Indiana Wesleyan UniversityIndiana Wesleyan UniversityADM 510ADM 510

Human Resources & Human Resources & Employment RegulationEmployment Regulation

Agency RelationshipsAgency Relationships

AgencyAgency: A : A fiduciary relationshipfiduciary relationship that results that results when one person (the when one person (the principalprincipal) manifests her ) manifests her consent that another person (the consent that another person (the agentagent) will act ) will act on her behalfon her behalf and and subject to her controlsubject to her control, and , and the agent manifests his consent to so act.the agent manifests his consent to so act.Fiduciary: Fiduciary: A person who undertakes to act on A person who undertakes to act on behalf of and primarily for the benefit of another.behalf of and primarily for the benefit of another.Fiduciary Duty: Fiduciary Duty: A duty arising from the trust A duty arising from the trust and confidence placed in a fiduciary by those on and confidence placed in a fiduciary by those on whose behalf and for whose benefit she acts.whose behalf and for whose benefit she acts.

Why is it important to determine a Why is it important to determine a worker’s status?worker’s status?

Determines whether an employer is Determines whether an employer is subject to certain regulations such as subject to certain regulations such as FMLA, Workers’ Compensation Benefits, FMLA, Workers’ Compensation Benefits, overtime, and unemployment security overtime, and unemployment security benefits.benefits.

Employment and withholding taxes.Employment and withholding taxes.

Terms and conditions of employment.Terms and conditions of employment.

Vicarious liability and Vicarious liability and respondent superior.respondent superior.

EmployeeEmployee

Employee: Employee: A personA person

(1)(1) who who works forworks for, and receives , and receives payment payment fromfrom, an employer,, an employer,

(2)(2) whose whose working conditionsworking conditions and and methodsmethods are are controlled by the employercontrolled by the employer, , andand

(3)(3) for whose acts and omissions for whose acts and omissions occurring in the scope of employment the occurring in the scope of employment the employer is liableemployer is liable..

Independent ContractorIndependent Contractor

Independent Contractor: Independent Contractor: A personA person(1)(1) who who works forworks for, and receives , and receives payment frompayment from, an employer,, an employer,(2)(2) but whose but whose working conditionsworking conditions and and methodsmethods areare notnot controlled by the controlled by the employeremployer, and, and(3)(3) for whose acts and omissions the for whose acts and omissions the employer is employer is notnot liable liable..

Determining StatusDetermining StatusTo determine whether a worker is an employee or an To determine whether a worker is an employee or an

independent contractor, courts consider the following:independent contractor, courts consider the following:(1)(1) how much how much directiondirection and and controlcontrol the employer the employer exercises over the details of the person’s work,exercises over the details of the person’s work,(2)(2) whether the person is engaged in an occupation or whether the person is engaged in an occupation or business business distinctdistinct from that of the employer, from that of the employer,(3)(3) whether the work the person performs is usually done whether the work the person performs is usually done under the employer’s under the employer’s directiondirection or without employer or without employer supervision,supervision,(4)(4) who supplies who supplies toolstools used by the person, used by the person,(5)(5) the the durationduration of the person’s employment, of the person’s employment,(6)(6) how the person is how the person is paidpaid for his work, and for his work, andthe degree of the degree of skillskill required of the worker. required of the worker.

By contrast, the IRS bases its determination whether a person is By contrast, the IRS bases its determination whether a person is an employee using a single factor: the an employee using a single factor: the degree of degree of control the control the business exercises over the worker.business exercises over the worker.

Respondeat SuperiorRespondeat Superior

An agent is liable for her own torts. In An agent is liable for her own torts. In addition, a principal may be liable for its addition, a principal may be liable for its agent’s torts if the agent’s tort resulted agent’s torts if the agent’s tort resulted from:from:

(1)(1) the the principal’s ownprincipal’s own tortious conduct, tortious conduct,

(2)(2) a tortious act a tortious act authorizedauthorized by the by the principal, orprincipal, or

(3)(3) the agent’s unauthorized tort the agent’s unauthorized tort committed within the committed within the scope of the agencyscope of the agency..

Independent Contractor LiabilityIndependent Contractor Liability

As a general rule, an employer who has no legal As a general rule, an employer who has no legal power to control the details of the independent power to control the details of the independent contractor’s performance is not liable for any torts contractor’s performance is not liable for any torts committed by the independent contractor, even if committed by the independent contractor, even if committed while performing the contract.committed while performing the contract.Exception:Exception: Unusually Hazardous Activities Unusually Hazardous Activities – – An employer is strictly liable for injuries caused by An employer is strictly liable for injuries caused by those performing unusually hazardous activities those performing unusually hazardous activities ((e.g.e.g., blasting, using poison) on the employer’s , blasting, using poison) on the employer’s behalf, behalf, regardlessregardless of whether the person causing of whether the person causing the injury is an employee or an independent the injury is an employee or an independent contractor.contractor.

At Will EmploymentAt Will Employment

This means that you are free to take a job at any This means that you are free to take a job at any time for any reason and free to leave the job at time for any reason and free to leave the job at any time for any reason. This also means that any time for any reason. This also means that your employer may hire or not hire you and your employer may hire or not hire you and terminate you for any reason or for no reason at terminate you for any reason or for no reason at all at any time.*all at any time.*

*The reason cannot be an impermissible reason *The reason cannot be an impermissible reason such as racial discrimination, whistle-blowing, jury such as racial discrimination, whistle-blowing, jury duty, retaliation, or other exception found in law.duty, retaliation, or other exception found in law.

At Will EmploymentAt Will Employment

Employment in Indiana is “at will” unless:Employment in Indiana is “at will” unless:1.1. You have a statutory property interest in You have a statutory property interest in

your job;your job;2.2. Contract employee;Contract employee;3.3. Independent contractor:Independent contractor:4.4. Covered by a labor agreement (contract); orCovered by a labor agreement (contract); or5.5. Your at will employment is transformed to Your at will employment is transformed to

“for cause” employment by assurances “for cause” employment by assurances made by your employer (Estoppel or made by your employer (Estoppel or implied K).implied K).

At Will Exceptions: Whistle-BlowerAt Will Exceptions: Whistle-Blower

Employee’s reporting of an employer’s Employee’s reporting of an employer’s wrongdoing.wrongdoing.

Generally, in Indiana an employee must Generally, in Indiana an employee must rely on a whistle-blowing statute for rely on a whistle-blowing statute for protection. protection.

Indiana has only public sector whistle-Indiana has only public sector whistle-blower protection under state laws.blower protection under state laws.

At Will Exceptions: WARNAt Will Exceptions: WARN

Worker Adjustment & Retraining Notification Worker Adjustment & Retraining Notification Act. Act.

Plant Closing = Employment loss of 50 or Plant Closing = Employment loss of 50 or more workers during 30 day period.more workers during 30 day period.

Mass layoff = 500 workers in 30 day period Mass layoff = 500 workers in 30 day period or 50-499 workers in 30 day period if they or 50-499 workers in 30 day period if they comprise 1/3 or more of the active comprise 1/3 or more of the active workforce.workforce.

60 day notice requirement.60 day notice requirement.

At Will Exceptions: Public PolicyAt Will Exceptions: Public Policy

Law or regulation that specifically protects Law or regulation that specifically protects an employee from discharge is a an employee from discharge is a statement of public policy.statement of public policy.

Is the policy clear?Is the policy clear?

Will such a discharge discourage other Will such a discharge discourage other employees from exercising their rights or employees from exercising their rights or discourage compliance and frustrate the discourage compliance and frustrate the policy? policy?

At Will Exceptions: Fair DealingAt Will Exceptions: Fair Dealing

Found in contract law that each party has Found in contract law that each party has an obligation to act in good faith in the an obligation to act in good faith in the fulfillment of each party’s contractual fulfillment of each party’s contractual duties.duties.

Indiana does not follow this doctrine with Indiana does not follow this doctrine with respect to at-will employment.respect to at-will employment.

At Will Exceptions: Promissory At Will Exceptions: Promissory EstoppelEstoppel

Employer made a promise that the Employer made a promise that the employee reasonably relied.employee reasonably relied.As a result of such reliance the employee As a result of such reliance the employee was injured (loss of job).was injured (loss of job).InIn Romack v. Public Service Co. of Indiana, Romack v. Public Service Co. of Indiana, 511 511 N.E.2d 1024 (Ind.,1987) the Supreme Court, N.E.2d 1024 (Ind.,1987) the Supreme Court, Dickson, J., held that employee who had Dickson, J., held that employee who had “lifetime” employment with state police, was “lifetime” employment with state police, was recruited by defendant employer because of his recruited by defendant employer because of his unique skills, and was promised permanency of unique skills, and was promised permanency of employment could be discharged only for cause.employment could be discharged only for cause.

At Will Exceptions: USERRAAt Will Exceptions: USERRA

The Uniform Services Employment and The Uniform Services Employment and Reemployment Rights Act guarantees Reemployment Rights Act guarantees eligibleeligible veterans a right to reemployment veterans a right to reemployment and freedom from discrimination and and freedom from discrimination and retaliation. For veterans who served more retaliation. For veterans who served more than 181 days active duty, an application than 181 days active duty, an application for reemployment must be made with the for reemployment must be made with the employer within 90 days after completion employer within 90 days after completion of military service duty.of military service duty.

Wrongful DischargeWrongful DischargeAbsent a contrary provision in a written agreement Absent a contrary provision in a written agreement between the employer and employee, employment between the employer and employee, employment is presumed to be is presumed to be “at-will”“at-will” – meaning that the – meaning that the employer may terminate the employee at any time, employer may terminate the employee at any time, for any reason, or for no reason at all. for any reason, or for no reason at all.

However, discharge in violation of an employment However, discharge in violation of an employment contract, for-cause employment, labor agreement, contract, for-cause employment, labor agreement, and for the reasons excepted from at-will and for the reasons excepted from at-will employment may result in compensatory or employment may result in compensatory or punitive damages paid to the plaintiff by the punitive damages paid to the plaintiff by the employer.employer.

Constructive DischargeConstructive Discharge

Employee is “forced out” because of Employee is “forced out” because of employer behaviors that make it so employer behaviors that make it so unfavorable or detrimental to remain in the unfavorable or detrimental to remain in the workplace that the employee finds it workplace that the employee finds it intolerable to endure. intolerable to endure.

Courts will consider the employee as Courts will consider the employee as terminated by the employer.terminated by the employer.

Retaliatory DischargeRetaliatory Discharge

Retaliation against an employee for Retaliation against an employee for exercising rights under law (ADA, ADEA, exercising rights under law (ADA, ADEA, or EEOC for example).or EEOC for example).

