Employment Legal Issues

Beginning, Managing & Ending

Employment Relationships

Amy Adelman

Beth Clark-Morrison

Office of the General Counsel

Emory University

School of Medicine Department Administrators Training Program

November 3, 2006

12:30 p.m. – 1:30 p.m.

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Goals:

Overview of Relevant Laws – Know the playing field

Hiring Decisions You Will Not Regret Managing Employee Performance/Avoiding

Legal Landmines Termination without Litigation

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Knowing the Playing FieldFederal and State Laws

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Title VII of the Civil Rights Act

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

Includes pregnancy and sexual harassment Prohibits retaliation Requires reasonable accommodations for

genuinely held religious beliefs and practices

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Title VII prohibits sexual harassment

Quid Pro Quo harassment = decisions are based on submission to or rejection of unwelcome sexual advances

Hostile Environment = unwelcome conduct of a sexual nature that is sufficiently severe or pervasive and unreasonably interferes with an employee’s job performance or creates an intimidating, offensive or hostile work environment

Supervisors generally have a duty to investigate allegations of sexual or other harassment and to ensure a harassment-free work environment

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Age Discrimination inEmployment Act (ADEA)

Prohibits discrimination against people age 40 or over

Prohibits age-based harassment Prohibits retaliation Court may find discrimination based on age

even if both employees/applicants are over 40

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Americans with Disabilities Act(ADA)

Prohibits discrimination against a qualified individual with a disability who can perform the essential functions of the job with or without reasonable accommodation

Requires employers to make “reasonable accommodations,” such as unpaid leave, change in work schedule, transfer to a vacant position

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What is a Disability?

Physical or mental impairment that substantially limits a major life activity

Record of such an impairment Perceived/regarded as having such an impairment

Examples: alcoholism, hearing or visual impairments, HIV status, diabetes, mental impairments

Disability is broadly defined.

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Family and Medical Leave Act (FMLA)

Requires covered employers to provide eligible employees up to 12 weeks of unpaid leave during a twelve month period for:

Birth or adoption of child Employee’s serious health condition To care for spouse, child or parent with a serious

health condition

Intermittent leave may be necessary Burden generally on Employer to offer FMLA

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Uniformed Services Employment and Reemployment Rights Act (USERRA)

Covers employees who are called to military service/training

Restoration rights upon return from service (rights differ based on length of service)

Includes an escalator clause – put the employee in the place they would have been (raises, promotion) but for military service

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Other

42 USC § 1981 National Labor Relations Act Workers Compensation – on the job injuries Fair Labor Standards Act State law theories – invasion of privacy,

defamation, breach of contract, negligent hiring, negligent supervision, assault & battery

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Whistleblower Laws

Protects employees who participate in proceedings under such statutes as the Fair Labor Standards Act, National Labor Relations Act, Occupational Safety and Health Act, Clean Air Act, Medicare/Medicaid Anti-kickback Statute, False Claims Act. Employers may not discharge, refuse to hire, harass, or otherwise discriminate against a person because of such activities.

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HIRING: Decisions YouWill Not Regret

Key – Find the right person for the job by: Appropriate interviews, careful consideration and

thorough background checking Consistent fact-gathering process Not over-estimating ability to prevent history

repeats Avoiding the “warm body” syndrome

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HIRING:Interview Topics

General Rules: Pre-employment interviews may include any

question which is job-related and designed to give interviewer knowledge of applicant’s qualifications for the vacancy

If interviewer does not have a legally permissible reason to use requested information, interviewer should not ask

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HIRING:Interview Topics

Topics that should be avoided:

Gender/Marital Status –

Are you married/engaged/divorced/dating? Is “Miss,” “Mrs.,” or “Ms.” appropriate? What is your spouse’s occupation? What are the ages of your children? Do you plan to have additional children? Would you return to work after having children? What are your childcare arrangements?

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HIRING:Interview Topics

Topics that should be avoided:

Age – What is your age? How long do you plan to work before retiring?

Religion – What church do you attend? Do you always wear that head scarf?

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HIRING:Interview Topics

Topics that should be avoided:

Race – What is your race? How do you feel about workforce diversity?

National Origin/Citizenship – What kind of name is that? Where were you born? What is your citizenship? Permissible to ask: “Are you either a citizen of the U.S. or

otherwise legally authorized to work in this country?”

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HIRING:Interview Topics

Health/Medical Information –

ADA prohibits employers at the pre-offer stage from asking an applicant whether s/he has a disability or about the severity of any disability.

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HIRING:Interview Topics

ADA-related topics that should be avoided:

Do you have any medical conditions? Is there any health-related reason that you may not be able to

perform the job for which you are applying? How many illness-related absences did you have last year? Are you taking any prescription drugs? Have you ever filed for worker’s compensation insurance? Have you ever been treated for drug addiction or alcoholism?

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HIRING:Interview Topics

ADA-appropriate lines of inquiry: Does applicant meet the specific pre-requisites for the

position (e.g., degree, work experience, license)? If applicant reveals or has obvious disability, the issue can

be carefully discussed pre-offer. Best to avoid/limit topic. Post-conditional offer, the candidate may be asked if s/he

can perform essential job functions with or without reasonable accommodation for any impairment

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HIRING:Medical Exams

Pre-Offer – Medical exams are unlawful.

Post-Offer – Medical exams are lawful if all employees in the job category must undergo same exam, exam is business-related and medical information is kept confidential.

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HIRING:Interview Topics

Military Obligations –

No future military service obligation questions.

Credit History –

No prior bankruptcy or garnishment questions.

