Employment Law

A Brief Overview for Managers and Supervisors

Today’s Topics

• Employee Handbooks

• Americans With Disabilities Act

• Family and Medical Leave Act

• Title VII – Discrimination

• Unemployment Compensation

• Fair Credit Reporting Act

Not Covered Today

• OSHA• Wage and Hour Law• Wrongful Termination• Employee Evaluation and Documentation• Drug and Alcohol Testing• Independent Contractors• Unions• Polygraph Testing• Employee Monitoring• Workers’ Compensation

Employee Handbooks

• Not a contract

• Establishes Appropriate Expectations

• Creates a Sense of Fairness

• Covers All Necessary Topics

• Not a Policies and Procedures Manual

• Review and Update Regularly

Americans With Disabilities Act

Americans With Disabilities Act

• www.eeoc.gov for information on ADA

• Covers employers with 20 or more employees in the current or prior calendar year – including part-time employees

• Protects “qualified individuals with disabilities”

Person With A Disability

• Has a physical or mental impairment that substantially limits one or more major life activities; or

• Has a record of being substantially limited; or

• Is regarded as being substantially limited

Major Life Activities

Walking Speaking Breathing

Manual Tasks Seeing Hearing

Learning Self Care Working

Sitting Standing Lifting

Reading Obesity ?

Record of Impairment

• Person with a history of a disability; or

• Disability is either controlled, cured, or in remission

Regarded As Impaired

• Person with a minor impairment is treated as if the impairment if a major one; or

• Person has an impairment that is a problem because of the perception of others; or

• Person has no impairment, but the employer believes he or she does

Qualified for the Job

• Qualifies for the position by education, training, experience, etc.

• Is able to perform the essential functions of the job

• Accurate and complete job descriptions are of critical importance

Not Covered By ADA

• Illegal drug use, if current, but possibly protected if in past

• Gay and lesbian workers

• Sexual and behavioral disorders

• Physical and psychological characteristics such as poor judgment, anger control or cultural or economic disadvantages

Reasonable Accommodation

• Required at every step of the employment process from hiring to promotion, including access to benefits

• Employer not required to suffer undue hardship, such as significant expense or difficulty

• Employee does not get to choose the accommodation

Reasonable Accommodation

• Improve accessibility

• Provide aids

• Restructure job to exclude non-essential functions

• Modify schedule

• Call the Job Accommodation Network at 800-526-7234 or www.jan.wvu.edu

Medical Information

• No medical questions during application process

• No medical exams until after a conditional offer of employment – must be required of all applicants

• No medical exams of employees unless job-related and necessary

Family and Medical Leave Act

Family and Medical Leave Act

• Employer is covered if it has 50 employees (including full-time, part-time and employees on leave) within a 75 mile radius

• Employee is covered if she has worked for the employer for 12 months and has worked at least 1250 hours in the 12 months prior to the leave

Birth, Adoption or Foster Care

• 12 weeks of unpaid leave – total of 12 weeks for both parents if they have the same employer

• Must be taken within 12 months of the birth, adoption or placement

• Expectant mother may take leave for prenatal care• Leave can begin before adoption or foster care for

associated activities

Family Health Problem

• 12 weeks of unpaid leave within a 12 month period to care for a spouse, son, daughter, or parent with a serious health condition

• A serious health condition is one that requires inpatient care; requires continuing treatment and restricts normal activities for more than three days; or requires continuing care for a chronic, long-term or permanent condition

Employee Health Problem

• 12 weeks of unpaid leave in a 12 month period for a serious health condition that makes the employee unable to perform the job

• A serious health condition is one that requires inpatient care; requires continuing treatment and restricts normal activities for more than three days; or requires continuing care for a chronic, long-term or permanent condition

Solutions

• Intermittent leave

• Reduced hours

• Work from home

• Full leave

• Temporary transfer to another job

• Maintain confidentiality

Substituting Paid Leave

• FMLA leave is unpaid• Employer or employee can substitute

accrued paid time such as vacation, personal, family, or sick leave for unpaid FMLA leave

• Employee can only substitute paid leave if the paid leave is covered under existing policies

Advance Notice

• If the leave is foreseeable, the employee must give 30 days notice or notify as soon in advance as practicable

• If the leave is unforeseeable, the employee can notify you by phone, fax or e-mail of the need for FMLA leave

• If the leave is for planned medical treatment, the employer can require scheduling for minimum disruption

Certification From Physician

• The date the serious medical condition began

• The length of time the condition is likely to continue

• Diagnosis of the condition

• Treatment Prescribed

• Whether inpatient treatment is required

Certification From Physician

• Clarification of whether the employee can’t perform work of any kind or can’t perform the essential functions of the job