1.1. Protected activity.Protected activity.

2.2. Adverse action by employer.Adverse action by employer.

3.3. Causal connection between protected Causal connection between protected activity and the adverse action.activity and the adverse action.

Covenants Not to CompeteCovenants Not to Compete

Contract in writing.Contract in writing.

Protects a legitimate business interest.Protects a legitimate business interest.

Ancillary to a legitimate business Ancillary to a legitimate business relationship.relationship.

Reasonable in scope and duration.Reasonable in scope and duration.

In the market area.In the market area.

Not contrary to public policyNot contrary to public policy

Title VII of the Civil Rights Act of Title VII of the Civil Rights Act of 1964 1964

42 USCA § 2000e42 USCA § 2000e

Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 prohibits the unequal treatment of persons prohibits the unequal treatment of persons based on race, color, national origin, based on race, color, national origin, religion, gender, age, or disability.religion, gender, age, or disability.

Disparate TreatmentDisparate Treatment

Disparate Treatment: Disparate Treatment: Intentional discrimination by an Intentional discrimination by an employer against employees or applicants who are employer against employees or applicants who are members of a members of a protected classprotected class ( (e.g.e.g., Hispanics, females, , Hispanics, females, disabled persons). To prevail on a disparate treatment disabled persons). To prevail on a disparate treatment claim, a plaintiff must prove that:claim, a plaintiff must prove that:

(1)(1) she is a member of a protected class;she is a member of a protected class;(2)(2) she applied and was qualified for, or was she applied and was qualified for, or was

employed in, the position in question;employed in, the position in question;(3)(3) she was rejected, demoted, or terminated by the she was rejected, demoted, or terminated by the

employer; andemployer; and(4)(4) the employer subsequently filled the position with the employer subsequently filled the position with

a person not in a protected class.a person not in a protected class.

Disparate ImpactDisparate Impact

Disparate Impact: Disparate Impact: Practices or procedures which, Practices or procedures which, although not intentionally discriminatory, have the although not intentionally discriminatory, have the effect of discriminating against members of a effect of discriminating against members of a protected class.protected class.

““Four-Fifths Rule”: Four-Fifths Rule”: The EEOC deems a The EEOC deems a challenged practice or procedure to be challenged practice or procedure to be discriminatory if it results in members of a discriminatory if it results in members of a protected class being hired, retained, or protected class being hired, retained, or promoted at a rate less than four-fifths of the rate promoted at a rate less than four-fifths of the rate for the group with the highest corresponding rate.for the group with the highest corresponding rate.

Color or National OriginColor or National Origin

Discriminating on the basis of color or Discriminating on the basis of color or national origin with regard to national origin with regard to hiring or hiring or promotingpromoting employees is illegal employees is illegal unlessunless the the discriminatory policies or procedures have a discriminatory policies or procedures have a substantial, demonstrable relationshipsubstantial, demonstrable relationship to to realistic qualificationsrealistic qualifications for the job in for the job in question.question.Discriminating against employees on the Discriminating against employees on the basis of color or national origin with regard to basis of color or national origin with regard to employment conditionsemployment conditions or or benefitsbenefits is is illegal.illegal.

ReligionReligion

Religion:Religion: Employers are required to Employers are required to reasonably accommodatereasonably accommodate their their employees’ employees’ religious beliefsreligious beliefs, unless , unless doing so would cause doing so would cause undue hardshipundue hardship to to the employer’s business.the employer’s business.

An employee’s religious beliefs need not An employee’s religious beliefs need not be based on the tenets or dogma or a be based on the tenets or dogma or a particular church, sect, or denomination, particular church, sect, or denomination, as long as it is sincere.as long as it is sincere.

GenderGenderFederal law prohibits employers from:Federal law prohibits employers from:(1) (1) discriminatingdiscriminating against applicants and against applicants and

employees on the basis of gender,employees on the basis of gender,(2) (2) classifyingclassifying jobs as “male” and “female,” jobs as “male” and “female,”

oror(3) (3) advertisingadvertising jobs in help-wanted columns jobs in help-wanted columns

designated “male” and “female,”designated “male” and “female,”unless the employer can prove that the unless the employer can prove that the gender of the applicant or employee is gender of the applicant or employee is essential to the jobessential to the job in question. in question.

Gender: PregnancyGender: Pregnancy

Pregnancy: Pregnancy: Federal law also requires Federal law also requires employers to treat women who are employers to treat women who are pregnant, have recently given birth, and/or pregnant, have recently given birth, and/or have a medical condition related to have a medical condition related to pregnancy or childbirth the same as any pregnancy or childbirth the same as any other employee who is temporarily unable other employee who is temporarily unable to perform some or all of his or her job to perform some or all of his or her job functions.functions.

Gender: Affinity OrientationGender: Affinity Orientation

Title VII of the Civil Rights Act of 1964 does Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of not prohibit discrimination on the basis of affinity orientation. Accordingly, affinity orientation. Accordingly, discrimination based on sexual orientation discrimination based on sexual orientation is not protected under Title VII, but some is not protected under Title VII, but some state laws do provide protection from state laws do provide protection from discrimination based on affinity orientation.discrimination based on affinity orientation.

Gender: Equal Pay ActGender: Equal Pay Act 29 UCA § 29 UCA § 206(d)206(d)

Equal Pay Act: Equal Pay Act: Federal law prohibits Federal law prohibits gender-based differences in wages paid gender-based differences in wages paid for equal work on jobs whose performance for equal work on jobs whose performance requires equal skill, effort, and requires equal skill, effort, and responsibility under similar conditions.responsibility under similar conditions.

Who is covered by Title VII?Who is covered by Title VII?

All government employers.All government employers.

Employment referral agencies.Employment referral agencies.

Private employers with 15 or more Private employers with 15 or more employees.employees.

Unions.Unions.

All levels of employees of covered All levels of employees of covered employers.employers.

Limited Exceptions to Title VIILimited Exceptions to Title VII

Soldiers and Sailors of the Armed forces Soldiers and Sailors of the Armed forces (civilians are covered).(civilians are covered).

Bona fide private clubs (does include labor Bona fide private clubs (does include labor organizations which are covered).organizations which are covered).

Indiana tribes (semi-sovereign political Indiana tribes (semi-sovereign political entity).entity).

Religious organizations are covered, but Religious organizations are covered, but may hire employees based on religious may hire employees based on religious beliefs.beliefs.

Veteran Preferences Veteran Preferences

Title VII specifically preserves statutory Title VII specifically preserves statutory veteran preferences from any challenge veteran preferences from any challenge under Title VII.under Title VII.

42 USCA § 2000e-1142 USCA § 2000e-11

Proceeding through the EEOCProceeding through the EEOC

Complaint to EEOC (180 days or 45 for federal Complaint to EEOC (180 days or 45 for federal employees)employees)Notice to employerNotice to employerNotice to referral to mediation if appropriateNotice to referral to mediation if appropriateCharge is mediated if both parties agreeCharge is mediated if both parties agreeIf no mediation or unsuccessful, EEOC investigatesIf no mediation or unsuccessful, EEOC investigatesParties try to conciliateParties try to conciliateIf no conciliation, EEOC makes determinationIf no conciliation, EEOC makes determinationIf no cause, employee given right to sue letterIf no cause, employee given right to sue letterIf cause, employer is given notice of proposed remedyIf cause, employer is given notice of proposed remedyIf employer disagree, appeal to next agency level.If employer disagree, appeal to next agency level.

Judicial Review of ClaimsJudicial Review of Claims

EEOC may file a civil action in federal EEOC may file a civil action in federal court.court.

EEOC decisions get EEOC decisions get de novode novo review in review in court.court.

Persons must exhaust the administrative Persons must exhaust the administrative review process before going to court.review process before going to court.

RemediesRemediesBack pay.Back pay.Front pay.Front pay.Reinstatement.Reinstatement.Seniority.Seniority.Retroactive Seniority.Retroactive Seniority.Make-whole or injunctive relief.Make-whole or injunctive relief.Compensatory and punitive damages.Compensatory and punitive damages.Attorney fees.Attorney fees.Medical costs.Medical costs.

Employees prima facie caseEmployees prima facie case

Belongs to a protected groupBelongs to a protected group

Was qualified for the jobWas qualified for the job

Was rejectedWas rejected

Position remained open and search Position remained open and search continuedcontinued

Employer claims action was taken for Employer claims action was taken for legitimate nondiscriminatory reasons. legitimate nondiscriminatory reasons. Employee counters that the reasons are Employee counters that the reasons are simply a pretext for discrimination.simply a pretext for discrimination.

Employer DefensesEmployer Defenses

Bona Fide Occupational Qualification Bona Fide Occupational Qualification defense (BFOQ).defense (BFOQ).

Business Necessity.Business Necessity.

Employee’s claims (facts) are not true.Employee’s claims (facts) are not true.

Applicant was not otherwise qualified for Applicant was not otherwise qualified for the position.the position.

Recruiting & HiringRecruiting & Hiring

Human ResourcesHuman ResourcesPlanningPlanning

Human ResourcesHuman ResourcesPlanningPlanning JobJob AnalysisAnalysisJobJob AnalysisAnalysis

Determine recruitmentDetermine recruitment& selection needs& selection needs

Determine recruitmentDetermine recruitment& selection needs& selection needs

Job AnalysisJob AnalysisJob analysisJob analysis determines the tasks, duties and determines the tasks, duties and

responsibilities of the job.responsibilities of the job.

A A job analysisjob analysis should be done for each job in should be done for each job in the organization.the organization.

Job analysis can be done by:Job analysis can be done by:–Observe current workers.Observe current workers.–Questionnaires filled out by worker and Questionnaires filled out by worker and

managers.managers.

Current trends are toward flexible jobs where Current trends are toward flexible jobs where duties are not easily defined in advance.duties are not easily defined in advance.

Reliability & ValidityReliability & ValiditySelection tools must be reliable and valid.Selection tools must be reliable and valid.

Reliability:Reliability: the degree to which the tool measures the degree to which the tool measures the same thing each time it is used.the same thing each time it is used.

– Scores should be close for the same person Scores should be close for the same person taking the same test over time.taking the same test over time.

Validity:Validity: Does the test measure what it is Does the test measure what it is supposed to measure?supposed to measure?

– Example: does a physical ability test really Example: does a physical ability test really predict the job performance of a firefighter?predict the job performance of a firefighter?

Managers have an ethical and legal duty to Managers have an ethical and legal duty to develop good selection tools.develop good selection tools.

Looking for the SKAsLooking for the SKAs

Skills,Skills,

Knowledge, andKnowledge, and

Abilities Abilities neededneeded to succeed in a specific to succeed in a specific job.job.

