What Every Employer Should KnowEmployment Law Basics

May 14, 2013

Robert Hoffer, Esq.Dressman Benzinger LaVelle psc

rhoffer@dbllaw.com(859) 341-1881

INTERVIEW - HIRING PROCESS

Permissible & Non-PermissibleInterview Questions…

EDUCATION- Questions regarding education/training are

acceptable if there is a business reason- Employer should not require a higher level

of education than necessary

Permissible & Non-Permissible Interview Questions…

MARITAL STATUS- Questions regarding marital status, pregnancy,

future child bearing and children are illegal

Permissible & Non-Permissible Interview Questions…

DISABILITY- Cannot ask if person has any disability- Cannot ask about previous workers’ compensation

claims- Can inquire whether applicant can perform

essential functions- Can inquire whether applicant can meet the

requirements of the employer’s work hours, overtime hours and attendance policies

After the Interview…

Review application Review interview notes Follow through with reference checks and

confirmation of educational background Be consistent with all applicants Retain applications and all notes for one year Do not make promises or guarantees for job Offers (verbal and in writing) should be

consistent Do not want to change at-will status

DOCUMENTATION TIPS

How to Document Correctly

DO NOT PUT ANYTHING IN WRITING THAT YOU WOULD NOT WANT A JURY OR JUDGE

TO SEE

Document Poor Performance

Maintain a cumulative record of ongoing employee performance

Tell employees the consequences of failure to improve

Document employee warnings & assessments Document attendance & tardiness Document your expectations

Personnel Documents

In legal/administrative proceedings, documents are discoverable

Focus on facts, not opinions or conclusions Avoid off-hand comments about age, sex,

religion, etc. Do not send strategy in e-mails

Employee Response to Discipline

Employee should be given opportunity to respond

Employee should be interviewed and this should be documented

Employee should be presented with the facts

How to Document Correctly

Date the document with month, date and year List the name and job title of individuals present

in a meeting Refer specifically to a policy if applicable Avoid personal opinions or beliefs Avoid sarcasm Preparer need sign and print name Complete documents close to time of the event

Employee Evaluations

Evaluations should be done regularly Reviewed by employee & supervisor Signed by employee

Signature does not have to signify that employee agrees, only that it was reviewed by employee & supervisor

Allow employee to write a response

Tips for Good Evaluations

Remove subjectivity if possible Written statement of performance should be

included on appraisal If ranking system is used, give written

description to support ranking Results should be reviewed with employee and

employee should sign Refusal to sign should be documented with a

witness Be honest

Steps for Termination

All terminations should go through HR and be pre-approved

Employee should be notified of termination in person with at least 2 company representatives present

Do not apologize to employee Be straightforward, compassionate & sincere Tell the employee the basis for the termination Say no more than is necessary Document the termination including employee’s

reaction

Giving References All references go through HR Best Policy - verify dates of employment and give no other

information Bad reference could result in defamation action against

employer No duty to advise of employee’s shortcomings Have one person responsible for reference checks (HR) Letter of recommendations should not be done Be wary of LinkedIn recommendation

Discrimination

Ohio is an employment at-will state Discrimination laws and public policy are

exceptions to employment at-will Examples of federal and state discrimination

laws Title VII Age Discrimination in Employment Act Americans with Disabilities Act Family and Medical Leave Act State civil rights laws

Discrimination

Cannot discriminate in any terms of employment on basis of:- Age (over 40)- Sex- Race- National origin- Religion- Disability- Veterans’ status

Title VII of the Civil Rights Act of 1964

Applies to employers with more than 15 employees

Prohibits discrimination on the basis of race, color, sex, national origin and religion

Applies to hiring, discipline, discharge, benefits and other terms and conditions of employment

300 day statute of limitations with EEOC for federal law

Religion Discrimination The employer may not discriminate as to

other terms and conditions of employment (i.e. salary/benefits) based on an employee’s religious belief

