linberg
Jackson||Lewis LLP
1415 Louisiana Street, Ste. 3325
Houston, Texas 77002
713.568.7871
[email protected]
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Thank you!