Proper screening tests and devices will Proper screening tests and devices will reduce or eliminate an employer’s risk to reduce or eliminate an employer’s risk to disparate impact claims.disparate impact claims.

Employer ReferencesEmployer ReferencesAs we observed recently, the “free flow of information about performance helps

prospective employees, prospective employers, and the economy in general.” Passmore v. Multi-Management Serv., 810 N.E.2d 1022, 1027 (Ind.2004) (former employer sued for failing to tell future employer about rumors concerning employee). Liability arising out of employment references “poses rather more complex competing policies.” Id. (citing Susan Oliver, Opening the Channels of Communication Among Employers, Can Employers Discard Their “No Comment” and Neutral Job References Policies?, 33 Val. U.L.Rev. 687 (1999)).

Attempting a balanced approach to these competing interests, Indiana recognizes a qualified privilege for communications between former and prospective employers. Chambers v. Am. Trans Air Inc., 577 N.E.2d 612, 615-16 (Ind.Ct.App.1991). Like the privilege afforded intra-company communications, that privilege protects human resource needs by permitting former employers “to give sincere yet critical responses to requests for an appraisal of a prospective employee's qualifications” without fear of a defamation action. Id. at 615. That privilege may be overcome by showing some abuse of the privilege, such as actual or express malice. Id. at 616.

Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130Ind. (2006)

Polygraph Protection ActPolygraph Protection Act

Prohibits:Prohibits:

1.1. Requiring or causing employees to take lie Requiring or causing employees to take lie detector tests;detector tests;

2.2. Using the results of a lie detector tests; and Using the results of a lie detector tests; and

3.3. Taking negative action as a result of a lie Taking negative action as a result of a lie detector tests.detector tests.

Exceptions: police, people dealing with $$, Exceptions: police, people dealing with $$, certain security personnel.certain security personnel.

Exceptions to Polygraph Protection Exceptions to Polygraph Protection ActAct

Given in conjunction with ongoing Given in conjunction with ongoing investigation.investigation.

The employee had access to the lost The employee had access to the lost property.property.

Employer has reasonable suspicion that the Employer has reasonable suspicion that the employee is the culprit.employee is the culprit.

The employee is provided with a statement The employee is provided with a statement of the loss and the basis of suspicion.of the loss and the basis of suspicion.

Drug ScreeningDrug Screening

For private employers there is no 4For private employers there is no 4thth Amendment Amendment or other constitutional issues.or other constitutional issues.Look to your state law for prohibition or regulation Look to your state law for prohibition or regulation on drug testing.on drug testing.Government employers must be cognizant of USC Government employers must be cognizant of USC issues:issues:

1.1. Articulable suspicionArticulable suspicion2.2. Safety sensitive employeesSafety sensitive employees

Watch out for tort traps such as false Watch out for tort traps such as false imprisonment, IIED, defamation, & wrongful imprisonment, IIED, defamation, & wrongful termination.termination.

Workplace Drug TestingWorkplace Drug Testing

Employees have sued employers for Employees have sued employers for Intentional Infliction of Intentional Infliction of Emotional Distress (IIED)Emotional Distress (IIED), , BatteryBattery and and Wrongful DischargeWrongful Discharge and and DefamationDefamation. The courts have held that when a collective . The courts have held that when a collective bargaining agreement provides for employee drug-testing, and the bargaining agreement provides for employee drug-testing, and the IIED and the Defamation claim(s) are “inextricably intertwined” or IIED and the Defamation claim(s) are “inextricably intertwined” or “substantially dependent” on the collective bargaining agreement “substantially dependent” on the collective bargaining agreement terms, they are pre-empted by § 301 of the Labor Management terms, they are pre-empted by § 301 of the Labor Management Relations Act. [i] Employers can be held liable if an employer Relations Act. [i] Employers can be held liable if an employer makes defamatory statements to individuals outside the scope of makes defamatory statements to individuals outside the scope of the employer’s collective bargaining agreement. [ii] the employer’s collective bargaining agreement. [ii]

[i] [i] Meier v. Hamilton Standard Electric Systems, Inc.Meier v. Hamilton Standard Electric Systems, Inc., 748 F. Supp. , 748 F. Supp. 296 (ED Pa 1990); 296 (ED Pa 1990); Chube v. Exxon Chemical AmericasChube v. Exxon Chemical Americas 769 F. 769 F. Supp. 557 (MD La 1991); Supp. 557 (MD La 1991); Spietz v. Kaiser Aluminum & Chemical Spietz v. Kaiser Aluminum & Chemical Corp.Corp.,, 672 F. Supp. 1368 (WD Wash 1987).672 F. Supp. 1368 (WD Wash 1987).[ii] [ii] IdId..

Drug-Free WorkplaceDrug-Free Workplace

In 1986, President Reagan issued a Drug-Free Workplace In 1986, President Reagan issued a Drug-Free Workplace Executive Order that required federal agencies to take Executive Order that required federal agencies to take steps to eliminate drug abuse in the federal workplace. [i] steps to eliminate drug abuse in the federal workplace. [i] Many state agencies and private organizations followed Many state agencies and private organizations followed the President’s drug-free workplace initiative by instituting the President’s drug-free workplace initiative by instituting drug awareness programs.drug awareness programs.The principal purpose of any drug awareness and testing The principal purpose of any drug awareness and testing program should not be to catch offenders, but rather to:program should not be to catch offenders, but rather to:promote personal well-being and safety,promote personal well-being and safety,deter first time and casual drug use, anddeter first time and casual drug use, andencourage those who are in rehabilitation not to relapse.encourage those who are in rehabilitation not to relapse.

[i] [i] Drug-Free Federal WorkplaceDrug-Free Federal Workplace, Exec. Order No. 12,564, , Exec. Order No. 12,564, 51 Fed. Reg. 32,899 (1986).51 Fed. Reg. 32,899 (1986).

Last Chance Agreements (“LCA”)Last Chance Agreements (“LCA”)In general, last chance agreements are probationary In general, last chance agreements are probationary

contracts negotiated by an employer with an employee contracts negotiated by an employer with an employee who faces termination or serious discipline. The who faces termination or serious discipline. The employer agrees not to execute the discipline, and the employer agrees not to execute the discipline, and the employee promises to rehabilitate his or her employee promises to rehabilitate his or her performance in definite ways. Last chance agreements performance in definite ways. Last chance agreements usually contain a clause by which the employee waives usually contain a clause by which the employee waives his or her right to any administrative disciplinary appeal if his or her right to any administrative disciplinary appeal if the employee violates the agreement within a distinct the employee violates the agreement within a distinct timeframe.timeframe.

Enforceability of LCAEnforceability of LCAThe courts have found: 1) employees may voluntarily waive The courts have found: 1) employees may voluntarily waive

their statutory rights; 2) the fact that an employee may their statutory rights; 2) the fact that an employee may face serious discipline or termination does not nullify the face serious discipline or termination does not nullify the voluntariness of the agreement; 3) employers may not voluntariness of the agreement; 3) employers may not illegally discriminate, negotiate in bad faith, abuse illegally discriminate, negotiate in bad faith, abuse discretion or engage in prohibited personnel practices; 4) discretion or engage in prohibited personnel practices; 4) employers must inform the employee of the alternatives employers must inform the employee of the alternatives and consequences of the agreement and not misstate the and consequences of the agreement and not misstate the employees options; 5) to avoid findings of unfair arbitrary employees options; 5) to avoid findings of unfair arbitrary and capricious agreements, the agreements should not and capricious agreements, the agreements should not be open ended (usually one year) and be directed be open ended (usually one year) and be directed towards correcting the employee’s specific behaviors, towards correcting the employee’s specific behaviors, conduct and derivative unsatisfactory performance; and conduct and derivative unsatisfactory performance; and 6) there must be review for determining whether the 6) there must be review for determining whether the agreement was breached by the employee.agreement was breached by the employee.

Affirmative Action (“AA”): Life in the Affirmative Action (“AA”): Life in the 60s60s

Oppression of the Rights of Women and Oppression of the Rights of Women and Minorities.Minorities.

Right to Vote.Right to Vote. Restriction of First Amendment Rights: Restriction of First Amendment Rights:

Free Speech / Right to Protest.Free Speech / Right to Protest.

Discrimination.Discrimination.

Separation of Races.Separation of Races.

Violence.Violence.

Why AA?Why AA?

Employers were much more likely to Employers were much more likely to employ a white than a minority.employ a white than a minority.

Minorities usually had only the most Minorities usually had only the most menial of jobs open to them.menial of jobs open to them.

Minorities and women were often paid Minorities and women were often paid lower wages, even if their work was lower wages, even if their work was better than their white counterparts’.better than their white counterparts’.

Civil Rights Act of 1964Civil Rights Act of 1964

Title ITitle I Equal Voting Rights.Equal Voting Rights.

Title IITitle II Outlawed Discrimination in Public Places Engaged in Interstate Outlawed Discrimination in Public Places Engaged in Interstate

Commerce.Commerce.

Title IIITitle III Encouraged and Provided a Means for the Desegregation of Public Encouraged and Provided a Means for the Desegregation of Public

Schools.Schools.

Title IVTitle IV Authorized Withdrawal of Funds from Programs Practicing Authorized Withdrawal of Funds from Programs Practicing

Discrimination.Discrimination.

Title VTitle V Outlawed Employment Discrimination; Created Equal Employment Outlawed Employment Discrimination; Created Equal Employment

Opportunities Commission.Opportunities Commission.

What is AA?What is AA?

A common misunderstanding: Reservation of certain A common misunderstanding: Reservation of certain

facilities to ‘under-privileged’ minorities.facilities to ‘under-privileged’ minorities.

What it What it reallyreally means:means: Title VII of the 1964 Civil Rights Act states that: “703 (j) Title VII of the 1964 Civil Rights Act states that: “703 (j)

Nothing contained in this title shall be interpreted to Nothing contained in this title shall be interpreted to require any employer… to grant preferential treatment to require any employer… to grant preferential treatment to any individual or to any group because of the race, color, any individual or to any group because of the race, color, religion, sex, or national origin group on account of any religion, sex, or national origin group on account of any imbalance which may exist with respect to the total imbalance which may exist with respect to the total number or percentage of persons of any race, color, number or percentage of persons of any race, color, religion, sex, or national origin by any employer…”religion, sex, or national origin by any employer…”

Executive Order 11246, 29 Fed. Reg. Executive Order 11246, 29 Fed. Reg. 24772477

Requires government contractors to make Requires government contractors to make good faith efforts to recruit, hire and retain good faith efforts to recruit, hire and retain minority workers.minority workers.

Department of Labor has jurisdiction to Department of Labor has jurisdiction to review complaints.review complaints.

Why create AA?Why create AA?