Employers must accommodate sincerely held religious beliefs of an employee

Title VII protects unconventional as well as traditional beliefs

An employer may not coerce employee participation or non-participation in religious activities

The Sick EmployeeADA/FMLA Issues

Sick Employees - Beware

Be knowledgeable of FMLA/ADA issues

Can terminate sick employees for violating attendance policies if ADA and FMLA do not apply

Disability Americans with Disability Act

Employers may not discriminate against qualified individuals who, with or without reasonable accommodation, can perform the essential functions of the job

Disability Discrimination

Definition of a disability: Substantial impairment of a major life activity A record of such a disability Regarded as having such an impairment

Major life activities: Caring for oneself, performing manual tasks, walking,

breathing, seeing, hearing, speaking, learning, working, eating, sleeping, bending, reading, concentrating, thinking and communicating

It is a vague definition that has created a lot of litigation

Disability Discrimination Reasonable accommodations must be given if

requested These may include:

Modified policies and procedures Modified equipment Part-time or flexible schedules Additional leave Transfer to a vacant position Reassignment of non-essential functions

A determination of accommodations should be done for each disabled employee.

Must engage in interactive discussion

Whose Responsibility is it to Request/Identify Accommodations?

It is the employee’s responsibility to request a reasonable accommodation such as leave time

Employers should not ask or assume an employee has a disability or needs an accommodation unless the need is obvious

Employers should focus on job performance not what may be causing poor job performance

Protecting Against DisabilityDiscrimination Claims…

Once the employee requests an accommodation, the employer must engage in an interactive process with the employee

Purpose of interactive process is to identify precise limitations resulting from disability and potential accommodations

Document requested accommodations and offers made by the employer

Ask employee to provide request for accommodation in writing

All requests need not be granted but must be considered

Family & Medical Leave Act“FMLA”

This Act provides eligible employees up to 12 weeks of job-protected leave annually to use for Pregnancy Prenatal care Serious health conditions of the employee or his/her

immediate family An employee must physically work:

1,250* hours (average of 25 hours per week) during the 12 months prior to the leave

Work at a location where at least 50 employees are employed within 75 miles

*1250 hours is actual hours worked (exclude vacation, sick time, etc.)

Reinstatement

Employee must be reinstated to same duties, rights, benefits and pay.

This includes same shift unless employee agrees to different start/end time

Must hold employee’s job

Serious Health Condition…

Inpatient care for any length of time Absence greater than 3 days

Two visits to a health care provider or One visit and ongoing treatment

Pregnancy or prenatal care Chronic condition (e.g. asthma)

Must see provider at least 2 times per year Permanent or long-term condition

(Alzheimer’s) Condition that requires multiple treatments

(cancer/chemotherapy)

Military Leave

Military leave Deployment – leave to get family and service

member ready (12 weeks) Care for injured service member (26 weeks)

Discipline or Terminate with Caution!

When, how and under what circumstances may an employer discharge the employee for absenteeism? Cannot include FMLA time in absences or time that

should have been FMLA time

FMLA protection does not extend to any dishonest acts an employee might perform in connection with FMLA leave

Violation of company policy Misuse of leave Moonlighting

Medical Certification

Employers can request medical certification from a health care provider Always request a certification Certification can come from a doctor, chiropractor,

midwife, etc. Must notify employee that certification is required Once certification is returned, employer must send

second notice confirming leave (Designation Notice) If no certification is returned, may count it as an absence

Individual Liability & Your Protection

You can be held personally liable, even if you are doing your job!

Use caution in dealing with attendance issues Supervisors should consult with HR to get

clearance for any disciplinary action against someone who has taken or has requested leave

HARASSMENT ISSUES

Harassment

Federal and state laws prohibit harassment on basis of race, color, sex, national origin, religion, disability and age

It is more than sexual harassment It is a broad definition

Two Forms of Harassment

Quid pro quo (this for that)-some benefit of employment in exchange for a sexual favor.

