employment law update may 13, 2011 kimberly vanover riley, esq. montgomery, rennie & jonson co.,...
TRANSCRIPT
Employment Law UpdateMay 13, 2011
Kimberly Vanover Riley, Esq. Montgomery, Rennie & Jonson Co., L.P.A.Cleveland(440)[email protected]
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Agenda for Today
Department of Labor Update Wage and Hour law Military Leave Nursing Mothers
Ethical Role of Court PersonnelThe Myth of At-Will Employment & Updates
to Workplace Discrimination, ADA, Harassment & Retaliation Law
Social Media & The Public Sector
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The DOL Busy Season
Wage and Hour InitiativesFMLA ChangesNursing Mother Laws
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Wage and Hour Law
Big changes coming
DOL recently hired 350 new investigators—no one knew why.
Now we do: Mandatory employer compliance plans will soon be
required. DOL will require most employers to prepare and adopt
compliance plans aimed at ensuring they do not violate wage, job safety and other employment laws.
Decisions will need to be documented and shared with their workers and the government.
Deputy Labor Secretary Seth Harris said many specifics of what employers will be required to do “had yet to be worked out.” Proposed rules are still being drafted, and businesses will
have a chance to respond before any final rules are issued. The first wave of these regulations is expected in April
2011.
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“Good Jobs for Everyone”
Part of the DOL’s vision statement is “good jobs for everyone.” It includes its definition of a “good job.” This includes, among other things: Jobs that increase workers’ incomes and narrow wage
and income inequality; Jobs that assure works are paid their wages and
overtime; Jobs that provide workplace flexibility for family and
personal care-giving; Jobs that assure workers have a voice in the
workplace.
http://www.dol.gov/_sec/stratplan/2010/vision-2010.pdf
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DOL Regulatory Agenda Narrative
“only limited resources to protect America’s workers”
“employers do not have a culture of compliance”
“many will not change their behavior, even if provided with the best information”
“some are complacent, depend upon luck to avoid violations”
others refuse to comply because they compare the costs of compliance against the odds of being caught
The “catch me if you can” model has become a problem in America’s workplace.
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DOL Plan to Address this Problem:
Employers will be forced to “take responsibility to find and fix problems rather than wait for a Labor Dept. investigator to inspect, discover the problems, and enforce the law.” How?
“Leveraging” their limited resources: Plan/Prevent/Protect.
“Compliance will be non-negotiable under the Plan/Prevent/Protect” system.”
http://www.dol.gov/regulations/2010RegNarrative.htm
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Plan
Dept. will propose a requirement that employers create a plan to identify/fix risks of violations.
Employer will provide employees with opportunities to participate in the creation of plans.
Plans will be made available to employees so they can fully understand and help monitor them.
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Prevent
Department will propose a requirement that employers “thoroughly and completely implement the plan in a manner that prevents legal violations.”
It “cannot [be] draft[ed] . . . and then put . . . on a shelf.”
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Protect
Dept. will propose a requirement that the employer ensures the plan’s objectives are met on a regular basis.
Employers who fail to follow these steps will be out of compliance and subject to remedial action.
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What does this mean for W & H specifically?
These initiatives apply to a broad range of employment laws, including workplace safety (OSHA, MSHA), but also the Wage & Hour Division.
The particular P/P/P initiative for the WHD is called “Right to Know”
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Right to Know
The WHD will publish a NPRM to FLSA regs, requiring: Communication to Employees
How their pay is calculated Who is exempt / excluded from FLSA entitlements (OT,
minimum wage) Why (e.g., exempt, personal staff, volunteer, independent
contractor) Openness and Transparency
Portions of this communication may need to be provided with each paycheck. “Wage statements”
Summarizes hours worked/wage computation. Maintenance
Keep this information on file Why? So it may be quickly provided to WHD enforcement
personnel.
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Right to Know
Target Date: April 2011
See http://www.dol.gov/whd/regs/unifiedagenda/fall2010/1235-AA04.htm
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Bridge to Justice
But how will 350 DOL investigators enforce all these new initiatives?
The Bridge to Justice is an “unprecedented collaboration” between the WHD and ABA
Workers who cannot get immediate DOL help will be referred to W & H attorneys through the ABA’s Lawyer Referral and Information Service.
http://www.dol.gov/whd/resources/ABAReferralPolicy.htm
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What will the Bridge to Justice Look like?
When e/ees call DOL for help, they will get help from a DOL employee or referred to a toll-free number.
The number will provide contact information for W & H attorneys in their area.
If WHD investigation finds violations, it can: Prosecute; OR Supply the employee with:
Its list of violation(s) and back wages calculations The phone number for the attorney referral service
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We Can Help
2010 Campaign designed to reach “high risk” industries Agriculture Construction Janitorial Hotel/Motel Food Service Home Health Care
Includes booklets, posters, and user-friendly website
Includes spreadsheet for tracking hours worked:
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http://www.dol.gov/whd/FLSAEmployeeCard/calendarR5Web.pdf
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http://www.dol.gov/whd/FLSAEmployeeCard/calendarR5Web.pdf
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http://www.dol.gov/whd/FLSAEmployeeCard/calendarR5Web.pdf
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http://www.dol.gov/whd/FLSAEmployeeCard/calendarR5Web.pdf
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http://www.dol.gov/whd/FLSAEmployeeCard/calendarR5Web.pdf
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Bottom Line
Ignoring wage and hour law will soon no longer be an option.
Merely assuming you are in compliance will no longer be enough.
You will have an affirmative obligation under the law to get into compliance, document your analysis, and share it with your employees.
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Is anyone feeling the need for a little review?
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General Rule
EVERYONE IS PRESUMPTIVELY NON-EXEMPT i.e., entitled to minimum wage and presumptively entitled to 1.5 OT
Unless excepted or exempt or Unless proactively changed to comp time or
modified version of OT
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Minimum Wage
Federal: $7.25Ohio: $7.40
Every September 30, it is increased as of the first day of the following January by the rate of inflation for the 12-month period prior to that September, rounded to the nearest five cents.