• Clarification of need for intermittent leave• Second or third medical opinions can be

obtained at employer expense• Recertification permitted at reasonable

intervals

Health Insurance

• Must continue coverage on the same basis

• Employer can get reimbursement of health insurance costs if the employee does not return at the end of leave, unless the reason is a continuation or recurrence of the condition or there are other circumstances beyond the employee’s control

Return to Work

• Employee usually has the right to return to his original or similar job with equivalent pay, benefits and other terms of employment

• Lay-off exception

• Highly paid employee exception

• Can require certification of fitness to work

Be Careful

• Interplay with ADA, Title VII, and Pregnancy Discrimination Act

• See www.eeoc.gov for more information• FMLA is enforced by the Department of

Labor• See www.dol.gov• DON’T retaliate against employees who

take FMLA leave

Title VII Discrimination

Other Discrimination Statutes

• ADEA – Age Discrimination in Employment Act• Pregnancy Discrimination Act• Immigration Reform and Control Act• Equal Pay Act• ADA• National Labor Relation Act• Delaware Employment Statutes

Title VII of the Civil Rights Act

• Applies to businesses that employ 15 or more people –either full or part-time

• Prohibits discrimination based on race, color, religion, gender, or national origin

• Prohibits sexual harassment• Prohibits discrimination in hiring, promotion,

dismissal, pay, benefits, work assignments, leave or any other aspect of the employment relationship

Types of Discrimination

• Direct Discrimination

• Indirect Discrimination – apparently neutral policies that disproportionately impact protected groups and do not reflect a valid business reason

• Bona Fide Occupational Qualification – discrimination permitted if BFOQ exists

Enforcement

• EEOC and Delaware Department of Labor share enforcement

• Investigation

• Cause determination

• Conciliation – confidential proceeding

• Right to sue letter

• Direct enforcement by EEOC

Remedies

• Order to hire, rehire, reassign, or promote the employee

• Compensate the employee for all lost pay and benefits

• Pay damages for emotional distress, mental anguish or inconvenience

• Change policies • Pay punitive damages if malicious or reckless• Pay employee’s legal fees

Retaliation

• Employer may not retaliate against an employee for opposing discrimination, filing a complaint, or cooperating with an investigation of a complaint

• Legal defense against retaliation claim is that the adverse job action was taken for a legitimate business reason unrelated to the discrimination complaint

Sexual Harassment

• Sexual harassment is a form of gender discrimination

• Occurs when unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature creates a hostile or abusive work environment

• No need to show physical or psychological injury• The same rules apply to harassment of other

protected groups

Types of Harassment

• Unwelcome advances or requests for sexual favors in exchange for job benefits or continued employment

• Posting sexually explicit materials

• Telling demeaning jokes or making derogatory comments

• Can be any gender combination

Compliance

• Employer is responsible for all harassment it knew or should have known was being committed, including those by vendors or customers

• Legal duty to undertake necessary steps to prevent or stop sexual harassment

• Have a policy and train employees• Have a confidential avenue for complaints• Investigate all complaints promptly

Compliance

• If an employer has a policy and handles complaints in good faith, the employee must take advantage of the internal complaint system or she may lose the right to sue

• Retaliation is illegal

Model Policy

• State clearly that harassment will not be tolerated

• Provide a safe avenue for complaints – and then provide a back-up

• Distribute the policy

• Train employees, supervisors and managers

• Enforce the policy

Unemployment Compensation

Unemployment Compensation

• Meant to help workers who are unemployed through no fault of their own

• Liberally construed in favor of the employee

• Doesn’t cover resignation

• Doesn’t cover termination for cause

• Does cover lay-offs

Fair Credit Reporting Act

Fair Credit Reporting Act

• Strict rules on ordering and use of consumer reports, including credit reports, background checks, and other information from a Credit Reporting Agency (CRA)

• CRA’s include credit bureaus and any other third party you pay to gather information such as driving records, criminal reports or interviews with former employers or associates

• Doesn’t apply if employer gathers information

Requirements of FCRA

• Before obtaining a consumer report, the employer must notify the applicant or employee in writing and get written permission to proceed

• Before adverse action can be taken based on information in the report, employer must provide a written preadverse decision disclosure that includes publications prepared by the Federal Trade Commission

The End

Requirements of FCRA

• After employer takes adverse action, it must notify the person orally, in writing, by fax, or by e-mail

• Notice must include the name address and phone number of the CRA

• State that the CRA did not make the adverse decision

• State that the person has the right to dispute the accuracy or completeness of the information

• State that the person has the right to obtain a free report within 60 days