Hostile Environment (most common) Conduct that is severe or pervasive to alter

the conditions of employment Unwelcome conduct Can be on basis of race, sex, disability, age,

religion or any other protected category

Hostile Work Environment

Courts consider the totality of circumstances How often were the comments and/or touching? Was one person in a supervisory capacity over

the other? How severe or egregious were the comments

and/or touching? What is the tenure of the employees? Have there been other complaints about the

same person? Does either person have a motive to lie?

Courts are more likely to find hostile work environment where there is:

Pornography

Vulgarity

Touching

Sexual propositioning

Degrading comments

Embarrassing or personal questions

Sexual jokes

Terms of endearment

Discussions in Workplace

Employees should not be discussing items of a sexual nature

Sexual banter and joking is not proper in the workplace

Never assume any discussion is private with another employee

Harassment Policy

Written procedure for employees, clients or visitors to file complaints

Employees should put the complaint in writing This writing is for the protection of the employer

and to allow a complete investigation into all allegations

If employee refuses, second best option is to write down complaint and have employee sign

Harassment Policy

More than one person should take complaints Confidentiality cannot be promised However, only those with a need to know should

be involved It is very important to confine the investigation

as much as possible The fewer people involved, the less liability

Reporting Harassment

When a supervisor or manager receives a complaint, he/she should immediately notify HR or management

Once a complaint is stated, it MUST be investigated-no privacy in complaint

A company cannot ignore a complaint even upon request from the employee

How a Complaint is Handled

HR/Management will: Obtain a written complaint from the

complaining employee Investigate the allegations by reviewing the

facts, interviewing the persons involved and any witnesses

Ask the person complaining what the preferred resolution is

Important to get details: where, when, who Obtain any other evidence (notes, e-mails,

etc.)

Harassment

Employer’s Responsibility: Proper investigation and resolution (even post-

termination) Take ALL complaints seriously Follow the company’s policy Schedule a follow-up meeting with person

complaining Assure that harassment has stopped Assure that no retaliation has occurred

Investigation Notes

The investigation notes are not privileged and completely discoverable

Documents may show up later at legal/administrative proceeding

Focus on facts, not opinions or conclusions

Retaliation

If an employee makes a complaint of harassment, he/she has legal protection from retaliation

Employees cannot suffer an adverse action because of the harassment complaint

All witnesses must be told not to discuss the investigation

If employees are discussing the complaint, discipline should occur

The alleged harasser must be told not to discuss the complaint

E-mails & Text Messages

E-mails and texts are discoverable in legal proceedings

Do not use e-mail to report harassment or discuss a harassment complaint

Employees should not be using work e-mails to forward jokes or anything inappropriate

Employees should not use text messages to send inappropriate messages

Counsel employees who are using e-mail or texts inappropriately

Social Media

Use of Facebook with employees is increasing Facebook posts can be problematic Postings on Facebook or other sites can be the

basis for a harassment claim Public information can be basis for discipline

Workplace Etiquette for Employees

Be Professional Consider whether you would want your remarks quoted

or your actions videotaped Consider whether you want others to read your e-mails If not, reconsider whether your behavior is appropriate

Be Courteous No obscene language No dirty jokes No terms of endearment

NO TOUCHING!

Social Media Issues

Twitter, Facebook, MySpace, LinkedIn and Other Social Media

Can employers regulate what an employee posts on the Internet if the posting is done while off-duty?

Should be some connection between off-duty conduct and impact on employer

There are many factors to consider It depends on:

where the information is what the information is what type of employer you are

Laws That May Restrict Use of Social Media

There are federal and state laws that come into play

National Labor Relations Act Protects the rights of employees to form unions, engage

in collective bargaining, organize strikes and engage in concerted activities

If activity is concerted, it is protected. To be concerted, it must be related to an ongoing labor

dispute and must not be disloyal, reckless or maliciously untrue

An example would be employees complaining about wages or work conditions or attempting to unionize

Applies to union and non-union employers

Thank you!