The annual update to the Ohio minimum wage is available on the Web site of the Ohio Department of Commerce, Division of Labor & Worker Safety.
http://www.com.ohio.gov/laws
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Overtime and Compensatory Time
OT and Comp Time (1.5) vs. Flex/Bonus Time (1.0)
Comp time State and local government Ratio – 1.5 hours off for every 1 hour of overtime Available only when follow prescribed notice / rules
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Compensatory Time – Requirements
E/ees notified: comp time off in lieu of overtime
May not accrue more than 480 / 240 hours
If accrue more, entitled to OT
Afforded opportunity to use banked comp time w/in reasonable period, and when requested—so long as notice is reasonable
Termination – must be paid for unused but earned comp time
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Excepted vs. Exempt
Excepted: not subject to the coverage of the FLSA in any respect
independent contractors elected officials and their personal staff policy-making political appointees and legal
advisors bona fide volunteers
Exempt: subject to certain aspects of the FLSA, such as its recordkeeping requirements.
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Exceptions
Volunteers—not covered by FLSA However, make sure your volunteers truly are
volunteers: No pay (any kind of compensation) No promise / (reasonable) expectation of pay
Independent Contractors—not covered by FLSA Again, ensure they truly meet this status (IRS 20
factor test)
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Exceptions, cont.
Elected Officials, Personal Staff Members & Policymakers serving elected officials Elected officials (e.g., Judge, elected Clerk) Personal staff of elected officials Appointees of elected officials to serve on a
policymaking level Immediate advisors to elected official re:
constitutional/legal powers of the office
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Excepted employees=No FLSA obligations
Note—Ohio exceptions are narrower.May still have obligations to Ohio employees
that do not exist under federal law.
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The “White Collar” Exemptions
The first of the 13(a) exemptions is, by far, the largest. Section 13(a)(1) provides the “White Collar” exemptions.
ExecutiveAdministrativeProfessional
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The “White Collar” Exemptions
2 Requirements Duties—must entail a certain amount of
exempt work.
Salary—must be paid: In a specified form (salary, or sometimes fee, instead
of hourly) In a specified minimum amount
Note: Significantly changed in 2004.
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Executive
Salary: Minimum $455/week. Duties
Primary duty must be managing the enterprise in which the employee is employed, or of a customarily recognized department or subdivision. Won’t lose exemption of jumping in to help subordinates
(e.g., fast food manager) Directing 2+ FT employees’ work– Customarily
and regularly directs the work of two or more employees or full-time equivalents. Actual authority or particular weight in hiring/firing
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Administrative
Salary= $455.00/week OK to receive fee instead of salary
Duties Primarily performs office or non-manual work
directly related to the management and general business operations.
Exercises discretion and independent judgment in matters of significance New section on the use of manuals
Regulations provide examples of exempt and non-exempt
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Cautions
What does “significant” mean? i.e., “matters of significance,” “significant
matters,” “matters that have significant financial impact”
Factors Authority to formulate/interpret policies Authority to carry out major assignments Duties affect operations to a substantial degree Authority to commit money Authority to waive/deviate from policies
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Typical Exempt Status under Administrative Test:
Typically Exempt Insurance claims adjusters Financial services
employees Team Leaders Executive/admin assistants HR Managers Management Consultants Purchasing Agents Buyers
Typically Non-Exempt Financial services sales
employees Personnel screeners Comparison shoppers Ordinary Inspection work Graders/Examiners Public Sector
investigators/inspectors
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Professional
Salary $455.00/week (Generally n/a to licensed lawyers,
some teachers, and certain medical professions) Two different duties tests:
Learned Professional Creative Professional
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Learned Professional, cont.
Primary duty - work requiring knowledge of advanced type (predominantly
intellectual; requires consistent discretion/independent judgment)
in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. 4-year degree or experiential equivalent Specific skilled groups discussed in new regs (e.g.,
medical technologists, dental hygienists, chefs, athletic trainers, and funeral directors).
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Computer Employee Exemption
Salary= $455.00/week or $27.63/hour. Duties:
Working as computer system analysts, software engineers, or programmers;
Primary duties include application of analysis techniques and procedures NOT everyone who works with computers.
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To recap
If your employees do not meet one of these exceptions or exemptions, they the default is 1.5 OT.
If your employees DO meet one of these exemptions, they must perpetually maintain BOTH Duties Salary
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Docking exempt e/ees’
salariescan void their
exempt status.
Exempt Employee Docking Rules & Safe Harbor
Permissible exempt salary deduction: full day absences (mostly N/A in public sector—see next
slide) for qualifying reason: Unpaid suspensions for violating serious workplace conduct
rules (e.g., sexual harassment, drug use) Major safety violations Illness/disability with other compensation Offset jury duty, witness fees, military pay Proportionate share of first/last weeks FMLA
Full week absences for violating any other conduct rule
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Public sector exception to salary basis/docking
Public sector employee who otherwise meets salary basis test but whose pay is, by law, subject to unpaid
absence for personal reasons, illness, or injury in partial-day increments
Won’t lose exemption if Employer denies request for partial day paid leave Accrued leave has been exhausted Employee chooses partial day unpaid leave
Budget-required furloughs won’t disrupt salary basis
Bottom line: Salary basis diluted in public sector, but review reg carefully: 29 CFR 541.710; still advisable to follow default
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Safe Harbor
Safety net: minimizes impact of improper deductions from an exempt employee’s salary.
Brief period of time to correct improper deductions without jeopardizing exemption.
Requires: Isolated/inadvertent deduction Clearly communicated policy prohibiting
improper deduction Complaint procedure Prompt reimbursement Good faith commitment to future compliance
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What’s an hour “worked”?
Working—On duty time furthering e/er goals Nearly all training
Must be voluntary and inapplicable to job to be unpaid.
Brief planned downtime (coffee breaks, lactation breaks)
All unplanned downtime… BEWARE after-hours email, smartphone,
voicemails Consider a policy prohibiting (or limiting) such
work without prior written consent.
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What’s NOT an hour “worked”?
SickVacationPersonal leave(Most) meal breaks
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What’s in the gray zone of hours “worked”?
