labor and employment aspects of managing the workplace

Gina A. KuhlmanGina A. Kuhlman October 23, 2014October 23, 2014

Labor and Labor and Employment Aspects Employment Aspects

of Managing the of Managing the WorkplaceWorkplace

THE NORTHEAST SECTION OF THE OHIO WATER ENVIRONMENT ASSOCIATION

Presented by:Presented by:

Gina A. Kuhlman, Esq.

9 Oakshore DriveBratenahl, Ohio 44108

Email: [email protected]

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AGENDAAGENDA

Discrimination, Harassment and Retaliation Disability and Medical Leaves Employee Privacy Issues Labor Law Developments

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Discrimination, Retaliation and Discrimination, Retaliation and Harassment -- Who is Protected?Harassment -- Who is Protected?

Age – over 40– In 2013, 22.8% of all EEOC charges included

claims of age discrimination

Race – any race– In 2013, 35.3% of all EEOC charges included

claims of race discrimination

Color – any color

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National Origin – any national origin– In 2013, 11.4% of all EEOC charges included

claims of national origin discrimination

Religion – any religion of a person with a sincerely held belief– In 2013, 4% of all EEOC charges included

claims of religious discrimination

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Marital Status - married, single, divorced, widowed, or separated, and does not include the specific identity or actions of an individual's spouse

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Sex – either sex (includes pregnancy)– In 2013, 29.5% of all EEOC charges included

claims of sex discrimination

– Transgender

– Sex-Stereotyping and sexual preference

– Pregnancy

• A pregnant employee must be allowed to work for as long as they can perform their job duties

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Disability – individuals with a physical or mental impairment which substantially limits a major life activity or are regarded as disabled– In 2013, 27.7% of all EEOC charges included

claims of disability discrimination

Genetic Information Nondiscrimination Act

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HarassmentHarassment

Harassment based upon any protected classification, including race, color, religion, sex, national origin, disability, age, or marital status is prohibited

Harassment based upon other protected classifications is analyzed under a similar framework to sexual harassment.

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Hostile Environment Harassment - sufficiently severe or pervasive conduct that alters terms and conditions of employment and create discriminatorily abusive working environment

Quid Pro Quo Harassment – making a positive or negative employment action conditioned upon submission to a sexual demand

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Who Falls Victim to Sexual Harassment? -- Anyone– The victim may be the same sex as the harasser

• Between 1999 and 2009 the percentage of sexual harassment claims filed by men doubled from 8% to 16%. In 2014, the percentage of sexual harassment claims filed by men was 17.6%

– The victim may be someone not directly harassed but affected by the harassment

– An employee may not be a victim if he/she “welcomes” the conduct. But beware, an employee who engages in sexual banter, for example, does not give you free reign to do so back, and will not excuse you for violating the Company’s policy.

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RetaliationRetaliation

Retaliation – adverse action against an employee because the employee complained of or participated in an investigation of harassment or discrimination. – Includes adverse treatment based on a

retaliatory motive that is reasonably likely to deter protected activity

Continuing increase as basis for charges– 41.1 percent increase in FY 2013 compared to 38.1

percent in FY 2012

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EEOC EnforcementEEOC Enforcement

In 2013 the EEOC obtained its highest recovery in administrative history, increasing by $6.7 million to $372.1 million

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Individual LiabilityIndividual Liability

Supervisors may be held personally liable in a civil court– Courts in Ohio, Washington and West Virginia

have all held that individual supervisors and managers may be held personally liable for their own discriminatory conduct

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Minimizing Employment-Related ClaimsMinimizing Employment-Related Claims

If you see it, you must report it. You cannot ignore it because you didn’t receive an official complaint or because an employee asked you not to do anything.