The intended purpose of Affirmative Action is to The intended purpose of Affirmative Action is to

increase the opportunity for minority groups.increase the opportunity for minority groups.

““You do not take a person …bring him up to the You do not take a person …bring him up to the

starting line of a race and say, 'you are free to starting line of a race and say, 'you are free to

compete with all the others,' and still justly compete with all the others,' and still justly

believe that you have been completely fair.” –believe that you have been completely fair.” –

President Lyndon B. Johnson, 1965President Lyndon B. Johnson, 1965

AA = Reverse Discrimination?AA = Reverse Discrimination?

What does AA really mean?What does AA really mean?

1. Among qualified candidates (applicants, etc.), 1. Among qualified candidates (applicants, etc.), affirmative action means that the underrepresented affirmative action means that the underrepresented candidate(s) should get the nod; orcandidate(s) should get the nod; or2. Among equally qualified candidates, affirmative action 2. Among equally qualified candidates, affirmative action means that the underrepresented candidate should get means that the underrepresented candidate should get the nod; orthe nod; or3. Among unequally qualified candidates, affirmative 3. Among unequally qualified candidates, affirmative action means that underrepresented status serves as a action means that underrepresented status serves as a "plus factor" that may elevate an (otherwise) less "plus factor" that may elevate an (otherwise) less qualified candidate over (otherwise) more qualified qualified candidate over (otherwise) more qualified candidates; orcandidates; or4. Affirmative action means equality of opportunity as 4. Affirmative action means equality of opportunity as opposed to equality of outcome.opposed to equality of outcome.

Grutter v. Bollinger 539 U.S. 306 (2003).Grutter v. Bollinger 539 U.S. 306 (2003).

Affirmative action in law school admissions.Affirmative action in law school admissions.

Quotas based on race are illegal.Quotas based on race are illegal.

Diversity in education is a compelling interest.Diversity in education is a compelling interest.

Race can be a plus factor in selection, but not Race can be a plus factor in selection, but not only factor.only factor.

Race as a factor cannot continue indefinitely.Race as a factor cannot continue indefinitely.

Program must be narrowly tailored to achieve Program must be narrowly tailored to achieve diversity.diversity.

Sexual HarassmentSexual Harassment

Quid Pro Quo: Quid Pro Quo:

1.1. Strict liability for employers;Strict liability for employers;

2.2. Benefits in exchange for sexual favor;Benefits in exchange for sexual favor;

3.3. Occurs between subordinate and supervisor.Occurs between subordinate and supervisor.

Hostile work environment.Hostile work environment.

1.1. Unwanted conduct sexually offensive to cause a Unwanted conduct sexually offensive to cause a reasonable person interference with their ability reasonable person interference with their ability to do there job.to do there job.

2.2. Safe harbor provision for employers.Safe harbor provision for employers.

Sexual HarassmentSexual Harassment

Same gender sexual harassment is Same gender sexual harassment is actionable (actionable (Oncale v. Sundowner Offshore Oncale v. Sundowner Offshore Services, Inc.,Services, Inc., 523 U.S. 75 (1998)). 523 U.S. 75 (1998)).

Rehabilitation Act & Americans with Disabilities Act (“ADA”) Rehabilitation Act & Americans with Disabilities Act (“ADA”) 29 USCA §§ 706, 791-794 & 42 USCA § 1210129 USCA §§ 706, 791-794 & 42 USCA § 12101

Has a disability or is perceived to have a Has a disability or is perceived to have a disability;disability;

Otherwise qualified; andOtherwise qualified; and

Denied solely because of the disability.Denied solely because of the disability.

Reasonable accommodation.Reasonable accommodation.

Current use rule.Current use rule.

15 or more employees.15 or more employees.

ADAADA

In order to prevail, an ADA plaintiff must show that, In order to prevail, an ADA plaintiff must show that, at the time of the employment decision, she:at the time of the employment decision, she:

(1) had a disability,(1) had a disability,

(2) was otherwise qualified for the position from (2) was otherwise qualified for the position from which she was discharged, for which she was which she was discharged, for which she was denied employment, or to which she was denied denied employment, or to which she was denied promotion, andpromotion, and

(3) was discharged, denied employment, or denied (3) was discharged, denied employment, or denied promotion solely because of the disability.promotion solely because of the disability.

Health Benefits & ADAHealth Benefits & ADA

The ADA requires employers to provide disabled The ADA requires employers to provide disabled employees the same health insurance benefits employees the same health insurance benefits as their non-disabled co-workers.as their non-disabled co-workers.

An employer who fails to do so must show that An employer who fails to do so must show that disparate benefits are justified in order to disparate benefits are justified in order to (1) keep the benefits plan financially sound, (1) keep the benefits plan financially sound, (2) keep benefits affordable for employees (2) keep benefits affordable for employees without the excluded condition, or (3) account for without the excluded condition, or (3) account for the risks and costs associated with a particular the risks and costs associated with a particular condition.condition.

Disability Under the ADADisability Under the ADA

The ADA defines a “disability” asThe ADA defines a “disability” as(1) a mental or physical impairment that substantially limits (1) a mental or physical impairment that substantially limits

one or more major life activities (one or more major life activities (e.g.e.g., breathing, , breathing, speaking, seeing),speaking, seeing),

Courts have held that correctable conditions, such as Courts have held that correctable conditions, such as myopia, diabetes, or epilepsy, are not disabilities under myopia, diabetes, or epilepsy, are not disabilities under the ADA.the ADA.

The Supreme Court has also held that repetitive-stress The Supreme Court has also held that repetitive-stress injuries, such as carpal tunnel syndrome, are not injuries, such as carpal tunnel syndrome, are not disabilities.disabilities.

(2) a record of such impairment, or(2) a record of such impairment, or being regarded as having such an impairment.being regarded as having such an impairment.

Current Use & Threatening Current Use & Threatening Behavior Under the ADABehavior Under the ADA

The ADA The ADA doesdoes notnot require employers to hire or require employers to hire or retain applicants or employees whose disabilities retain applicants or employees whose disabilities constitute a constitute a direct threatdirect threat to the health and safety to the health and safety of co-workers or customers.of co-workers or customers.

Employers need not hire or retain applicants or Employers need not hire or retain applicants or employees who currently abuse drugs or employees who currently abuse drugs or alcohol. However, an employer may not refuse alcohol. However, an employer may not refuse to hire or retain an applicant or employee based to hire or retain an applicant or employee based on her on her historyhistory of abuse or addiction. of abuse or addiction.

ADA: Reasonable AccommodationADA: Reasonable Accommodation

If an otherwise qualified disabled job applicant or If an otherwise qualified disabled job applicant or employee can, with employee can, with reasonable accommodationreasonable accommodation, perform , perform essential job functions, the employer must make essential job functions, the employer must make accommodations, such asaccommodations, such as

installing wheelchair ramps,installing wheelchair ramps, establishing flexible working hours,establishing flexible working hours, modifying job assignments,modifying job assignments, reassigning nonessential functions, andreassigning nonessential functions, and creating and improving training materials and methods,creating and improving training materials and methods,unless doing so would create an unless doing so would create an undue hardshipundue hardship for the for the

employer.employer.

ADA: Undue HardshipADA: Undue Hardship

Undue Hardship: An employer may not be Undue Hardship: An employer may not be required to accommodate a particular required to accommodate a particular employee’s or applicant’s disability if doing employee’s or applicant’s disability if doing so would cause the employer “significant so would cause the employer “significant difficulty or expense.”difficulty or expense.”Accommodation is only required if it would Accommodation is only required if it would enable the applicant or employee to enable the applicant or employee to perform the essential functions of the job perform the essential functions of the job now or in the immediate future.now or in the immediate future.

General Discrimination DefensesGeneral Discrimination Defenses

Once a plaintiff establishes that discrimination has occurred, the Once a plaintiff establishes that discrimination has occurred, the burden shifts to the employer to justify the discriminatory policy or burden shifts to the employer to justify the discriminatory policy or practice. Common defenses include:practice. Common defenses include:

Business Necessity:Business Necessity: The discriminatory policy or practice is The discriminatory policy or practice is related to job performance (related to job performance (e.g.e.g., a law degree is a prerequisite to , a law degree is a prerequisite to acting as a lawyer, notwithstanding that minorities are less likely to acting as a lawyer, notwithstanding that minorities are less likely to hold law degrees).hold law degrees).

Bona Fide Occupational QualificationBona Fide Occupational Qualification (“BOFQ”): (“BOFQ”): Identifiable Identifiable characteristics – such as gender, national origin, or religious belief – characteristics – such as gender, national origin, or religious belief – are reasonably necessary to the normal operation of a business are reasonably necessary to the normal operation of a business ((e.g.e.g., a men’s swimwear company may hire only male models)., a men’s swimwear company may hire only male models).

Seniority:Seniority: The employer has in place a system in which those who The employer has in place a system in which those who have worked longest for the company are first in line for promotions, have worked longest for the company are first in line for promotions, raises, and other benefits, and those with the least seniority are the raises, and other benefits, and those with the least seniority are the first to be laid off if the work force must be reduced.first to be laid off if the work force must be reduced.

Fair Labor Standards Act (“FLSA”)Fair Labor Standards Act (“FLSA”)

Child LaborChild Labor

OvertimeOvertime

Minimum WageMinimum Wage

Record KeepingRecord Keeping

FLSAFLSA

There are a number of employment practices There are a number of employment practices which the FLSA does not regulate. For which the FLSA does not regulate. For example, the FLSA does not require: example, the FLSA does not require:

(1)(1) vacation, holiday, severance, or sick pay; vacation, holiday, severance, or sick pay; (2)(2) meal or rest periods, holidays off, or vacations; meal or rest periods, holidays off, or vacations; (3)(3) premium pay for weekend or holiday work; premium pay for weekend or holiday work; (4)(4) pay raises or fringe benefits; pay raises or fringe benefits; (5)(5) a discharge notice, reason for discharge, or a discharge notice, reason for discharge, or

immediate payment of final wages to immediate payment of final wages to terminated employees; and terminated employees; and

(6)(6) pay stubs or "W-2"s.pay stubs or "W-2"s.