Other meal breaks Control and length of time affect compensability of the
timeTravel
Work pulling the regulations every time—it’s complicated
On-call The more control you exert, the more likely it is
compensable
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Ways to make time off-duty
Allow e/ees to leave site for meal breaks/on-call time
Provide at least 30 minutes; 60 betterGive reasonable time to report when on callSchedule/publicize call-in periodsMinimize call backsDon’t require call-ins to wear uniforms (or
provide them at the work site)Encourage personal activity during on-call
timeConsider whether to discipline on-call
violationsMemorialize on-call policy in writing
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What about Ohio law?
R.C. Chapter 4111.Ohio’s Wage and Hour Bureau has
significantly more authority than before Can now issues subpoenas, compel attendance of
witnesses and production of papers, books, accounts, payrolls, documents, records, and testimony in investigating
No personal staff or policymaker exception under OMFWSA
Probably no comparable computer employee exception, either Consider whether IT people can meet another
exemption.
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Retaliation
Employees are prohibited under both the FLSA and OMFWSA from engaging in retaliation.
This just in: Supreme Court decision from 3/22/11: Oral, as well as written, complaints of FLSA violations are now enough to state a retaliation claim. Kasten v. Saint-Gobain Perf. Plastics Corp., No. 09-834
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Places for good online help
www.dol.gov FLSA and Regs Opinion letters Fact sheets Much, much helpful stuff – very user friendly
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Recap: What to do
Evaluate exempt / non-exempt classifications, paying special attention to:
salary levels of any exempt employees that fall below the minimum and that might not be “true” salaries;
classifications of non-manual workers earning $100,000.00/year or more; and
whether exempt employees’ job duties meet the exempt requirements
Audit job descriptions Too broad? Too narrow?
Audit process whereby e/ees record time—accurate? No volunteer time.
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Recap, cont.
Are you over/underpaying OT Are you underutilizing various types of
compensation (flex, bonus, comp) Evaluate pay / docking practices to ensure
compliance. Are you missing exemptions?
Prepare “Safe Harbor” postings / memo / handbook policy provision.
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After all that is done:
After all that is done, keep your eyes out for the April 2011 “Right to Know” regulations. You can sign up to be alerted via e-mail at
http://www.dol.gov/dol/email.htm
Confer with counsel to prepare and distribute your compliance plan.
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FMLA Changes57
New FMLA Military Provisions
Two kinds: Qualifying Exigency Military Caregiver
New since January 2008
Expanded further in October 2009
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New FMLA—Caregiver Leave
26 weeks of leave for e/ees caring for “injured service member” Injured service member may be
Spouse Child Parent Nearest blood relative
NDAA Amendment (10/2009), adds In addition to people in active duty, e/ees may also take
leave for veterans who are treated for service-related injuries
Treatment must occur within 5 years of service Cannot use calendar-year method for calculating leave.
Period begins upon onset of leave. Injury may include aggravation of preexisting injury
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New FMLA—Medical Certification
Injured service member = any person injured in line of duty on active duty
Rendering service member medically unfit to perform duties of his/her office, grade, rank or rating
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New FMLA—26 Workweeks of Leave
May take more than one period
Not more than 26 weeks in single 12 month period
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New FMLA—Qualifying Exigency Leave
12 weeks of leave for Any qualifying exigency arising from
spouse, son, daughter or parent of employee who is deployed or called to active duty in a foreign country
Pre-NDAA Amendments required the active duty be in support of contingency operation for the National Guard or Reserves. This requirement = eliminated.
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New FMLA—Qualifying Exigency
(1) short notice (2) events/activities(3) childcare/school(4) financial/legal(5) counseling(6) rest/recuperation
(7) post-deployment activities
(8) additional activities
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New FMLA—No Overlapping FMLA/Military Leaves
Leave that qualifies as both FMLA leave and service member care leave cannot be designated and counted as both.
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New FMLA—Husband and Wife Provisions for Three Kinds of Leave
12 week shared aggregate for Birth/placement of a child, care of a newborn Care of a parent with a SHC
26 week shared aggregate for care to servicemembers with serious injuries or illnesses
Spouses get to determine how to allocate the leave between them
Remaining balance of leave available for other qualifying events
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New FMLA Forms
All available on DOL’s website, as Appendices to the new FMLA Regulations Employee Rights and Responsibilities (to be
posted as part of Notice Req.)(Appx. C) Notice of Eligibility (includes e/ee Rts &
Resp.) (Appx. D) Certification of Health Care Provider for
Family Member’s Serious Health Condition (Appx. B)
Certification of HCP for E/ee’s SHC (Appx. B)
Designation Notice (Appx. E) Military Leave Forms (Appx. G & H)
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Veteran/Military Discrimination in Ohio
In addition to USERRA, FMLA, and R.C. 4112.02, a new Ohio law affects employees in the armed service.
Eff. 7/2/10, most Ohio employers with must provide leave to military spouses or parents when family member is called to active duty or injured or hospitalized while serving on active duty. (R.C. Chapter 5906)
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A Few (but not all) RC 5906 Specifics:
Similar eligibility as FMLA: 50 e/ees, 1 year of service, 1,250 hours in prev. year Note: NO 75-mile radius requirement for those 50 employees.
Narrower leave: Lesser of 10 work days or 80 work hours, 1x/per year
Employee can’t have any other available leave, except sick leave or disability.
Employers must continue benefits at the regular cost. After leave, employers must restore employee to same or
equivalent job. Retaliation is prohibited. Employers cannot require employees to waive their leave
rights. Employees can sue for injunctive relief and damages to
enforce rights.
FMLA leave for same-sex/common law co-parents, and others—DOL Admin. Interpret.
No. 2010-3
Easier for adult caregivers of non-biological sons/daughters to take FMLA leave. FMLA has always provided 12 workweeks of unpaid leave for
birth/placement of a child; to bond with a newborn or newly placed child, or to care for a child with a serious health condition.
The definition of “child” has always included both biological and adopted children, foster children, stepchildren, legal wards, or any children of a person standing in loco parentis.