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HIRING:Background Checks

Thoroughly check backgrounds of finalists: Invest enough time in this process Feedback from references and prior/current

supervisors Find people who will share information “Google” individual Best predictor of future conduct is past conduct

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HIRING:Criminal Background Checks

(if applicable)

Prior convictions – may be considered but not an absolute hiring bar

Other mandatory considerations:1) Nature of job;2) Nature and seriousness of offense; and3) Length of time since conviction

Arrests, without convictions, may only be taken into consideration if employer has reasonable evidence that the person actually engaged in the conduct for which s/he was arrested

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HIRING:Background Checks

Negligent Hiring Claims: Thorough reference checking helps to

eliminate claims Scope of check should be commensurate

with risk to the public Tension between not investigating enough

(negligent hiring claim) and being too intrusive (federal discrimination laws)

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HIRING:Employment Offers

Proper authority Offer in writing Should state that the employment is “at will” and

terminable at any time for any reason (for non-faculty) Use Dean’s Office templates for offer letters to faculty Refer to employee as a “regular,” “full-time,” or “part-

time” employee, rather than a “permanent” employee Do not indicate a specified term/length of employment Quote the wage in the smallest appropriate increment

(hourly or monthly rate) Reference any contingencies

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Managing Employees/Avoiding Landmines

Communicate expectations – don’t expect your employees

to be mind-readers.

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Managing Employees/Avoiding Landmines

Give honest, timely and fair performance appraisals

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Things NOT to Say in Performance Appraisals or Other Documentation

Do not refer to an employee who has taken FMLA leave as “unreliable” or “not dedicated”

Do not describe an employee who has filed a complaint as “disruptive” or as having a “bad attitude”

Don’t describe an older worker as “lacking energy” or “slowing down” (and don’t urge employees to retire)!

Don’t include anything you wouldn’t be comfortable explaining to a jury

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Managing Employees/Avoiding Landmines

Treat employees with respect

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Managing Employees/Avoiding Landmines

Document, Document, Document!

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Goals of Documentation: Define expectations Explain, as specifically as possible, how employee

is not meeting expectations Explain consequences of continued failure to meet

expectations Provide opportunity for improvement Offer assistance if needed Avoid termination, but if termination is ultimately

necessary, the documentation will show that we have been fair

Managing Employees/Avoiding Landmines

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Managing Employees/Avoiding Landmines

Don’t avoid problems.

They just become bigger problems.

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Managing Employees/Avoiding Landmines

Don’t diagnose. Discipline!

(FSAP won’t turn your underperforming employees into star performers!)

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Managing Employees/Avoiding Landmines

No mandatory referrals to FSAP Make sure employee is aware of available

resources It is ultimately the employee’s decision Don’t inquire as to whether employee went to

FSAP Special rules apply in “fitness for duty” situations –

only used to determine if employee is a danger to self or others/fit to perform essential functions of the job

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Managing Employees/Avoiding Landmines

Don’t take action (or inaction) based on perceptions

“She won’t improve. She’s too paranoid to be productive.”

“He won’t respond to constructive criticism because he’s passive-aggressive.”

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Managing Employees/Avoiding Landmines

Don’t retaliate!

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Managing Employees/Avoiding Landmines

Don’t ignore complaints, even if employee requests “confidentiality.”

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Managing Employees/Avoiding Landmines

Don’t ignore requests for accommodation Whose responsibility? What constitutes a request? What’s reasonable?

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Call for help when:

An employee requests an accommodation or “special treatment”

An employee mentions sexual or other “harassment” An employee complains of unfair treatment You need to discipline an employee who has filed a

complaint An employee needs a medical or personal leave of

absence Any time you find yourself in unfamiliar territory

Managing Employees/Avoiding Landmines

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Managing Employees/Avoiding Landmines

Assume every e-mail you write to or about an employee may be seen by

a jury someday.

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Managing Employees/Avoiding Landmines

“No good deed goes unpunished.”

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TERMINATION:The Rationale

At-Will Doctrine – Discrimination/Retaliation Exception

Typical Reasons for Termination Desire1) Poor work quality

- unable to perform job- motivational issue

2) Misconduct- almost always a motivational issue

Fairness & Consistency (in policy and application) Matter

Thoroughly Investigate Facts

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TERMINATION: Termination Worthy?

Illegal Bias Risk Analysis: Is employee in a “protected class?” Is replacement in a protected class? Has employee raised prior discrimination,

harassment, or compliance complaint? Is termination related in any way to protected class or

prior complaint? Considering termination because employee is a

“complainer” or “disruptive?” Is employee long-term?

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TERMINATION:Termination Worthy?

Supervisor’s Responsibilities: Has policy/expectation been consistently applied? Has employee been progressively disciplined/given

ample opportunity to address issue? Has issue, prior warnings and opportunities to

improve been documented? Are performance evaluations honest and supportive of

termination? Is this a “Lengthy Tolerance,” then “Quick-Strike”

scenario?

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TERMINATION:Termination Worthy?

Supervisor’s Responsibilities: Options in lieu of discharge? Mislabeled “RIF”? Grey Book requirements? Comfortable explaining discharge to Dean, President,

Board and/or jury?

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TERMINATION:Delivering the Message

Very emotional for employee Delivery influences decision to sue Face-to-face private meeting is best Two supervisors (or supervisor & HR)

present

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TERMINATION:Delivering the Message

Unequivocally state termination Calm, courteous, respectful, business tone Keep meeting short Give employee chance to speak but do not debate Be prepared to discuss COBRA rights and final

paycheck or set up appointment with HR Discuss return of Emory property and collection of

personal property Avoid security escorts to car