FLSA: YouthFLSA: Youth14 years old is the minimum age for non-agricultural employment 14 years old is the minimum age for non-agricultural employment covered by the FLSA. covered by the FLSA. Youth Youth 16 or 17 years old16 or 17 years old may perform any non-hazardous job for may perform any non-hazardous job for unlimited hours. unlimited hours. Youth Youth 14 and 15 years old14 and 15 years old may work outside school hours in may work outside school hours in various non-manufacturing, non-mining, non-hazardous jobs. They various non-manufacturing, non-mining, non-hazardous jobs. They cannot work: cannot work: More than 3 hours a day on school days, including Fridays; More than 3 hours a day on school days, including Fridays; More than 18 hours per week in school weeks; More than 18 hours per week in school weeks; More than 8 hours a day on non-school days; More than 8 hours a day on non-school days; More than 40 hours per week when school is not in session. More than 40 hours per week when school is not in session. Also, 14- and 15-year-olds may not work before 7:00 a.m., nor after Also, 14- and 15-year-olds may not work before 7:00 a.m., nor after 7:00 p.m., except from June 1 through Labor Day, when their 7:00 p.m., except from June 1 through Labor Day, when their permissible hours are extended to 9:00 p.m. Under a special permissible hours are extended to 9:00 p.m. Under a special provision, youth 14 and 15 years old who are enrolled in an provision, youth 14 and 15 years old who are enrolled in an approved Work Experience and Career Exploration Program may approved Work Experience and Career Exploration Program may be employed for up to 23 hours during school weeks and 3 hours on be employed for up to 23 hours during school weeks and 3 hours on school days (including during school hours).school days (including during school hours).

FLSA: OvertimeFLSA: Overtime

Except for public safety employees Except for public safety employees anything over 40 hours in a work-week for anything over 40 hours in a work-week for non-exempt employees is compensated at non-exempt employees is compensated at 1.5 times the rate of pay or in comp time.1.5 times the rate of pay or in comp time.

Exempt employees.Exempt employees.

FLSA: Exempt v. Non-exemptFLSA: Exempt v. Non-exempt

Most employers are covered by the FLSA, but Most employers are covered by the FLSA, but some employees are “exempt” from the overtime some employees are “exempt” from the overtime provisions of the act. To be “exempt,” employees provisions of the act. To be “exempt,” employees must meet both of two separate tests: 1) duties must meet both of two separate tests: 1) duties test; and 2) salary basis test. Non-exempt test; and 2) salary basis test. Non-exempt employees must be paid overtime for all hours employees must be paid overtime for all hours worked over 40 in one workweek; exempt worked over 40 in one workweek; exempt employees do not earn overtime. Being employees do not earn overtime. Being “salaried” does not mean the same thing as “salaried” does not mean the same thing as being “exempt.” With a few exceptions (e.g., being “exempt.” With a few exceptions (e.g., doctors, lawyers), any employee who does not doctors, lawyers), any employee who does not earn $455/week will be considered non-exempt.earn $455/week will be considered non-exempt.

FLSA: Duties TestFLSA: Duties Test

There are generally four types of There are generally four types of exemptions used by cities. Employees exemptions used by cities. Employees must meet the criteria outlined in one of must meet the criteria outlined in one of the following four exemptions (the following four exemptions (Executive, Executive, Administrative, Professional and Administrative, Professional and ComputerComputer) in order to meet the “duties” ) in order to meet the “duties” test and be considered exempt. test and be considered exempt.

FLSA: ExecutiveFLSA: Executive

Executive dutiesExecutive duties. . Executive employees must: Executive employees must: – Be paid at least $455 per week on a salary basis; Be paid at least $455 per week on a salary basis; – Have the primary duty of “managing” the enterprise Have the primary duty of “managing” the enterprise

or a customarily recognized “department or or a customarily recognized “department or subdivision” of the organization; subdivision” of the organization;

– Regularly supervise two or more employees (at least Regularly supervise two or more employees (at least 80 hours worth of employee work per week); and 80 hours worth of employee work per week); and

– Have the authority to hire or fire other employees or Have the authority to hire or fire other employees or have their recommendations on hiring/firing, have their recommendations on hiring/firing, advancement, promotion or other change of status advancement, promotion or other change of status decisions be given “particular weight.” decisions be given “particular weight.”

FLSA: AdministrativeFLSA: Administrative

Administrative dutiesAdministrative duties. . Administrative employees Administrative employees must: must: – Be paid at least $455 per week on a salary basis; Be paid at least $455 per week on a salary basis; – Have the primary duty of performing office or non-Have the primary duty of performing office or non-

manual work directly related to the management or manual work directly related to the management or general business operations of the employer (the general business operations of the employer (the city). city).

– The office or non-manual work must require the The office or non-manual work must require the exercise of discretion and independent judgment on exercise of discretion and independent judgment on significant matters.significant matters.

FLSA: ProfessionalFLSA: Professional

Professional exemptionProfessional exemption. . Professional Professional employees must: employees must: – Be paid at least $455 per week on a salary Be paid at least $455 per week on a salary

basis and: basis and: – Primarily perform work that requires Primarily perform work that requires

knowledge of an advanced type in a field of knowledge of an advanced type in a field of science or learning (“learned professionals”) science or learning (“learned professionals”) or work that requires invention, imagination, or work that requires invention, imagination, originality or talent in a recognized artistic or originality or talent in a recognized artistic or creative field (“creative professionals”). creative field (“creative professionals”).

FLSA: ITFLSA: ITComputer ExemptionComputer Exemption: Computer employees must: : Computer employees must:

– Be paid at least $455 per week on a salary basis or Be paid at least $455 per week on a salary basis or at least $27.63 per hour and: at least $27.63 per hour and:

– Perform work in the area of computer systems Perform work in the area of computer systems analysis, computer programming, or computer analysis, computer programming, or computer software engineering. The employee must have a software engineering. The employee must have a primary duty consisting of: primary duty consisting of:

- Using systems analysis techniques and procedures to - Using systems analysis techniques and procedures to determine hardware, software or system functional determine hardware, software or system functional specifications; specifications; - Designing, developing, documenting, analyzing, creating, - Designing, developing, documenting, analyzing, creating, testing or modifying computer systems or programs based testing or modifying computer systems or programs based on and related to user or system design specifications; on and related to user or system design specifications; - Designing, documenting, testing, creating or modifying - Designing, documenting, testing, creating or modifying computer programs related to machine operating systems; or computer programs related to machine operating systems; or - A combination of the above duties requiring the same level - A combination of the above duties requiring the same level of skills. of skills.

FLSA: Combination of DutiesFLSA: Combination of Duties

Combination exemption. Combination exemption. Employees who Employees who perform a combination of various types of perform a combination of various types of exempt duties may qualify for exemption if exempt duties may qualify for exemption if the exempt duties, taken altogether, the exempt duties, taken altogether, comprise the employee’s primary duty. comprise the employee’s primary duty. However, the employee must still be paid However, the employee must still be paid at least $455 per week on a salary basis. at least $455 per week on a salary basis.

FLSA: Highly CompensatedFLSA: Highly CompensatedHighly-compensated employees. Highly-compensated employees. An employee An employee

who earns $100,000/year is exempt if the who earns $100,000/year is exempt if the employee regularly performs any one or more of employee regularly performs any one or more of the exempt duties or responsibilities of an the exempt duties or responsibilities of an executive, administrative or professional executive, administrative or professional employee. The employee must meet the salary employee. The employee must meet the salary basis test and be paid at least $455/week on a basis test and be paid at least $455/week on a salary basis. Fringe benefits may not be counted salary basis. Fringe benefits may not be counted towards the $100,000/year amount. This towards the $100,000/year amount. This exemption applies only to employees whose exemption applies only to employees whose primary duty includes performing office or non-primary duty includes performing office or non-manual work. Therefore, employees who manual work. Therefore, employees who perform physical work such as maintenance perform physical work such as maintenance workers and laborers do not qualify for this workers and laborers do not qualify for this exemption, no matter how much they earn.exemption, no matter how much they earn.

FLSA: Minimum WageFLSA: Minimum Wage

Federal Minimum WageFederal Minimum Wage

$5.85 - July 24th, 2007$5.85 - July 24th, 2007$6.55 - July 24th, 2008$6.55 - July 24th, 2008$7.25 - July 24th, 2009$7.25 - July 24th, 2009

Age Discrimination in Employment Act (“ADEA”)Age Discrimination in Employment Act (“ADEA”)29 USCA § 62129 USCA § 621

Discrimination on basis of age against Discrimination on basis of age against persons 40 or older; andpersons 40 or older; and

Mandatory retirement for non-managerial Mandatory retirement for non-managerial employees.employees.

Public safety exception.Public safety exception.

Similar to Title VII protection, but distinct Similar to Title VII protection, but distinct enforcement mechanisms.enforcement mechanisms.

20 or more employees.20 or more employees.

ADEAADEAIn order to prevail, an ADEA plaintiff must show In order to prevail, an ADEA plaintiff must show

that, at the time of the employment decision, he that, at the time of the employment decision, he was:was:

(1) a member of the protected age group,(1) a member of the protected age group,(2) qualified for the position from which he was (2) qualified for the position from which he was

discharged, for which he was denied discharged, for which he was denied employment, or to which he was denied employment, or to which he was denied promotion, andpromotion, and

(3) discharged, denied employment, or denied (3) discharged, denied employment, or denied promotion under circumstances creating a promotion under circumstances creating a reasonable inference of discrimination (reasonable inference of discrimination (e.g.e.g., the , the position was filled by a person younger than 40).position was filled by a person younger than 40).

Federal Uniformed Services Employment Federal Uniformed Services Employment and Reemployment Rights Act of 1994 and Reemployment Rights Act of 1994

("USERRA")("USERRA")USERRA generally requires employers to USERRA generally requires employers to

reemploy and preserve certain job benefits for reemploy and preserve certain job benefits for "qualified" employees who engage in military "qualified" employees who engage in military service. The law, codified at 38 U.S.C. § 4301, service. The law, codified at 38 U.S.C. § 4301, also prevents an employer from discriminating also prevents an employer from discriminating against employees because of their service and against employees because of their service and obligations relating to the United States' obligations relating to the United States' uniformed services. USERRA establishes the uniformed services. USERRA establishes the time frames and requirements for reemployment time frames and requirements for reemployment rights and benefit preservation rights, and it also rights and benefit preservation rights, and it also defines who is a “qualified” employee for defines who is a “qualified” employee for purposes of these rights. purposes of these rights.

Occupational Safety & Health Occupational Safety & Health Administration (OSHA)Administration (OSHA)

Workplace safety standards.Workplace safety standards.

Conduct inspections.Conduct inspections.

Investigate employee complaints.Investigate employee complaints.

Employers must report all workplace Employers must report all workplace fatalities and any incident involving 5 or fatalities and any incident involving 5 or more injured employees.more injured employees.

Employers can be fined or imprisoned for Employers can be fined or imprisoned for failure to comply with OSHA regulations.failure to comply with OSHA regulations.

