employment law essentialstcfv.org/wp-content/uploads/2019/02/employment-law... · 2019. 2. 20. ·...
TRANSCRIPT
TOPICS
THE AT WILL DOCTRINE - What is it?
EXCEPTIONS to AT WILL - Focus on Discrimination / Harassment
BEST PRACTICES -Hiring / Documenting / Firing
THE AT WILL EMPLOYMENT DOCTRINE
o"AT-WILL" EMPLOYEES
oMAY BE TERMINATEDo For Good Reasono For Bad Reasono For No Reasono But….
…Not for an Illegal ReasonSuch As:
oFiling a workers’ comp claim
oReporting safety violations
oAsking questions about overtime
oRefusal to commit a crime
UNLAWFUL DISCRIMINATION
oRace / National Origin / U.S. CitizenshipoSex
o Gendero Pregnancyo Sexual Orientation?o Gender Identity?
oAge (40 and over)oReligion (+ accommodation)oDisability (+ accommodation)oRetaliation for Claiming Unlawful Discrimination / Unlawful Harassment
DISCRIMINATION IS PROHIBITEDWITH REGARD TO:
oHiringoCompensation & BenefitsoConditions & PrivilegesoFiring / Constructive Discharge
MEDICAL ISSUES?
WORKERS’ COMP
FMLA
ADA
Family and Medical Leave Act-Must have 50 employees with 75 mile radius
-Employee must have worked 1250 hours within last 12 months
-Up to 12 weeks unpaid leave with job restoration
• Serious illness of employee• Serious illness of certain family members• Pregnancy / birth, placement, or adoption of child• Military Family: medical leave / exigent circumstances
Family and Medical Leave Act
• May be full-time, part-time, or intermittent• Company has 5 days to send written notice • Alert HR at once of any possibility that FMLA may apply, such
as…Absence for more than 3 days in a row for medical conditionSporadic but repeated absences for same medical condition
• Individual Liability for violations
DISABILITY DISCRIMINATION
EMPLOYEE IS PROTECTED …
oActual disability: A mental or physical impairment that substantially limits a major life activity
oA record or history of such impairment oAssociated with someone disabledoRegarded as disabled
DISABILITY DISCRIMINATION
oMust be qualified to perform essential job functions.
oEmployer must:o not discriminate
o make reasonable accommodation so that they can perform the essential job functions, unless it causes an undue hardship
IF IT LOOKS, ACTS, or SMELLS MEDICAL…ALWAYS CALL HR
oI need an accommodation for my medical condition or my religious belief.
oI have another migraine. I’ll be in late again.oMy mistakes are caused by my new medication.oI’m not depressed - just tired.oYou think I’m an alcoholic?
UNLAWFUL HARASSMENT
IS A FORM OF DISCRIMINATION BASED ON….
Age (40 and over)Race / Color
National Origin / US CitizenshipDisability / Genetic Info
ReligionGender
QUID PRO QUO Sexual Harassment
UNWELCOME SEXUAL ADVANCES +
EMPLOYMENT ACTION BASED ON SUBMISSION or REJECTION
HOSTILE WORKING ENVIRONMENT UNLAWFUL HARASSMENT
• UNWELCOME VERBAL OR PHYSICAL CONDUCT based on the employee’s race, gender, age, etc., that:
Unreasonably interferes withan individual’s workperformance,
OR
Creates an intimidating, hostile
or offensive work environment
HOSTILE WORKING ENVIRONMENT UNLAWFUL HARASSMENT
• The unwelcome conduct is either…
SEVEREor
PERVASIVE
What does Unwelcome Conduct Mean?
• Complaining employee did not initiate it and regards it as offensive• Harassment is in the eye of the beholder• Issue is whether the conduct was unwelcome and offensive to the
victim, not the alleged harasser’s intent
TIME / PLACE
HARASSMENT PROHIBITED:oAT WORKoAWAY FROM WORKoON DUTYoOFF DUTYoBY PHONE, TEXT, EMAIL, ON FACEBOOK, ETC
RECIPE FOR A HOSTILE ENVIRONMENToDegrading verbal abuse
oGraphic comments
oOffensive objects, cartoons, pictures
oExplicit or offensive jokes (verbal or written)
o Innuendos, gestures
oNicknames (Gramps; Honey; Preacher)
oEmail, texts, social media posts
oAny offensive touching can create personal liability for civil / criminal assault
IS EVERYTHING HARASSMENT?
CURSE WORDS YELLINGNAME CALLING PAT ON THE BACKASKING FOR A DATEDISAGREEMENTS PERSONALITY DISPUTESA MANAGER WHO IS GRUFF or CRITICAL OF EVERYONE
WHERE IS THE LEGAL LINE?
• WOULD A REASONABLE PERSON find the conduct created a hostile environment based on race, sex, age, religion, national origin, disability…?
____________/____________
WHEN CAN LIABILITYEXTEND TO THE EMPLOYER?