DOL has clarified that any employee with day-to-day responsibility for caring for a child is entitled to leave, regardless of child’s lack of biological or legal relationship
Biggest impact: same-sex and common law co-parentsOthers: aunts, uncles, grandparents, stepparents
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New DOL Nursing Mother Regs
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Lactation Breaks
The Patient Protection and Affordable Care Act amended the FLSA to require employers to provide reasonable lactation breaks to non-exempt nursing mothers to express milk. Small employers (<50) might obtain a waiver if they
can demonstrate undue burden, but this will be difficult for most.
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Conditions of Lactation Breaks
Need not be paid, but if employer provides other paid breaks, these must be paid. (Usually > 20 minutes must be counted as hours worked/paid.)
2-3 breaks of 15-20 minutes per 8 hoursMust be provided for 1st year of child’s lifeMust be in a place that is NOT a bathroom,
shielded from view and co-worker/public intrusion.
Need not be exclusively dedicated to nursing mothers, but must be available.
Must provide ability to safely store milk
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Where can I read more?
The DOL issued fact sheet #73 which provides further guidance: http://www.Dol.Gov/whd/regs/compliance/whdfs73.Htm.
It accepted public comment on these interpretations until recently, and final regulations are expected later this year.
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The Ethical Role of Court Personnel
Legal Advice-vs-Legal Information
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Important Note
Ohio has not adopted guidelines of permissible/impermissible conduct for court personnel; rather, we primarily work from the Ohio Code of Judicial Conduct, which sets forth a number of obligations for court employees. Ohio Code of Judicial Conduct Rule 2.12: A judge
shall require court staff…to act in a manner consistent with the judge’s obligations under this code.
There is no official position from the Supreme Court of Ohio or the Board on the Unauthorized Practice of Law regarding assisting pro se litigants.
Court Personnel Serve Three Primary Functions:
Provide Access to Important Information
Provide Service to the Public
Provide Management of Pro Se Litigation
Avoiding the Dissemination of Legal Advice
Always Remember:
As representatives of the Court, staff have an implicit amount of authority.
Why Can’t Court Personnel Give Legal Advice?
Impartiality – acting without bias or prejudice toward any litigant (e.g., helping/hurting).
Neutrality – the court does not predetermine the outcome of litigation or recommend a course of action.
What is the Practice of Law?
Providing legal advice / counselPreparing pleadings/papersManaging actionsLegal opinions
IMPORTANT: Not just representing clients in a courtroom.
What is the Unauthorized Practice of Law?
Supreme Court – Original JurisdictionGov.Bar Rule VII(2)(A)
Public policy – persons should not receive legal advice from non-lawyers.
“Gov. Bar R. VII is built on the premise that limiting the practice of law to licensed attorneys is generally necessary to protect the public against incompetence, divided loyalties, and other attendant evils that are often associated with unskilled representation”.
The Key to Keeping Your Staff out of Trouble?
Always encouraging them to provide Legal INFORMATION
Never providing Legal ADVICE
Teaching them to distinguish between the DIFFERENCES
Legal information v. Legal advice
Legal information—GenericBooks, pamphlets, guides, information possessed by government workers and clerks of court
Information about court processes/terminology
Rules/legal concepts
Legal Advice
Legal advice—Specific / TailoredApplication / analysis / researchAffects the rights and obligations of
individuals under the lawOften irreversible (e.g., Statute of
limitations)Legal InterpretationProcedural AdviceLegal ResearchLegal Opinion
Test for Legal Advice
Am I offering information to a client with the view of having them act upon that information in furtherance of their best interest?
Am I responding to a question that started with the words “Should,” “Could,” or “Would”? (Advice Words)
OrAm I responding to a question that started with
“What is,” “Where is,” “Can I,” or “How do I?” (Information Words)
Legal Information v. Legal Advice
Legal Information
You will receive notice of your hearing date in 4-6 weeks.
You can use a pro se packet to file your motion.
Your signature must be notarized for the Court to accept this filing.
The document you received is your summons. You are being ordered to appear on May 5, 2011, at 3:00 p.m.
Legal Advice
You won’t receive any notice because you are filing in the wrong court. Case dismissed.
You need to use the paternity pro se packet, not the support packet.
If you do not file by Wednesday, your objection will be late, and the court can dismiss it.
If you are on vacation in May, it is not a problem, the Court always grants continuances.
Can Do/Cannot Do (1 of 3)
Can Do Provide Legal
Definitions
Provide Procedural Definitions and Explanations
Provide Citations for Statutes, Court Rules, and Ordinances
Cannot Do Provide Legal
Interpretations or Advice
Provide Procedural Advice
Provide Research of Statutes, Court Rules, Ordinances, or Opinions about (In)Applicability
Can Do/Cannot Do (2 of 3)
Can Do Provide Forms and
Instructions on How to Complete the Forms
Provide Public Information
Provide General Referral Information
Cannot Do Fill out Forms UNLESS a
handicap/illiteracy requires scrivener services
Provide Confidential Information; proprietary info about court operations; or relay ex parte communication
Provide Specific Referral Information
Can Do/Cannot Do (3 of 3)
Can Do Provide Options
Facilitate Access to the Courts
Refer questions to supervisors when you don’t know the answer
Cannot Do Provide Opinions
Discourage Access or Encourage Litigation
Provide Incorrect Answers/Guess at Answers you don’t know
Legal Definitions v. Legal Interpretation
How would you define child abuse?a) I would describe it as excessive spanking.b) Do you know a child that may be abused?c) The Ohio Revised Code defines child abuse at
chapter 2151.031.d) You need to ask an attorney.
Legal Definitions v. Legal Interpretation
Several young children living next door to me are without supervision most of the day. Is that child neglect?a) How old are the children and how long are they
unsupervised?b) That sounds like neglect, do you know the name of their
parent so I can report this to a prosecuting attorney?c) Since I’m not an attorney I cannot make a legal
interpretation, but let me refer you to the appropriate agency.
d) Let me call my brother who is an attorney and ask him.
Procedural definitions v. Procedural advice
My nephew is being arraigned today. What happens during the arraignment?a) I do not spend much time near the courtrooms. Why
don’t you go the hearing and see first hand?b) This is the first time your nephew will see a judge, and he
will need to plead not guilty or guilty. By the way, what did he do?
c) This will be his first appearance before a judge. He will be informed of his rights and formally charged.
d) Bail will be set. This judge always sets a high bail. Did you bring enough money today?