If you receive a report, you cannot ignore it because the person who complains is not the victim

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As a supervisor, document performance and discipline

Be consistent and fair in administering equal treatment to all employees

Establish and reinforce expectations Take all employee complaints/concerns

seriously and take them up the chain of command

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Actively manage exposureActively manage exposure– Strong anti-discrimination policies and utilization of Strong anti-discrimination policies and utilization of

complaint and investigation procedurescomplaint and investigation procedures

– Training Training • SupervisorsSupervisors

– LawsLaws

– EvaluationsEvaluations

– Employee ManagementEmployee Management

• EmployeesEmployees

– Documentation Documentation

– Evaluations and DisciplineEvaluations and Discipline

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Effective complaint and investigation proceduresEffective complaint and investigation procedures

Audit implementation of policies and proceduresAudit implementation of policies and procedures

Assess record-keepingAssess record-keeping

Assess performance evaluation criteria and Assess performance evaluation criteria and monitor evaluationsmonitor evaluations

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Disability and Leaves of AbsenceDisability and Leaves of AbsenceThe FMLA and the ADAThe FMLA and the ADA

ADA: An impairment that substantially limits a major life function

FMLA: Serious health condition of employee or family member; birth or adoption of child

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Medical information that employer can obtain– ADA: None – until after a conditional offer of

employment is extended (and then it must be required of all who apply for that position) • Employee may select physician

– FMLA: Employer can request certification of serious medical condition and information such as diagnosis, probable duration and prescribed regimen of treatment• Employer cannot require certification by employer’s

choice of physician

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Duration of the statutory right / obligation– ADA: Obligation to provide a reasonable

accommodation has no limit as far as duration. However, once a reasonable accommodation is made, employer is not obligated to continue such an accommodation indefinitely, if the accommodation becomes unreasonable

– FMLA: Unpaid leave up to 12 weeks every 12 months; the leave can be intermittent or on a reduced schedule

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Obligations to rehire / return to former position

– ADA: If employee is qualified to perform essential functions, with or without reasonable accommodations, then employer is required to return the employee to work, provided employee has complied with the employer’s work rules (such as attendance)

– FMLA: Must be returned to same or equivalent position

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COMMON PITFALLS– Limitations on medical inquiries and use of information

– Rigid application of “no fault” attendance policies

– Availability of leave as an ADA accommodation upon exhaustion of FMLA leave

– Necessity of individual determinations

– Employee notification

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Medical Certification– ADA: May require details and an explanation of a

medical condition, including follow up with the employee’s treating physician. An employer can require a “job-related medical exam” by its medical examiner

– FMLA: Employer is limited to information on the return to work form and may not follow up with the treating physician. Information may be obtained via a second and even third opinion if there are differing conclusions

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Light Duty / Transitional Return to Work– ADA: Is favored within the concept of

reasonable accommodation

– FMLA: An employee may not be required to work in a light duty capacity but instead is “entitled” to 12 weeks of leave

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EMPLOYEE PRIVACY ISSUESEMPLOYEE PRIVACY ISSUES

Is there a right to privacy?– 4th Amendment

– Intrusion on seclusion

– Both require a determination of whether the employee’s expectation is objectively and subjectively reasonable

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EMPLOYEE PRIVACY ISSUESEMPLOYEE PRIVACY ISSUESMonitoringMonitoring

Employer’s Policy– Express, comprehensive written policies can

defeat an employee’s expectation of privacy when it comes to the use of workplace technology

– Manner in which policy is enforced

• An employer that fails to adopt policies or warnings or acts inconsistently with its policies or warnings may find that the employee still has a reasonable expectation of privacy

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EMPLOYEE PRIVACY ISSUESEMPLOYEE PRIVACY ISSUESEmailEmail

An e-mail sent on the work e-mail system will, in all likelihood, “belong” to the employer

E-mails sent or received on a company phone are also likely to be the “property” of the employer and subject to inspection and review, just as e-mails sitting in the in-box or out-box

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EMPLOYEE PRIVACY ISSUESEMPLOYEE PRIVACY ISSUESEmailEmail

An e-mail on a private account, if used for the employer’s work or saved to the employer’s system, can probably be reviewed by the employer as well. However, if an employee views but does not save a private e-mail, the employee probably has a legitimate expectation of privacy.

