Transcript Presentation Materials for Mandatory Supervisor Training

FORT VALLEY STATE
UNIVERSITY
Employment Law Training
2012
Jeffery L. Thompson
Constangy, Brooks & Smith, LLP
Telephone: 478-621-2414
E-mail: [email protected]
Let’s Talk About the
Law !
QUESTION #1
What Is Discrimination?


Cannot take an adverse employment
action (discriminate) based on race,
color, sex, religion, or national origin
with respect to employment practices,
terms or conditions of employment.
Discrimination is found by words (e.g.,
racial), actions (treating people
differently), or statistics (firing only
women or those over 40).
Title VII of
Civil Rights Act of 1964

Prohibits Discrimination
 Race
 Color
 Religion
 National
 Gender
 Sex
Origin
Let’s Talk About the
DOCUMENTATION
Before Corrective Action Ask:

Are you doing what is moral/ethical?

Does this make good business sense?


Is the discipline or discharge consistent with the
seriousness of the performance problem or disciplinary
violation ?
Are you treating the employee consistently with other
employees who committed the same offense?
Are You Following
Your Written Policies?

Do you have a progressive disciplinary policy?


At what step is the employee?


Does the employee know about the policy?
Is deviation from the policy warranted?
Do any other policies impact your decision?

Attendance, Leave, Disability, etc.?
What Should Be Contained In A
Corrective Action Memo

Date

Specific Violation

Mention Any Prior Related Discipline

If No Improvement- What Will Happen?

Employee Response

Employee Commitment

Signature of Employee

Supervisor’s Follow Up
What Concerns Your Lawyer
- Inconsistent Treatment
- Inaccurate Performance Reviews
- Progressive Discipline Not Followed
- Untimely Investigations
- Untimely Discipline
- Unsigned Discipline
- Secret Files
Five Most Common Reasons
Employers Are Sued
1. Failure to communicate job expectations
2. Failure to give notice when employees are not
meeting them
3. Absence of an opportunity to defend
4. Lack of consistency
5. Insult to dignity
Retaliation
1. Engaging in protected activity
2. Suffering an adverse action
3. Causation
QUESTION #2
Americans with Disabilities Act
Amendments Act
Disability Defined

Physical Or Mental Impairment That
“Substantially Limits” Major Life Activity,

Record Of Such An Impairment, or

Regarded As Having Impairment
“Substantially Limited”
Under ADAAA




Disabled Means Substantially Limited From
Major Life Activity
Only One “Major Life Activity” Need Be
Limited
Episodic Impairments, Or Impairments In
Remission Are Still “Substantially Limiting”
“Good” Mitigating Measures Are Not To Be
Considered (i.e. Medication)
“Major Life Activities”

Caring for oneself

Performing manual tasks

Seeing

Hearing

Walking

Speaking

Breathing

Learning

Working
“Major Life Activities” Continued
All of those, plus
 Eating
 Sleeping
 Standing
 Lifting
 Bending
 Reading
 Concentrating
 Thinking
 Communicating
And The New Regulations Add

Sitting

Reaching

Interacting with others
“Major Bodily Functions”
Completely new

Immune system

Normal cell growth

Digestive

Bowel

Bladder

Neurological

Brain

Respiratory

Circulatory

Endocrine

Reproductive
And The New Regulations Add

Special sense organs

Skin

Genitourinary

Cardiovascular

Hemic

Lymphatic

Musculoskeletal
IMPORTANT NOTE!

EEOC’s regulations provide that these are
NOT all-inclusive lists.
What To Do If You Encounter ADA
Issue With An Employee?

Engage in Interactive Process


May Need Information From Physician
May Be Necessary To Send To Specialist

Determine If Employee Can Be Accommodated

Determine If Accommodation Would Cause
Undue Hardship

Involve HR/Legal In Process
QUESTION #3
Family Medical Leave Act
FMLA
What Is The FMLA?

Federal Law that states eligible employees
entitled to at least 12/26 weeks of health
insurance continuation and job protected
leave per defined twelve-month period.
Eligible Employee


Employed 12 months (consecutive or nonconsecutive); and
Worked at least 1250 hours during the 12
months preceding the commencement of
the leave.
Eligible Leave
What Types of Leave Qualify for
FMLA Leave?
FMLA Qualifying Leave


Birth or Placement of Child for Adoption
To care for spouse, child, or parent with
serious health condition

Employee’s own serious health condition

Qualifying Exigency (military related only)

Military Caregiver leave
Serious Health Condition Defined


Inpatient treatment
Incapacity of three consecutive full calendar
days with:

Treatment 2 or more times
Or

One treatment plus a regimen of continuing
treatment
Serious Health Condition Continued

Pregnancy/Prenatal

Chronic conditions

Permanent/Long-term

Condition requiring multiple treatments
Serious Health Condition




Does not include routine physicals, eye examinations, or
dental examinations, and at home treatment by itself is
not sufficient
Cosmetic not covered unless inpatient/complications
Ordinarily, common cold, flu, ear aches, upset stomach,
minor ulcers, headaches other than migraines, routine
dental or orthodontia, periodontal disease not covered
absent complications
Substance abuse treatment covered, but can apply
“established policy” to use of illegal drugs.
Intermittent Leave
The Employer’s Headache


Defined as leave taken in separate blocks
of time because of a single illness or injury
rather than for one continuous period of
time.
May be taken in periods from one hour or
more to several weeks.
Intermittent Leave (cont.)