Procedural definitions v. Procedural advice
My neighbor’s dog bit me.Can I sue her?
a) I was bitten once and did not sue. Do you know if your neighbor has liability insurance? That usually helps.
b) I’m not an attorney, but anyone can sue.
c) You’ll need to ask an attorney.d) Sorry, I cannot provide legal advice –
this is a decision only you can make.
Citation of Rules, Procedures v. Research
How long do I have to file my responsive memorandum?a) That is addressed in Local Rule 12.b) Give me your name and case number and I will
ask the judge in the case.c) You’ll need to consult with an attorney. I cannot
help you.
Citation of Rules, Procedures v. Research
Please give me copies of all laws and case decisions regarding stalking in Ohio.a) I would be happy to. Please return in two days,
and I should have the information for you.b) Do you want federal laws too?c) That is outside the scope of my duties as a
clerk, but I can refer you to the law library.d) I’m sorry; I cannot conduct legal research for
you.
Options v. Opinions
I received a judgment. Now, how do I collect it?a) Good luck – there’s a huge difference between
getting a judgment and collecting it.b) That’s a good question for your attorney.c) Now that you won, you will need to go back to
court and ask the judge to garnish wages or sell the debtor’s property.
d) There are several options you may discuss with counsel – issue a writ of garnishment, a writ of execution, or a discovery subpoena.
Options v. Opinions
Should I file a writ of garnishment or a writ of execution?
a) I would go with the garnishment; its easier and you’re guaranteed to get money every month.
b) You’ll need to ask an attorney.c) I can explain the difference between the two,
but I cannot make a decision for you.d) I cannot answer your question.
Pro Se Litigants (i.e., the Do-it-Yourselfers)
Pro Se Litigants
The temptation for your staff will be to be especially helpful: However, they must be mindful of the Court’s
obligations of: Neutrality Impartiality Avoiding UPL
Barriers to Self Represented Litigants
The Barrier of Legal Language
Complexity of the Clerk’s Office
Problems with Simple Requirements E.g. Service
Pro Se Task Force Report
Pro Se/Indigent Task Force Report Recommendations
#32 Training of court staff.#33 Adopt written guidelines for court
personnel who are responsible for providing information to pro se litigants. Consider sites such as SelfHelpSupport.org and
Probono.net (a site for courts to use in supporting pro se litigants) and LawHelp.org (a site for low- and moderate-income pro se litigants)
#34 System to review cases filed by pro se litigants (case managers).
#39 Unbundling of legal services by attorneys.
Ex Parte Communication
What is ex parte communication?
A communication, concerning a pending or impending matter, between counsel or an unrepresented party and the court when opposing counsel or an unrepresented party is not present; or
any other communication made to the judge outside the presence of the parties or their lawyers.
Ex Parte should be avoided
Rule 2.9, Comment 1:To the extent reasonably possible, all parties
or their lawyers shall be included in communications with a judge.
Having conversations without one side does not support the court’s obligations of neutrality or impartiality.
Code of Judicial Conduct Rule 2.9(A)(3)
A judge may consult with court staff …whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities…provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record and does not abrogate the responsibility personally to decide the matter;
Code of Judicial Conduct Rule 2.9(D)
A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this rule is not violated by court staff, court officials, and others subject to the judge’s direction and control.
If a party cannot have ex parte communication with the judge directly, s/he may not do so indirectly through court staff.
Other Barriers to Neutrality and Impartiality
•LAWYER REFERRALS
•WORKPLACE HARASSMENT AND DISCRIMINATION
•REVEALING CONFIDENTIAL COURT PROCESSES
Lawyer Referrals
Referring a litigant to a particular attorney does not support the Court’s obligation of impartiality or neutrality.
Instead, staff should refer them to Lawyer Referral Services, Legal Aid, or the Public Defender’s office.
Workplace must be free of harassment and discrimination on the basis of:
Sex Sexual
orientation (Judicial Canons & Local Ordinance)
Race Ethnicity Color
Marital Status Childbearing
Status Age Religion National
Origin Ancestry Handicap
Disability Military or
Veteran Status Socio-
economic status
Political belief Any other
protected class
Anti-harassment/discrimination extends to the public:
OCJC 2.3 (B): A judge shall not permit court staff to manifest bias or prejudice, or engage in harassment, on these bases.
Confidential Court Processes
Court personnel may have access to operational information that would benefit one side or another if revealed (e.g., case assignment procedures).
It is your obligation to keep these matters confidential to remain neutral and impartial to all parties.
Duty of Confidentiality
Ohio Code of Judicial Conduct 2.10(A)-(C)
A judge may not publicly comment on pending/impending cases that may affect outcome or fairness of the matter.
A judge shall require court staff to refrain from making the same types of comments.
Confidentiality
Court records are largely public; however: Not every fact known to court employees is open for
dissemination to the public.
Even those facts that are public should be disclosed in a way that reflects positively upon the Court.
Staff should be counseled to avoid gossip/sensationalism.
The Myth of At-Will Employment
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Who can be terminated,
and who can’t?
At-Will Employment117
Court Employment
Most judges have universal powers of appointment/termination, aka: Serve at the pleasure of the judge Unclassified At-will
Some limited exceptions exist to this rule: Classified employees (e.g., common pleas probation,
local ordinance) Union
One big exception virtually swallows the rule:
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Harassment, Discrimination & Retaliation Protected Classes
Race & Color
Gender, Pregnancy & Marital Status
Religion
National Origin, Ancestry & Citizenship
Age
Military /Veteran Status
Non-Disqualifying Disability or Handicap
(Sexual Orientation)
Any other characteristic or conduct protected by law FMLA, FLSA, ADA,
USERRA Public Policy Associational Retaliation Constitutional protections
1st Am (speech, association, political affiliation)
4th (search/seizure) Due process Equal Protection
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Workplace Discrimination
Adverse decisions in: Hiring and Recruitment Promotion Retention Transfer Working Conditions Training Compensation Provision of Leave Suspension Termination
On the basis of membership in any of the protected classes
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Workplace Harassment
Unwelcome and Adverse Treatment Epithets, slurs Threats or intimidating behavior Negative stereotyping Denigrating jokes, literature
On the basis of someone’s membership in a protected class Sexual harassment is just another form of workplace
harassmentDoes not protect against mere personality
differences
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Sexual Harassment
May be based on sex, gender, or sex stereotypes
Can include: Quid Pro Quo or Hostile Work Environment
Harassment Committed by people inside or outside your workforce
E.g., Litigants, attorneys, vendors, employees of other agencies
May occur when overheard by the “unintended” third party
Conduct by/to both genders Conduct that was previously consensual
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What is optimally in the file before considering termination?