OSHA: Administrative Search WarrantOSHA: Administrative Search Warrant“ “ Requiring warrants to make OSHA inspections will impose Requiring warrants to make OSHA inspections will impose

no serious burdens on the inspection system or the no serious burdens on the inspection system or the courts. The advantages of surprise through the courts. The advantages of surprise through the opportunity of inspecting without prior notice will not be opportunity of inspecting without prior notice will not be lost if, after entry to an inspector is refused, an lost if, after entry to an inspector is refused, an ex parteex parte warrant can be obtained, facilitating an inspector's warrant can be obtained, facilitating an inspector's reappearance at the premises without further notice; and reappearance at the premises without further notice; and appellant Secretary's entitlement to a warrant will not appellant Secretary's entitlement to a warrant will not depend on his demonstrating probable cause to believe depend on his demonstrating probable cause to believe that conditions on the premises violate OSHA, but that conditions on the premises violate OSHA, but merely that reasonable legislative or administrative merely that reasonable legislative or administrative standards for conducting an inspection are satisfied with standards for conducting an inspection are satisfied with respect to a particular establishment” (respect to a particular establishment” (Marshall v. Barlow's, Marshall v. Barlow's, Inc.,Inc., 436 U.S. 307 (1978)). 436 U.S. 307 (1978)).

Workers’ CompensationWorkers’ CompensationThe Worker’s Compensation Board has exclusive The Worker’s Compensation Board has exclusive

jurisdiction to hear claims for personal injury or death by jurisdiction to hear claims for personal injury or death by accident arising out of and in the course of employment. accident arising out of and in the course of employment. Worker’s compensation provides limited benefits to Worker’s compensation provides limited benefits to injured workers in the form of: injured workers in the form of:

1.) medical treatment, 1.) medical treatment, 2.) compensation for lost wages, and 2.) compensation for lost wages, and 3.) compensation for the loss or loss of use of parts of the 3.) compensation for the loss or loss of use of parts of the

body. These are the only benefits an injured employee body. These are the only benefits an injured employee may be entitled to under the Acts, unless they are may be entitled to under the Acts, unless they are rendered permanently and totally disabled. If an rendered permanently and totally disabled. If an employee dies in a workplace accident, the employee’s employee dies in a workplace accident, the employee’s dependents may become eligible to collect certain death dependents may become eligible to collect certain death benefits.benefits.

Exclusive Remedy RuleExclusive Remedy Rule

In Indiana, worker's compensation is the employee's In Indiana, worker's compensation is the employee's "exclusive remedy" against the employer where there is "exclusive remedy" against the employer where there is personal injury or death by accident arising out of and in personal injury or death by accident arising out of and in the course of employment. In other words, if there is the course of employment. In other words, if there is personal injury, accidentally caused, from arising out of personal injury, accidentally caused, from arising out of and in the course of employment, the employee must and in the course of employment, the employee must pursue any legal claim against the employer through the pursue any legal claim against the employer through the worker’s compensation system. Ind. Code §22-3-2-6.worker’s compensation system. Ind. Code §22-3-2-6.The Worker’s Compensation Act The Worker’s Compensation Act does notdoes not bar lawsuits bar lawsuits against parties (other than the employer or co-against parties (other than the employer or co-employees) who are responsible for work related injuries employees) who are responsible for work related injuries or who cause injuries independent of those covered in or who cause injuries independent of those covered in the Act. the Act.

Intentional InjuriesIntentional Injuries

Intentional InjuriesIntentional Injuries by the Employer by the Employer are not are not considered to occur “by accident” in Indiana and considered to occur “by accident” in Indiana and therefore would not be covered. The worker therefore would not be covered. The worker might have cause for a civil lawsuit in such a might have cause for a civil lawsuit in such a situation. However, this kind of case is situation. However, this kind of case is extremely rare because the injury would have to extremely rare because the injury would have to be caused be caused by the employer itselfby the employer itself, not merely by , not merely by a manager, supervisor or foreman. a manager, supervisor or foreman.

Injuries intentionally caused by managersInjuries intentionally caused by managers, , supervisors, or foremen are generally covered supervisors, or foremen are generally covered by worker’s compensation.by worker’s compensation.

Assaults & HorseplayAssaults & HorseplayCo-Employee Assaults.Co-Employee Assaults. The aggressor, if The aggressor, if injured, is usually considered to be outside of injured, is usually considered to be outside of the course of employment. The innocent victim the course of employment. The innocent victim of an assault by a fellow employee is generally of an assault by a fellow employee is generally covered.covered.Horseplay.Horseplay. A worker injured while participating in A worker injured while participating in horseplay is not entitled to worker's horseplay is not entitled to worker's compensation unless he is an innocent victim of compensation unless he is an innocent victim of another person’s horseplay. However, if the another person’s horseplay. However, if the employer acquiesces in the horseplay (allows employer acquiesces in the horseplay (allows the horseplay to proceed without intervening), the horseplay to proceed without intervening), the injury may be compensable.the injury may be compensable.

Other InjuriesOther Injuries

Repetitive TraumaRepetitive Trauma injuries such as Carpal injuries such as Carpal Tunnel Syndrome may be compensable in Tunnel Syndrome may be compensable in Indiana, if they can be medically shown to arise Indiana, if they can be medically shown to arise out of and in the course of employment.out of and in the course of employment.

Personal NeedsPersonal Needs.. Activities undertaken for the Activities undertaken for the employee's personal needs, comfort, and employee's personal needs, comfort, and convenience are considered within the course of convenience are considered within the course of employment. In other words, injuries occurring employment. In other words, injuries occurring when the employees get up to get a drink or a when the employees get up to get a drink or a snack, to stretch, or to go to the bathroom, are snack, to stretch, or to go to the bathroom, are probably covered.probably covered.

Parking LotsParking Lots

Parking Lot InjuriesParking Lot Injuries in parking lots owned in parking lots owned by the employer are generally considered by the employer are generally considered to be covered, even if the accident occurs to be covered, even if the accident occurs before the employee clocks in or after the before the employee clocks in or after the employee clocks out.employee clocks out.Ingress and Egress.Ingress and Egress. The time required to The time required to enter and exit the employment premises is enter and exit the employment premises is generally covered. Injuries occurring in generally covered. Injuries occurring in employee parking lots are generally within employee parking lots are generally within the course of employment.the course of employment.

To & From WorkTo & From Work

To and From Employment.To and From Employment. Employees are Employees are generally generally notnot covered while traveling to and from covered while traveling to and from work, if the place of employment is at a fixed work, if the place of employment is at a fixed location. However, travel to remote work sites location. However, travel to remote work sites may be compensable. If an employee is injured may be compensable. If an employee is injured while being transported to or from work or work while being transported to or from work or work sites in vehicles provided by the employer, they sites in vehicles provided by the employer, they are probably covered. Accidents occurring while are probably covered. Accidents occurring while traveling to or from work in the employee’s traveling to or from work in the employee’s personal vehicle may be covered if the travel is personal vehicle may be covered if the travel is required for work, such as home solicitations. required for work, such as home solicitations.

Deviation From RouteDeviation From RouteDeviation from Route.Deviation from Route. If the employee deviates If the employee deviates

from work activities and an injury occurs, the from work activities and an injury occurs, the injury may not be considered to arise in the injury may not be considered to arise in the course of employment. If the employee deviates course of employment. If the employee deviates from a route for personal reasons, even if the from a route for personal reasons, even if the employee is on company time, or in a company employee is on company time, or in a company vehicle, the employee might be considered vehicle, the employee might be considered outside of the course of employment. However, outside of the course of employment. However, as soon as the employee returns from the as soon as the employee returns from the deviation, he or she is back in the course of deviation, he or she is back in the course of employment.employment.

Lunch Breaks & On-callLunch Breaks & On-callLunch Period.Lunch Period. A very general rule on injuries A very general rule on injuries occurring on an employee’s lunch hour is that occurring on an employee’s lunch hour is that the employee is covered while eating lunch on the employee is covered while eating lunch on the employer’s premises and at a place the employer’s premises and at a place generally considered safe with employer’s generally considered safe with employer’s consent. But if the employee leaves the consent. But if the employee leaves the premises for lunch, coverage ceases unless the premises for lunch, coverage ceases unless the employee leaves at the direction of the employee leaves at the direction of the employer.employer.On-Call EmployeesOn-Call Employees summoned to work are summoned to work are generally considered to be in the course of generally considered to be in the course of employment. employment.

Company EventsCompany EventsRecreational Activities, Employer-Recreational Activities, Employer-

Sponsored Parties.Sponsored Parties. Injuries occurring at Injuries occurring at recreational activities connected with the recreational activities connected with the employment where attendance is employment where attendance is encouraged or mandatory may be encouraged or mandatory may be compensable where the activity is compensable where the activity is sponsored by the employer, and where the sponsored by the employer, and where the event produces some benefit to the event produces some benefit to the employer. Injuries may not be employer. Injuries may not be compensable if the activity is undertaken compensable if the activity is undertaken voluntarily by the employee.voluntarily by the employee.

Employer’s Affirmative DefensesEmployer’s Affirmative DefensesThe employer may utilize the following defenses where the The employer may utilize the following defenses where the

employee’s injury or death isemployee’s injury or death is due todue to the employee's knowingly self-inflicted injury, the employee's knowingly self-inflicted injury,due todue to intoxication, intoxication,due todue to the commission of an offense (not including traffic the commission of an offense (not including traffic infractions),infractions),due todue to a a knowingknowing failure to use a safety appliance failure to use a safety appliancedue todue to a a knowingknowing failure to obey a failure to obey a reasonable written or reasonable written or printedprinted safety rule which has been posted in a safety rule which has been posted in a conspicuous position in the place of work, orconspicuous position in the place of work, ordue todue to a a knowing knowing failure to perform any statutory duty.failure to perform any statutory duty.

In asserting these defenses, the employer has the In asserting these defenses, the employer has the burden burden of proving of proving that the misconduct that the misconduct causedcaused the employee's the employee's injuries. injuries.

Temporary Total Disability (“TTD”)Temporary Total Disability (“TTD”)

TTD is paid for the time period an employee TTD is paid for the time period an employee is completely unable to perform his or her is completely unable to perform his or her regular work because of an injury. TTD is regular work because of an injury. TTD is paid at the rate of two-thirds (2/3) of the paid at the rate of two-thirds (2/3) of the employee’s pre-injury average weekly employee’s pre-injury average weekly wage, subject to a maximum period of 500 wage, subject to a maximum period of 500 weeks. Ind. Code §22-3-3-8; Ind. Code weeks. Ind. Code §22-3-3-8; Ind. Code §22-3-3-22. §22-3-3-22.