Taken due to an employee’s serious health
condition or that of a family member.
Cannot be used for birth or placement of a
child without the employer’s permission,
unless either the mother or newborn child
has a serious health condition.
Intermittent Leave (cont.)


Only the amount of leave actually taken may be
counted toward the 12 weeks of FMLA leave.
If an employee normally works a part-time
schedule or variable hours, the amount of leave
which an employee has used is determined on a
pro rata or proportional basis by comparing the
new schedule with the employee’s normal
schedule.
New Interpretation Clarifying Definition of
“Son or Daughter” under FMLA
in loco parentis = Acts as child’s parent

Not necessarily a biological or legal relationship to
child

Could include step-child

For step-families, all four parents are included

Does not appear to require day-to-day responsibilities


Allows employers to require certification of the
qualifying relationship
Opinion demonstrates trend to be more expansive
Notice


If the necessity for leave is based on an
expected birth or placement which is
foreseeable, the employee must provide the
employer with at least 30 days’ notice before the
date leave is to begin.
If the date of birth or the placement requires
leave to begin in less than 30 days, the
employee must provide notice as soon as
practicable.
Notice (cont.)


Where the need for leave is not
foreseeable, the employee must give
notice to the employer of the need for
FMLA leave as soon as practicable under
the facts and circumstances of the
particular case.
In the case of a medical emergency,
advance notice may not be required.
Social Networking and Harassment
In The Workplace
QUESTION #4
Problems Arising from
Social Networking

Ability to harass 24 hours a day, 7 days a
week!
“While technology can put a new spin on how harassment
manifests, the responsibility of employers to take harassment
seriously is not new,” said Luis Lucero, director for the
EEOC’s Seattle Field Office overseeing the case. “Text
messages, instant messaging, and social networking certainly
contribute to the blurring of formal lines of communication.
However, the law holds employers liable for the actions of
their supervisors and managers, so training them to prevent
and redress harassment, no matter what the medium, is
critical.”
The Most Common Harassment in
Social Networking:
Sexually Related or Other Vulgar
Comments
 E-mails
 Internet Pornography
 Sexting
 Stalking

Is This Really Something To
Worry About?
What do you think?
I Would Never Do Anything Like
That, So Why Worry?
“All that is necessary for the triumph of
evil is that good men do nothing.”
(or do less than they should)
Other Behaviors That Constitute
Sexual Harassment:

Innuendo

Invading space

Jokes of a sexual nature

Sexist comments

Whistling/Catcalling

Gender-based jokes

Discussions about sex

Gifts suggesting intimacy

Emails containing sexual
references/pornography

Comments about appearance

Staring

Requests for dates

Inappropriate photos on
Facebook and MySpace or
other social networking sites
accessible to employees

Displaying materials containing
sexual content; for example,
screen savers
The Most Common High-Risk
Behaviors:

Relationships With Co-workers

Relationships With Students

Texting Suggestive Comments
Relationships With Students
Perceptions:

Favoritism

Unfair influence
Repercussions:

Low morale

Negative work environment

Violation of USG Policy

Legal liability
Flirting/Courting Students
USG Policy Manual:
• The University prohibits all faculty and staff,
including graduate teaching assistants, from
pursuing amorous relationships with
undergraduates whom they are currently
supervising or teaching.
Relationships With Co-Workers
USG Policy Manual:
• The University strongly discourages amorous
relationships between faculty or administrators and
graduate/professional students and/or employees whose
work they supervise.
• Anyone in an amorous relationship with someone (s)he
has supervisory power over must recuse themselves
from decisions effecting compensation, evaluation,
employment conditions, instruction, and/or the academic
status of the subordinate involved.
Other Examples of Harassment







Inappropriate touching, sexual comments, jokes, etc.
Gender - “Women don’t belong here;” “ Women can’t do
this kind of work;” “He’s such a girly-boy.”
Race – “Boy”; hangman’s noose; “N” word.
National Origin -Wetbacks; Dots and Feathers; Gooks; camel
jockey.
Disability - “Cripple”; “Retard”.
Age -“Can’t keep up, Gramps?”; “He’s too old to cut the
mustard”; you are too old to learn this new technology.
Religion -“Why can’t you people go to church on Sunday like
God intended?”
Can You Be Individually Liable
For Harassment?



Might be individually liable under state harassment
laws
Might be individually liable for assault and battery
and intentional infliction of emotional distress.
This means you would incur attorneys fees + any
judgment.
Question #5
facebook
Womanscorned
Had a sh**y day at work today!!
6 people like this
bestfriend
Girlfriend, wassup?!
Womanscorned
Dumb __! supervisor lied on me! Gave me a
crappy eval so no raise. We know its just to
please “the princess” who hates me!
Somebody needs to do something about it!
Facebook Firings - Public Institutions


NLRA does not apply
Freedom of Speech concerns
 private citizen v. job related
 Does the speech relate to: any matter of political,
social, or other concern to the community.
 If yes, than proceed to the Pickering balancing
test
 Pickering balancing
 Whether the speech at issue impedes the
government’s ability to perform its duties
efficiently,
 The manner, time and place of the speech, and
 The context within which the speech was made.
Question #6
FINAL THOUGHTS
Management’s Key Role

Coach

Mentor

Facilitator of Employee’s Success
Questions