Documentation to demonstrate the employee knew what was expected of them Job description Evaluations Handbooks Discipline
Documented instructions of how to succeed Coaching notes / discipline / evaluations
Documented warnings that failure to correct bad behavior would result in termination
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What is optimally NOT in the file?
Information in OTHER files that similarly situated employees were treated differently in this situation
All this documentation…created only in the recent past
Glowing evaluationsMissing documentation that has been lost in
cyberspace or overwritten by the entity backing up your computers
NOTE: All of these problems can be mitigated, but they put the termination higher on the spectrum of risk.
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E-mail is great for productivity and increasing the likelihood matters get documented; however, ALL personnel-related e-mails (as well as any
documentation/e-mails created in the ordinary course of business that document the operations of the entity) are public record.
Ohio R. Super. 26.01(J): 10 years past last date of employment
Ideally, preserved in electronic form; however, printout is better than nothing Know where the e-documents live and ensure they are
properly preserved. Ensure backup tapes can be pulled when necessary
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E-mail, continued
Employees should be trained to understand that anything they put in e-mail should be composed with as much care and caution as any other document Workplace harassment, confidentiality, and First
Amendment issues apply equally to e-mail Public Records Act applies equally
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Discrimination, Harassment & Retaliation
Law Update127
New associational retaliation claims available
The law now prohibits retaliation against e/ees who are merely associated with e/ees who engage in protected activity. Thompson v. North American Stainless, 131 S.Ct. 863 (January 24, 2011).
E/ee filed discrimination Charge with EEOC; three weeks later, employer terminated her fiancé.
Held: Title VII’s anti-retal. provision applies to associated 3rd parties.
Who is associated? “Zone of interest” Definitely those connected by marriage or close family
relationship Definitely engaged Co-habitants? Boyfriend/girlfriend? Friends? Distant cousins?
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GINA
The Genetic Information Nondiscrimination Act of 2008 prohibits the improper use of genetic information in employment.
Employers can’t use individuals' genetic information when making hiring, firing, placement, or promotion decisions.
Genetic discrimination and harassment are prohibited by the law.
Final GINA regulations recently went into effect (1/10/11—one year after the law).
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What is “genetic information” under GINA?
The employee’s genetic testsEmployee’s family members’ testsFamily medical historyEmployee’s request for / receipt of genetic services
or participation in clinical research that includes genetic services by the employee or family member
Genetic information of an employee’s unborn child or employee’s pregnant family member’s unborn child (same law applies to frozen embryos).
Not limited to inheritable diseases—adopted family members are covered, as is information regarding the manifestation of the disease, not necessarily inherited.
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Specific prohibitions
Employers may not request genetic info, including obtaining employee info by Internet searching Actively listening to third party conversations Searching personal effects Asking about an individual’s current health status in a
way that is likely to obtain that information (“Does cancer run in your family?”)
Limited exception for inadvertent “water cooler” collection of info (e.g., “how are you” is still okay)
May still obtain FMLA info
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Wellness programs
Still okay to acquire genetic info for wellness programs if enrollment is voluntary, but employees must give prior, voluntary, knowing, and written authorization.
Info must remain confidentialOkay to offer financial incentive to
participate, but may not offer inducement to provide genetic info (e.g., may offer money to join, but can’t make providing genetic info a condition precedent to joining)
Must provide programs/incentives universally.
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Safe Harbor—include whenever seeking medical info
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Include in every ADA, FMLA, return-to-work certification.
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GINA Posting Requirements
All public-sector employers must post a GINA notice in a workplace common area. Download a GINA-compliant EEO poster at
www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost.pdf
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Next steps
Update FMLA and fitness-for-duty forms and ADA accommodation paperwork to include the safe harbor language.
Train managers, supervisors, and HR personnel, especially as to the potential for liability in casual conversation.
Update handbooks to include genetic info.Update postingsConsider wellness programs
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ADA Amendments Act of 2008 (ADAAA)
Effective January 1, 2009 ADAAA overturned a series of ADA decisions by the
U.S. Supreme Court It expanded the scope of medical conditions protected
by the law. More individuals will be protected under the revised
law We’re just beginning to see cases that come under the
new regs.
EEOC Final Regulations released on March 24, 2011
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ADAAA Changes—Broad Coverage
Definition of disability must be construed in favor of a “broad coverage of individuals … to the maximum extent permitted” by the statute. Rejected S.Ct.’s decision that impairment must
“significantly restrict a major life activity Opted for the broader “substantially limit” a MLA
Shorthand: Under the new regs, consider substituting the word “disability” for “medical condition”—actual, past, perceived.
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Broad Coverage, DefinedHow severe must an impairment be to “substantially limit” a
MLA?
Old Law: Impairment must prevent or severely restrict the individual from doing activities that are of central importance to most people’s daily lives.
New Law: Definition of disability is construed in favor of broad coverage Conditions that were previously excluded are
likely now included. Examples: carpal tunnel, severe back pain,
obsessive-compulsive disorder, learning disabilities, and depression
But still case-by-case determination
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What is a Major Life Activity under the broader ADAAA?