Temporary Partial Disability (“TPD”)Temporary Partial Disability (“TPD”)

TPD is paid when the employee is partially unable TPD is paid when the employee is partially unable to work for the employer the employee was to work for the employer the employee was working for at the time of his injury. For working for at the time of his injury. For example, an employee’s injuries might limit the example, an employee’s injuries might limit the number of hours she is able to work, or might number of hours she is able to work, or might mean that the employee is temporarily assigned mean that the employee is temporarily assigned to a job that pays less than her pre-injury job. to a job that pays less than her pre-injury job. TPD is paid at the rate of two-thirds (2/3) of the TPD is paid at the rate of two-thirds (2/3) of the difference between the employee’s pre- and difference between the employee’s pre- and post-injury average weekly wages, subject to a post-injury average weekly wages, subject to a maximum period of 300 weeks. Ind. Code §22-maximum period of 300 weeks. Ind. Code §22-3-3-9.3-3-9.

Permanent Total Disability (“PTD”)Permanent Total Disability (“PTD”)

PTD awards are paid when it is established that PTD awards are paid when it is established that the employee will never again be able to work in the employee will never again be able to work in reasonable employment. A PTD award is paid reasonable employment. A PTD award is paid for 500 weeks at the rate of two-thirds (2/3) of for 500 weeks at the rate of two-thirds (2/3) of the employee’s pre-injury average weekly wage. the employee’s pre-injury average weekly wage. Ind. Code §22-3-3-8; Ind. Code §22-3-3-10. On Ind. Code §22-3-3-8; Ind. Code §22-3-3-10. On and after July 1, 1997, awards for any and after July 1, 1997, awards for any combination of Permanent Total Disability, combination of Permanent Total Disability, Temporary Total Disability and Temporary Temporary Total Disability and Temporary Partial Disability are limited to a total of 500 Partial Disability are limited to a total of 500 weeks. weeks.

Maximum Medical Improvement Maximum Medical Improvement (“MMI”)(“MMI”)

An award of PPI can only be made after it is determined An award of PPI can only be made after it is determined that the employee has reached MMI may also be that the employee has reached MMI may also be referred to as “quiescence” or “permanence and referred to as “quiescence” or “permanence and quiescence.” Each of these phrases means that the quiescence.” Each of these phrases means that the injury has healed to the fullest extent possible and no injury has healed to the fullest extent possible and no further treatment would improve the employee’s further treatment would improve the employee’s condition. Another way of saying this is that the condition. Another way of saying this is that the employee is “as good as he is going to get” after employee is “as good as he is going to get” after treatment for the work-related accidental injury. At that treatment for the work-related accidental injury. At that time, disability compensation (TTD) will be terminated time, disability compensation (TTD) will be terminated and a PPI rating may be assessed by the treating and a PPI rating may be assessed by the treating physician or another doctor.physician or another doctor.

Income SecurityIncome Security

Unemployment insurance.Unemployment insurance.

Social SecuritySocial Security

Medicare.Medicare.

Pension Plans.Pension Plans.

COBRA (Employees’ right to participate in COBRA (Employees’ right to participate in medical insurance after employment.)medical insurance after employment.)

Unemployment insurance (“UI”)Unemployment insurance (“UI”)

Benefits are based upon total wages earned Benefits are based upon total wages earned during your base period. The minimum during your base period. The minimum amount paid per week in Indiana is $50, amount paid per week in Indiana is $50, while the maximum is currently $390. The while the maximum is currently $390. The highest quarter of your base period highest quarter of your base period determines your weekly amount. A determines your weekly amount. A claimant would need at least $9,250 in claimant would need at least $9,250 in their highest quarter to receive $390 per their highest quarter to receive $390 per week. Benefits are paid up to 26 weeks.week. Benefits are paid up to 26 weeks.

Base PeriodBase PeriodYour Your base period base period includes the first 4 of the includes the first 4 of the

last 5 completed calendar quarters before last 5 completed calendar quarters before the week you file an initial claim the week you file an initial claim application for a new benefit year. The application for a new benefit year. The wages you earned during this period of wages you earned during this period of time are used to determine if you qualify time are used to determine if you qualify for benefits and to calculate how much you for benefits and to calculate how much you can be paid. The last quarter worked is can be paid. The last quarter worked is called the lag quarter, and no wages from called the lag quarter, and no wages from that quarter count in your base period.that quarter count in your base period.

Wage CreditsWage Credits

To establish a valid claim, you must have To establish a valid claim, you must have total wage credits during your base period total wage credits during your base period that are equal to at least one and one-that are equal to at least one and one-fourth (1.25) multiplied by your highest fourth (1.25) multiplied by your highest quarter wages. You must also have base quarter wages. You must also have base period wages totaling at least $2,750, with period wages totaling at least $2,750, with $1,650 of those wages earned in the last $1,650 of those wages earned in the last six (6) months of the base period.six (6) months of the base period.

Eligibility Eligibility

You only qualify for UI benefits if you are You only qualify for UI benefits if you are unemployed unemployed through no fault of your through no fault of your ownown..

Just CauseJust Cause

If you were fired for “just cause” you may not qualify for If you were fired for “just cause” you may not qualify for benefits. Just cause includes, but is not limited to:benefits. Just cause includes, but is not limited to:

• • Giving false information on a job application,Giving false information on a job application,• • Knowingly breaking an employer’s rules,Knowingly breaking an employer’s rules,• • Unexcused absence or tardiness,Unexcused absence or tardiness,• • Purposely damaging the employer’s property,Purposely damaging the employer’s property,• • Refusal to obey employer instructions,Refusal to obey employer instructions,• • Reporting to work under the influence of drugs and/or Reporting to work under the influence of drugs and/or

alcohol,alcohol,• • Consuming drugs and/or alcohol on the job,Consuming drugs and/or alcohol on the job,• • Conduct that threatens the safety of others,Conduct that threatens the safety of others,• • Conviction and imprisonment for a serious crime, andConviction and imprisonment for a serious crime, and• • Breach of a duty you owed your employer.Breach of a duty you owed your employer.

QuittingQuitting

If you quit voluntarily without good, work-If you quit voluntarily without good, work-related reasons, you may not qualify for related reasons, you may not qualify for benefits. Good, work related reasons benefits. Good, work related reasons include, but are not limited toinclude, but are not limited to::

• • Your employer arbitrarily (unreasonably) Your employer arbitrarily (unreasonably) changes the terms or conditions of your changes the terms or conditions of your work,work,

• • Safety violations at your work site,Safety violations at your work site,• • Harassment, andHarassment, and• • Domestic or family violence.Domestic or family violence.

Looking for WorkLooking for WorkYour benefits could be denied or reduced if you:Your benefits could be denied or reduced if you:

• • Refuse a suitable offer of work,Refuse a suitable offer of work,

• • Fail to go to a job referral made by your local Fail to go to a job referral made by your local WorkOne Center,WorkOne Center,

• • Cannot show proof that you are actively Cannot show proof that you are actively searching for work according to work search searching for work according to work search requirements (Explained on page 16-17), orrequirements (Explained on page 16-17), or

• • You are temporarily not available for work due to You are temporarily not available for work due to illness, injury, leave of absence, or you are on illness, injury, leave of absence, or you are on suspension due to work-related misconduct.suspension due to work-related misconduct.

Suitable Work OfferSuitable Work Offer

An offer of work will be suitable if it is reasonably An offer of work will be suitable if it is reasonably similar in location, type of work, and pay to your similar in location, type of work, and pay to your previous work experience. The longer you previous work experience. The longer you remain unemployed, the more likely it becomes remain unemployed, the more likely it becomes that an offer of work will be considered suitable. that an offer of work will be considered suitable. You must be willing to expand your work search You must be willing to expand your work search beyond your normal trade or occupation and to beyond your normal trade or occupation and to accept work at a lower rate of pay in order to accept work at a lower rate of pay in order to remain eligible for benefits as the length of your remain eligible for benefits as the length of your unemployment grows.unemployment grows.

Family Medical Leave Act (“FMLA”)Family Medical Leave Act (“FMLA”)

12 weeks per 12 month period.12 weeks per 12 month period.Benefits continue during leave.Benefits continue during leave.Unless and exception exists, the employer Unless and exception exists, the employer guarantees reemployment after leave.guarantees reemployment after leave.FMLA does not apply to employers FMLA does not apply to employers employing less than 50 employees or to employing less than 50 employees or to employees with less than year seniority or employees with less than year seniority or less than 25 hours per week for the less than 25 hours per week for the previous year.previous year.

FMLAFMLACovered employers must grant an eligible employee up Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following 12-month period for one or more of the following reasons:reasons:for the birth and care of the newborn child of the for the birth and care of the newborn child of the employee; employee; for placement with the employee of a son or daughter for for placement with the employee of a son or daughter for adoption or foster care; adoption or foster care; to care for an immediate family member (spouse, child, to care for an immediate family member (spouse, child, or parent) with a serious health condition; or parent) with a serious health condition; oror to take medical leave when the employee is unable to to take medical leave when the employee is unable to work because of a serious health condition.work because of a serious health condition.

FMLA: 12 Month PeriodFMLA: 12 Month PeriodAn employer is permitted to choose any one of the An employer is permitted to choose any one of the

following methods for determining the ``12-following methods for determining the ``12-month period'' in which the 12 weeks of leave month period'' in which the 12 weeks of leave entitlement occurs: (1) The calendar year; (2) entitlement occurs: (1) The calendar year; (2) Any fixed 12-month ``leave year,'' such as a Any fixed 12-month ``leave year,'' such as a fiscal year, a year required by State law, or a fiscal year, a year required by State law, or a year starting on an employee's ``anniversary'' year starting on an employee's ``anniversary'' date; (3) The 12-month period measured forward date; (3) The 12-month period measured forward from the date any employee's first FMLA leave from the date any employee's first FMLA leave begins; or, (4) A ``rolling'' 12-month period begins; or, (4) A ``rolling'' 12-month period measured backward from the date an employee measured backward from the date an employee uses any FMLA leave (except that such uses any FMLA leave (except that such measure may not extend back before August 5, measure may not extend back before August 5, 1993). 29 CFR 825.2001993). 29 CFR 825.200

FMLA: Rolling 12 Month PeriodFMLA: Rolling 12 Month PeriodEach time an employee takes FMLA leave the remaining Each time an employee takes FMLA leave the remaining

leave entitlement would be any balance of the 12 weeks leave entitlement would be any balance of the 12 weeks which has not been used during the immediately which has not been used during the immediately preceding 12 months. For example, if an employee has preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 1994, employee used four weeks beginning February 1, 1994, four weeks beginning June 1, 1994, and four weeks four weeks beginning June 1, 1994, and four weeks beginning December 1, 1994, the employee would not beginning December 1, 1994, the employee would not be entitled to any additional leave until February 1, 1995. be entitled to any additional leave until February 1, 1995. However, beginning on February 1, 1995, the employee However, beginning on February 1, 1995, the employee would be entitled to four weeks of leave, on June 1 the would be entitled to four weeks of leave, on June 1 the employee would be entitled to an additional four weeks, employee would be entitled to an additional four weeks, etc. etc.