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EMPLOYEE PRIVACY ISSUESEMPLOYEE PRIVACY ISSUESSocial MediaSocial Media

Significant intrusion into private lives will not normally be justified unless there is a real risk of serious damage to the business

Policies– Employees posting damaging or libelous comments about a

company or its products or publishing sensitive commercial data

– Confidential and proprietary information

– Policies should prohibit the posting or other transmission of any threatening, harassing or otherwise discriminatory comments about other employees or customers

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EMPLOYEE PRIVACY ISSUESEMPLOYEE PRIVACY ISSUESSocial Media and “Protected Activity”Social Media and “Protected Activity” Concerted, protected activity:

– discipline or discharge of an employee violates Section 8(a)(1) if the following four elements are established: (1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act; (2) the employer knew of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity.

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EMPLOYEE PRIVACY ISSUESEMPLOYEE PRIVACY ISSUESSocial Media and “Protected Activity”Social Media and “Protected Activity” Not concerted activity:

– the NLRB found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law. The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing accident at an adjacent Land Rover dealership, which did not involve fellow employees, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired. The Board agreed with the Administrative Law Judge that the salesman was fired solely for the photos he posted of a Land Rover incident, which was not concerted activity and so was not protected.

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EMPLOYEE PRIVACY ISSUESEMPLOYEE PRIVACY ISSUESSocial Media and “Protected Activity”Social Media and “Protected Activity” Concerted activity:

– the NLRB found that it was unlawful for a non-profit organization to fire five employees who participated in Facebook postings about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to social media and found that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act

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NLRB DevelopmentsNLRB Developments

Broad view of concerted activity– “liking” a Facebook post may be concerted

activity

Broad view of protected speech– “Can’t tell the difference?” the poster read.

“That’s too bad because Jimmy John’s workers don’t get paid sick days. Shoot, we can’t even call in sick. We hope your immune system is ready because you’re about to take the sandwich test.”

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NLRB DevelopmentsNLRB Developments

Confidentiality– "[Employer] may decide in some circumstances

that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination."

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Managing the Non-Union WorkplaceManaging the Non-Union Workplace

The Individual Manager’s Role– Performance evaluations

– Opportunities

– Discipline and criticism

– Include employees in as much decision-making and planning as is feasible

– Conduct regular meetings with staff, which provide an arena to learn what is perceived by employees as problems and to solve those problems

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MANAGING THE UNION SHOPMANAGING THE UNION SHOP

Basic Concepts– Hostility toward the union is self-defeating

– Don’t deal directly with employees in areas relating to wages, hours or conditions of employment – mandatory subjects of bargaining

– Ignore union blunderbuss

– Be fair, firm, credible, consistent and predictable

– Union officials may consider employee to be unreasonable or trouble

– Refer to Management Rights for a decision

– Open dialogue

– Don’t “bend rules” / past practices

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Administer the Contract– Day-to-day administration– Know contract inside and out; Union Steward will– Failure to follow contract leads to:

• Grievances• Erosion of management’s authority

– Good• Administration based on agreed upon rules• No need to explain• Employee complaints – go see the union

– Bad• Less discretion• Constant meetings

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Avoid unfair labor practices– Unilateral action

• Wages, hours, conditions

• Always notify of changes

– Discrimination• Union involvement

– Domination• No assistance or support to unions / employee

teams / committees

• Teams / committees or if authorized by union

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Gina’s practice is focused on representation of management interests in labor and employment law. She counsels and represents management in the areas of employment-law compliance issues, preparation of personnel policies and employment agreements, and has successfully defended numerous discrimination and other wrongful termination claims at the agency level and in both state and federal courts. She also represents employers in collective bargaining negotiations, arbitrations, unfair labor practice proceedings and related court actions.

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Gina KuhlmanGina Kuhlman

9 OAKSHORE DRIVE9 OAKSHORE DRIVEBRATENAHL, OHIO 44108BRATENAHL, OHIO [email protected]@gmail.com

labor and employment aspects of managing the workplace

Documents

retaliation anddiscrimination

claims of age discrimination

retaliation disability

agendaagenda discrimination

protected classifications

eeoc charges

sexual demand

disability individuals