CO-WORKERs VENDORs CLIENTs
If once the employer knew or should have known, it failed to investigate and take prompt remedial action
WHAT TO DO IF I HAVE A COMPLAINT?DON’T DELAY… REPORT HARASSMENT TO ONE OF THE FOLLOWING:
• Human Resources• An Officer of the Company
Don’t assume the Company is aware of your concern.
WHAT TO DO WHEN RECEIVING A COMPLAINT?
You must be objectiveYou can’t guarantee confidentialityYou may explain that Company policy
prohibits retaliation
WHAT DO I DO NEXT?
RUN To HR… even if…….its not an employee on your team….the employee doesn’t want to complain
….if the employee begs you not to report it
….you just hear a rumor
WHAT ARE THE COMMON MISTAKES?
oSuggesting they just talk to the harasseroInvestigating if you’re the accusedoAttempting to resolve it yourselfoNot reporting it ASAPoGossipingoTelling the accused
Catherine MacKinnon wrote the seminal 1979 book, Sexual Harassment of Working Women
“I’ve seen leaders of companies go in front of their employees and say: ‘Listen, we’re here to work, not to cater to your social and sexual needs. If I hear you’re doing that, you’re out of here.’ It’s pretty strong, but harassment doesn’t happen in those places.”
BEST PRACTICESKEY INTERVIEWING RULES
#1. If Not Job-Related, Don’t Ask!
EXAMPLES:
o Are you married? o Do you have young children?o How old are you? o What year did you finish high school?o Have you ever been injured on the job?o Have you ever been arrested?
#2. Be Consistent
ORAL WARNINGS? THERE IS NO SUCH THING!
By the 3rd Oral Warning… they either
1. DON’T GET IT
OR
2. DON’T CARE
JURIES BELIEVE: IF POOR PERFORMANCE WAS NOT WORTH WRITING UP…
IT WAS NOT WORTH FIRING FOR IT!
CALL HR • Before you lose patience.
(Before the 3rd time you verbally address the concern with the employee.)
• If your gut instinct tells you that something is out of sync.
• When your normal efforts to train / counsel / correct aren’t working.
• NEVER discourage any Employee from contacting HR.
GO DOCUMENT YOURSELF!
oWe’ve been over this before so …oTo ensure we’re on the same page…oPlease send me an Email / Text that…oBullet points my concern(s) & what needs to change…oBecause the next step will be a write up.
SAVE THE EMAIL / TEXT!
BE HONEST IN REVIEWS
85% of Employees MEET EXPECTATIONS10% of Employees EXCEED EXPECTATIONS5% of Employees FAIL TO MEET EXPECTATIONS
How can you justify firing someone whom you rated as meeting all your expectations in the last review(s)?
INITIAL PERIOD
Your Window of Opportunity…
If they stink the first 30/60/90 days (when they are trying to impress you),
then they’ll really stink the next.
KEY FIRING RULESRemember:
Surprised EmployeesSue!
Be Considerate!
FIRING SCRIPToGet Right to the Point.
o Do say: “You are being terminated effective today.”o Don’t say: “This was a difficult decision.”
o If Stating Why…o Be 100% Accurate AND 100% Complete or Be VERY General…
o “I’ve lost confidence in you.”o “This just isn’t working out.”o “ I haven’t seen the necessary degree of change that we’ve discussed.”
oAfter your 2 or 3 sentences, turn it over to HR. (Coaching at the termination meeting is pointless.)
oListen Politely - DO NOT SHUT THEM OFF or ARGUE!!!
BE CONSISTENT
oReason(s) given upon terminationoReason(s) expressed in the HR paperworkoReason(s) given in claim for unemploymentoReason(s) given to EEOCoReason(s) given to Judge and Jury
TOP 10 TIPS
10. FOLLOW THE HANDBOOK!
9. DOCUMENT EARLY AND OFTEN
8. ENFORCE THE HARASSMENT POLICY!
TOP 10 TIPS7. BE CONSISTENT OR PREPARE TO
DEFEND YOUR EXCEPTIONS!
6. IF IT’S NOT JOB RELATED, DON’T ASK!
5. YOU ARE MANAGEMENT 24/7.
4. HONESTY IS THE BEST POLICY (EXCEPT IN CASES OF THEFT)!
TOP 10 TIPS
3. IF ASKED FOR REFERENCE or RECOMMENDATION - GIVE NOTHING BUT NAME, POSITION, DATES of EMPLOYMENT.
EVEN POSITIVE REFERENCES CAN BACKFIRE.
(The caller may be the ex-employee’s friend who is recording the call!)
2. DOCUMENT! DOCUMENT! DOCUMENT!
THE NO. 1 WAY TO AVOID UNNECESSARY LABOR PAIN!
Trust your instincts. If something feels “off” or you sense things won’t end well…
SEEK ADVICE FROM HR - IMMEDIATELY