Electronic Communications Privacy ActElectronic Communications Privacy Act

Prohibits communication intercepts.Prohibits communication intercepts.

Business Extension ExceptionBusiness Extension Exception

1.1. Employee consents, orEmployee consents, or

2.2. Lacking consent, the communication was Lacking consent, the communication was sent or received by a device furnished by sent or received by a device furnished by the employer that is used in the ordinary the employer that is used in the ordinary course of the employer’s business.course of the employer’s business.

Business Extension Exemption (“BEE”)Business Extension Exemption (“BEE”)

The BEE does not require consent.  However, there are very specific conditions that must be met.  The BEE can only be claimed for monitoring performed by certain types of equipment, and the recording must occur in the ordinary course of business.  The BEE covers any recording done by any telephone instrument, equipment or facility, or any component thereof furnished to the subscriber by a provider of wire or electronic communication service in the ordinary course of business and being used in the ordinary course of business (See U.S.C. § 2510(5)(a)).

Employment Income Security Act of Employment Income Security Act of 1974 (“ERISA”) 29 USCA § 10011974 (“ERISA”) 29 USCA § 1001

Prohibits the discharge of an employee to Prohibits the discharge of an employee to avoid paying pension benefits.avoid paying pension benefits.

Numerous provisions with respect to Numerous provisions with respect to private pension plans.private pension plans.

Debt and Employment ProtectionDebt and Employment Protection

Consumer Protection Act; 15 USCA § Consumer Protection Act; 15 USCA § 1674(a) provides that an employer cannot 1674(a) provides that an employer cannot discriminate against an employee solely discriminate against an employee solely because his wages have been garnished.because his wages have been garnished.

Bankruptcy Act; 11 USCA § 525 makes it Bankruptcy Act; 11 USCA § 525 makes it illegal for a private employer to illegal for a private employer to discriminate against individuals who have discriminate against individuals who have filed bankruptcy.filed bankruptcy.

English Only Policy - 29 CFR 1606.7English Only Policy - 29 CFR 1606.7A rule requiring employees to speak only English at allA rule requiring employees to speak only English at all          times in the workplace is a burdensome term and times in the workplace is a burdensome term and

condition of employment.  The primary language of an condition of employment.  The primary language of an individual is often an essential national origin individual is often an essential national origin characteristic.  Prohibiting employees at all times, in the characteristic.  Prohibiting employees at all times, in the workplace, from speaking their primary language or the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national inferiority, isolation and intimidation based on national origin which could result in a discriminatory working origin which could result in a discriminatory working environment.  Therefore, the Commission will presume environment.  Therefore, the Commission will presume that such a rule violates Title VII and will closely that such a rule violates Title VII and will closely scrutinize it.scrutinize it.

English Only PolicyEnglish Only Policy

But having an English-only policy is not a per se violation of But having an English-only policy is not a per se violation of Title VII.  English-only policies have been upheld as Title VII.  English-only policies have been upheld as lawful when justified by true business necessity.  The lawful when justified by true business necessity.  The Tenth Circuit dismissed a challenge to a hospital's Tenth Circuit dismissed a challenge to a hospital's English-only rule brought by a Spanish-speaking English-only rule brought by a Spanish-speaking housekeeper. The Court sided with the hospital.  It found housekeeper. The Court sided with the hospital.  It found that the hospital's policy was narrowly tailored, and that it that the hospital's policy was narrowly tailored, and that it was justified by a business necessity of providing a safe was justified by a business necessity of providing a safe and sanitary environment for patients.  This is consistent and sanitary environment for patients.  This is consistent with the EEOC's position that English-only rules are with the EEOC's position that English-only rules are lawful if they are adopted for non-discriminatory reasons lawful if they are adopted for non-discriminatory reasons and are justified by business necessity if they are and are justified by business necessity if they are needed for an employer to operate safely or efficiently.needed for an employer to operate safely or efficiently.

English Only PolicyEnglish Only Policy

Evaluate how easily your employees Evaluate how easily your employees can conform with the policy.can conform with the policy.

Tailor the policy to apply to areas and Tailor the policy to apply to areas and circumstances where it is necessary.circumstances where it is necessary.

Provide adequate notice of the policy.Provide adequate notice of the policy.

Make sure the policy is being adopted Make sure the policy is being adopted to address a documented concern.to address a documented concern.

No Match LetterNo Match Letter

A no-match letter is a letter from the Social A no-match letter is a letter from the Social Security Administration (SSA).  It is officially Security Administration (SSA).  It is officially known as an "Employer Correction Request" known as an "Employer Correction Request" and it is sent to employers when the names and and it is sent to employers when the names and social security numbers submitted for their social security numbers submitted for their employees do not match - thus the term "no-employees do not match - thus the term "no-match."   Immigration and Customs Enforcement match."   Immigration and Customs Enforcement (ICE) sends out a similar letter when, upon (ICE) sends out a similar letter when, upon inspection of an employer's I-9 Employment inspection of an employer's I-9 Employment Eligibility Verification Forms, ICE is unable to Eligibility Verification Forms, ICE is unable to confirm whether a document presented or confirm whether a document presented or referenced matches the name of the employee referenced matches the name of the employee to which the document supposedly refers.to which the document supposedly refers.

No Match LetterNo Match Letter

The receipt of a no-match letter may be The receipt of a no-match letter may be considered evidence that an employer had considered evidence that an employer had constructive notice that it is employing an constructive notice that it is employing an unauthorized alien.  However, this does not unauthorized alien.  However, this does not mean employers must or should automatically mean employers must or should automatically terminate employees whose names appear on a terminate employees whose names appear on a no-match letter.  Rather, the employer may no-match letter.  Rather, the employer may protect itself from liability if, upon receiving a no-protect itself from liability if, upon receiving a no-match letter, it promptly follows specific steps match letter, it promptly follows specific steps laid out in the rules.  laid out in the rules. 

No Match LetterNo Match LetterFor an employer to invoke the "safe harbor" For an employer to invoke the "safe harbor"

defense, it must take steps within 30 calendar defense, it must take steps within 30 calendar days of receiving a no-match.  1days of receiving a no-match.  1stst , the employer , the employer should check its records to see if the name and should check its records to see if the name and number or documents on file are the same as number or documents on file are the same as those referenced in the no-match letter.  If there those referenced in the no-match letter.  If there is a discrepancy between the employer's records is a discrepancy between the employer's records and the information on the no-match letter, the and the information on the no-match letter, the employer should immediately contact the SSA or employer should immediately contact the SSA or ICE in writing to resolve this.  Any corrected ICE in writing to resolve this.  Any corrected information regarding the employee's work information regarding the employee's work authorization should be filed with the employee's authorization should be filed with the employee's I-9 form.I-9 form.

Free Speech of Government Free Speech of Government EmployeesEmployees

A government employee in Indiana is wrongfully disciplined A government employee in Indiana is wrongfully disciplined for statements made by the employee if:for statements made by the employee if:First, the employee was speaking on a matter of public First, the employee was speaking on a matter of public concern about which free and open debate is vital to the concern about which free and open debate is vital to the decision making of the community. decision making of the community. Second, the reviewing court must balance the interests Second, the reviewing court must balance the interests of the employee, as a citizen, in commenting upon of the employee, as a citizen, in commenting upon matters of public concern and the State's interest, as an matters of public concern and the State's interest, as an employer, in running an efficient operation. employer, in running an efficient operation. Third, the employee's protected conduct must be a Third, the employee's protected conduct must be a motivating factor in the State's decision to [discipline the motivating factor in the State's decision to [discipline the employee.] employee.]

Religion in the WorkplaceReligion in the Workplace

Federal law prohibits harassment of or Federal law prohibits harassment of or discrimination against employees on account of discrimination against employees on account of their religious beliefs.  An employee cannot be their religious beliefs.  An employee cannot be subjected to treatment that interferes with his or subjected to treatment that interferes with his or her job duties or work environment - or face her job duties or work environment - or face demotion, termination or other such employment demotion, termination or other such employment actions - due to his or her sincere religious actions - due to his or her sincere religious beliefs, beliefs, or lack thereofor lack thereof. So, for instance, it would . So, for instance, it would be unlawful for a supervisor to harass an be unlawful for a supervisor to harass an employee because of the employee's religion. employee because of the employee's religion. But it would also be unlawful for the supervisor But it would also be unlawful for the supervisor to harass an employee because the employee to harass an employee because the employee did not share the supervisor's religion. did not share the supervisor's religion.

Religion in the WorkplaceReligion in the WorkplaceMaking your workplace a "religion-free" zone does not Making your workplace a "religion-free" zone does not

solve your woes. That's because federal law also solve your woes. That's because federal law also requires employers to affirmatively accommodate requires employers to affirmatively accommodate employees' religious beliefs and practices, unless doing employees' religious beliefs and practices, unless doing so would impose an "undue hardship" upon the so would impose an "undue hardship" upon the employer. An "undue hardship" means anything more employer. An "undue hardship" means anything more than a than a de minimisde minimis cost. An "undue hardship" can be cost. An "undue hardship" can be financial or non-financial in nature, but the burden falls financial or non-financial in nature, but the burden falls on employers to demonstrate such hardship. Currently, on employers to demonstrate such hardship. Currently, federal law sets the bar for showing an "undue hardship" federal law sets the bar for showing an "undue hardship" rather low - lower than, for instance, the bar for showing rather low - lower than, for instance, the bar for showing an "undue burden" for accommodating an employee's an "undue burden" for accommodating an employee's disability.disability.

Freedom of Religion in the WorkplaceFreedom of Religion in the Workplace

Generally, a reasonable accommodation must be made to Generally, a reasonable accommodation must be made to allow an employee to practice their religious beliefs.allow an employee to practice their religious beliefs.

However if strongly-held religious beliefs that, if exercised However if strongly-held religious beliefs that, if exercised by law enforcement officers during the course of their by law enforcement officers during the course of their duties, would thwart the most basic tenets of public duties, would thwart the most basic tenets of public protection: the neutral enforcement of laws and protection: the neutral enforcement of laws and protection of potential victims. protection of potential victims. EndresEndres, 2003 WL , 2003 WL 21480361. The 21480361. The EndresEndres court held that an court held that an accommodation that would allow a law enforcement accommodation that would allow a law enforcement officer to choose which laws to enforce and whom to officer to choose which laws to enforce and whom to protect would be "unreasonable [for] any police or fire protect would be "unreasonable [for] any police or fire department to tolerate."department to tolerate."