WalkingRunningHearingSeeingSpeakingBreathingBodily Function
Immune Digestive Respiratory System Normal cell growth Bowel / bladder Neurological / brain Circulatory Endocrine Reproductive
Caring for oneself Performing manual tasksEatingSleepingStandingLiftingBendingLearningReadingConcentratingThinkingCommunicatingWorking (broad class of
jobs)
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Episodic / In-remission Impairments
Impairment in remission Old law: impairment must last for a significant period of
time to constitute a disability. ADAAA: Episodic impairments that substantially limit a major life
activity when active Medical conditions that are in remission that
substantially limit a major life activity when active Examples: cancer, diabetes, serious heart conditions, and
epilepsy Pre-ADAAA, some courts found these were not disabilities Post-ADAAA, these are likely to be considered disabilities
under the new law Still case-by-case consideration.
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Mitigating Measures
Old law: Evaluate person’s abilities after the use of corrective / mitigating measures (e.g., medication, hearing aids)
New law: Cannot consider effects of mitigating measures in determining whether impairment substantially limits a MLA. Examples: medication, hearing aids, prosthetics, Exception: ordinary eyeglasses/contacts not
considered But can still be used to determine whether impaired
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ADAAA Changes
Regarded as Disabled--Broader An individual meets the requirement of being
“regarded as” disabled whether or not the actual or perceived impairment actually limits or is perceived to limit a major life activity. Employer must only believe the employee have a medical
impairment.
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Two pro-employer developments in the ADAAA
Regarded as Disabled “Regarded as” claims cannot be based on transitory
and minor impairments where the impairment that is expected to last less than six months. The only perceived “impairments” that don’t count are
those that are both transitory (<6 mos) AND minor. Also, employers are not required to provide a
reasonable accommodation to individuals who are regarded as disabled.
Now very easy to sue under the “regarded as” prong, as long as employees aren’t challenging failure to accommodate.
No reverse discrimination by undisabled.
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ADAAA, In Summary
More accommodation More individuals will be protected under the ADA Employers will need to engage in the reasonable accommodation process
more frequently. Focus will shift from whether e/ee is disabled, and switch to whether
adverse actions motivated by disability or whether employee was denied a reasonable accommodation
Fewer cases dismissed More employees will be covered by the ADA Fewer cases will be dismissed on MSJs
Important for employers to search out / take requests for accommodation seriously
Be mindful of ADA claims when disciplining/terminating employees with a medical condition
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EEOC’s ADAAA Rules
Examples Illustrating Definition of Disability EEOC notes that analysis of disabilities can be divided into three
categorical methods. Impairments that will consistently result in a determination that the
person is substantially limited in a major life activity (ex. deafness, blindness, intellectual disability, cancer, major depression etc).
Impairments that may be substantially limiting for some but not others. These may require more, “though still not extensive,” analysis (ex. Asthma, high blood pressure, anxiety disorder, carpal tunnel syndrome etc).
Temporary, non-chronic impairments of short duration with little or no residual effects that usually will not substantially limit a major life activity However, a temporary impairment lasting fewer than 6 months
can still qualify (ex. 20 pound lifting restriction lasting several months).
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Hidden effect of new ADAAA
ADA class actions were routinely unsuccessful because too difficult to define disabled class members.
Now that disabilities are so much easier to prove, anticipate class claims for: Improper employment application/interview questions Improper post-offer medical examinations Terminations at the end of medical leaves of absence Other systemic/routine policies that affect individuals
with a medical condition.
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ADAAA Cases
Verhoff v. TWC—6th Cir. 2008 (pre-ADAAA)Watts v. UPS—6th Cir. 2010
Previewed how 6th Cir. Will be applying ADAAA Noted “broadened” definition of disability, expanded
list of MLAs, and disregard of mitigating measures Recognized Toyota Motor Mfg. (interpreting ADA
strictly to create a demanding standard for disability) no longer good law
Jenkins v. Nat’l Bd. Of Med. Ex. –6th Cir 2009 Dist. Ct. applied old standard 6th Cir. Remanded, ordering new relaxed standard for
disability.Most ADA law on “disability” is now bad
law.
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What should we do now? (1 of 2)
Change your paradigm: Nearly everyone is disabled.
Bone up on reasonable accommodation analysis—you’ll be offering them more often.
If a medical condition renders an employee unfit, ensure you carefully walk through accommodation options with counsel.
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What should we do now? (2 of 2)
Closely monitor post-offer medical screens: Ensure docs aren’t routinely rejecting certain
conditions Ensure rejections are deemed preliminary until
reviewed by counsel/HR (may require HIPAA auth.)
Audit your medical leave policies, especially those that automatically terminate after FMLA leave, etc.
Biggest impact: Cat’s Paw Front line supervisors and low-level managers should
be trained and know when to refer matters up the chain.
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Pregnancy Discrimination in OhioMcFee v. Nursing Care Mgmt. of Am.—O.Sct., June 22, 2010
Policy required 1 year of service before eligible for leave for any reason.
Employer fired McFee 3 days after she gave birth because ineligible for more leave. McFee sued for sex discrimination.
Holding: Ohio’s antidiscrimination laws did not require that employers provide employees with a reasonable period of maternity leave when the policy at issue imposed a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave.
Harmonized Ohio’s pregnancy discrimination regulations on mandatory maternity leave—OAC 4112-5-05(G)(2) and (G)(5).
Takeaway-- employers may terminate pregnant employees who haven’t met minimum-length-of-service requirements under neutral policy.
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McFee, cont.
Three caveats: Leave policies must be neutral.
An employer cannot have a maternity leave policy with a length-of-service requirement, and a different leave policy for other situations with no length-of-service requirement, or one of a shorter duration.
Leave, if offered, must include maternity. Employers do not have to offer maternity leave to employees.
However, if leave is offered for any reason, it must include maternity leave in at least the same amount and on the same conditions as other types of leave.
Leave provisions must be consistent. Merely having a neutral policy does not grant an employer carte
blanche to terminate pregnant employees or new moms. The policy must still be applied equally to all employees with similarly disabling conditions.
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ARE YOU READY?
Social Media and the Courts
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Social Media and the Courts
http://www.youtube.com/watch?v=Z4gt62uAasE
SOCIAL INTERACTION
PUBLISHING
USING THE INTERNET TO COMMUNICATE TO A LARGE NUMBER OF PEOPLE ON A
RAPID BASIS
OFTEN EXECUTED WITH LITTLE EDITING, PREMEDITATION, OR FILTER
So what is all this “social media” buzz I’ve been
hearing about?154
How has this played out in the courts?
U.S. v. Hernandez (S.D. Fla)—10 of 12 jurors had disregarded the Court’s instructions to avoid the Internet during the trial, and they had researched the case online.
Bloggers, Twitter “tweets,” and Facebook updates keep the public apprised of events in real time.
Voir dire beginning to address whether jurors can go on a “media fast.”
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Three questions to consider in looking at your workplace:
How many of your employees: Have a blog? A Twitter, MySpace, Facebook, or LinkedIn account? Post videos of themselves to YouTube?
Why do I care?
And what can I lawfully do to monitor and control that content?
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Where does all this information get published?
Blogs – websites where authors regularly post entries, often with the ability for feedback from viewers.
Microblogs—TwitterSocial Networking—Facebook, MySpace,
LinkedInPosting—YouTube, Shutterfly, Flickr
Thousands of others available—these are just some of the biggest
These are all accessible via traditional PC, netbooks, tablets, and smartphones—everywhere, all the time.
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Why do I care?
Productivity costs
Perception of the courts / potential for confidential or inappropriate information to be disseminated.
Potential employment law concerns
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Productivity
Social media = constantly plugged in, updating, and changing
You still control the workday—okay to limit personal Internet use, social media access, cell phone/smartphone during work time (not breaks)
Balance productivity against realistic ability to enforce these rules Potential perception / morale issues with employees.
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Perception of the Courts
Consider how posts like the following would impact the public’s perception of the courts: My supervisor cuts out every Friday at noon and we
have to pick up her slack.
Can’t believe how wrong the jury was in the Smith case. Were they even paying attention?
The Jones case should be interesting to watch—it could have gone an entirely different way if had been assigned to Judge Johnson.
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Employees Employers
Defamation and other PI torts
42 USC 1983
FCRAEEORetaliationInvasion of Privacy42 USC 1983 (1st,
4th)PI torts3d pty negligent
hiring
Potential claims against161
What about the First Amendment?
Free speech re: official duties only protects matters of public concern (Garcetti v. Ceballos) Political, social, or matters of other concern to
the community Not petty workplace squabbles
Free speech unrelated to official duties = subject to balancing test. Spanierman v. Hughes, 576 F.Supp.2d 292 (D.Conn
2008)(teacher’s opposition to Iraq war, inappropriate exchanges with students, on MySpace)
Balancing test between how Constitutionally important speech is vs. employer’s interest in efficiency and workplace harmony
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Factors to evaluate in balancing speech
Will speech create problems in maintaining workplace discipline or harmony?
Does employment relationship require loyalty or personal confidences?
Will speech impede ability to perform duties?What was the time, place, manner, or context
of the speech?Is debate vital to informed decision making?Is the speaker regarded as a member of the
general public?
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Don’t forget about FCRA and privacy
Employees maintain an expectation of privacy Guest v. Leis, 255 F.3d 325 (6th Cir. 2001)—no
expectation of privacy in publicly posted materials, BUT
Avoid violating terms of service to surreptitiously access SM sites
Don’t adopt aliases to “friend” employees or circumvent proper channels to see their sites. (Pietrylo v. Hillstone Rest. Group, 2008 US Dist LEXIS 108834 (D. NJ)
FCRA requires written consent/disclosures before conducting third-party background checks
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Quon v. City of Ontario, 130 SCT 2619 (2010
First Supreme Court case address public employees’ privacy expectations in employer-issued electronic devices (e.g., pagers, cell phones, smartphones).
Employee used work-issued pager to send personal texts, including “sexting.”
Employer’s audit of pager failed to violate 4th Amendment because the employer had a legitimate reason for the audit (to determine if the character limit on the contract was reasonable).
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Bottom line of Quon
While the employer won that case, the SCT made clear:
Employees may assume a legitimate privacy interest in employer-issued electronics. NOTE: Therefore, put explicit disclaimers in your
policies that they should not maintain such an expectation, and reserve the right to audit for any reason.
Absent a legitimate, work-related reason, the employer could not violate that privacy right.
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Job References
Consider defamation, discrimination, and all the same employment law filters when receiving LinkedIn requests for references. If you only provide name, rank, serial number in real
world, why deviate here? Of course, avoid reference for terminated employees—
difficult to defend legitimate, nondiscriminatory rationale afterwards.
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Drafting a social media policy
Cover what is prohibited Discussion of court confidences / private information Airing internal grievances in a manner that is
unbecoming or harmful to the public’s perception of the court.
Anything that would otherwise violate court policy (e.g., workplace harassment)
Consider whether you want to restrict “friending” between certain categories of people (probation staff & probationers)
Cover what is required Maintaining duties of confidentiality, impartiality, UPL Maintaining respect for co-workers, privacy of
litigants
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Sample
A clearinghouse of over 200 social media policies is available at http://www.compliancebuilding.com/about/publications/social-media-policies
If you copy one, be sure to use one developed for the public sector, and it’s a good idea to coordinate with counsel.
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Basic sample (page 1 of 3)
The Court’s policies on employee conduct are equally applicable to activity that occurs online. Employees should consider these policies whenever posting content to electronic mail, chat rooms, text messages, blogs, social networking sites (e.g., Facebook, MySpace, Twitter, LinkedIn), or other public forums.
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Basic sample (page 2 of 3)
Regardless of whether their conduct occurs online or elsewhere, employees remain equally responsible to maintain the confidentiality of non-public Court information, avoid workplace harassment, and follow all other Court policies designed to ensure workplace productivity and public confidence in the Court.
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Basic sample (page 3 of 3)
Any public post should have clear disclaimers that the views employees express do not represent the views of the Court. Employees should remain respectful to the Court, co-workers, litigants, and other visitors to the Court in online posts, avoiding any online conduct that could negatively impact the public’s perception of the Court. Nothing in this policy is intended to alter or infringe upon eligible employees’ rights of free speech or ability to speak out on matters of public concern.
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Employment Law Update
Kimberly Vanover Riley, Esq. Montgomery, Rennie & Jonson Co., L.P.A.Cleveland(440)[email protected]
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