navigating the employment cycle: employer beware

Connecting Great Ideas and Great People

www.asaecenter.org

Content Leaders:Lance Gibbons, Esq., Of Counsel , Littler Mendelson P.C.Michael Buddendeck, Esq., Asst. General Counsel, AICPA

James A. Woehlke, Esq., CAE, Gen’l Counsel, NYSSCPA, Moderator

Navigating the Employment Cycle: Employer Beware

Tuesday, August 18, 200912:45 – 2:00 p.m.

www.asaecenter.orgwww.asaecenter.org

Navigating the Employment Cycle

Setting the Stage

Interviewing and Hiring

During Employment

Termination

Q & A



Setting the Stage

Anti-Discrimination

Harassment

Family Medical Leave Act - FMLA Americans with Disabilities Act – ADA &

ADA Amendments Act - ADAAA



Setting the Stage - Anti-Discrimination –

Federal

Title VII – Civil Rights Act of 1964 (as

amended)

Civil Rights Act of 1991

Age Discrimination in Employment Act - ADEA

Equal Pay Act



Setting the Stage - Anti-Discrimination – State

California

DC

New York State

Check for other states and localities



Setting the Stage - Harassment

Special category of Title VII discriminationCovers not only sexual harassment but harassment of other protected classes, too.

Falls into two categories Quid pro quo Hostile environment



Setting the Stage - Harassment – Elements

Employee needs to suffer tangible job action

EEOC - Conduct is unwanted if the employee

Did not solicit or initiate the conduct

Finds the conduct undesirable or

offensive



Setting the Stage - Harassment – DefensesNo adverse employment effect on victim, no retaliationAnti-harassment policy (with reporting procedures and periodic re-publication)

Take the policy seriously Be prepared for investigations Investigate promptly / timely wrap-up



Setting the Stage - FMLA

Up to 12 weeks unpaid leave

Covers employers with 50 or more employees in 20 or more workweeks during current

or previous calendar year




Eligibility Requirements Work for a covered employer For 12 months Minimum 1,250 hours At location with at least 50 employees within a 75 mile radius



Setting the Stage – FMLA

Family and medical reasons, including Birth or adoption Employee’s health Care of a spouse, child or parent with a serious medical condition Military family leave




Intermittent leave

Effect on employee benefits

Interplay with other forms of time off

Be alert for states’ “mini-FMLAs”



Setting the Stage – ADA & ADAAA

Prohibits discrimination based on disabilities

Covers employers with 15 or more

employees

What is disability?

Reasonable accommodation

ADAAA reverses several court cases



Interviewing

Concentrate on ability to perform

Religion – “Are you available to work on weekends?”

Citizenship/Birthplace – “Are you

authorized to work in the U.S.?”



Interviewing


Age – Only questions that verify not a minor

Address/Residence – “Can you be reached

at this address? If not, would you care to leave another?”



Interviewing


Marital Status/Family – “Whom should

we contact in case of an emergency?”

Arrests & Convictions – Check state law!



Hiring

Background and reference checks

The Fair Credit Reporting Act (FCRA)

Pre-employment testing

Affirmative Action



Hiring

RecommendationsUnderstand the 21st Century workforce

Understand the law of pre-employment screening



During Employment

Evaluation and Feedback

Develop Proactive Strategies to Minimize Harassment and Discrimination

Investigations



During Employment

Documentation

Immigration issues



During Employment

Policies Employee Manual – Good or Bad? “Probationary” v. “Initial Employment” Period Workplace Romance; “Love Contracts” Favoritism



During Employment

Policies Use of email, Internet, communication systems

Corrective action – disciplinary options

Gifts and honoraria



Termination

Best Practices

Analyzing risk

Preparation

Conducting the meeting



Termination

Processing

Confidential information

Severance issues

Final paycheck/accrued unused vacation



Termination

Processing

Continuing benefits

Returning company equipment and

recouping money owed



Termination

Employment references

Revisiting prior termination decisions

Dealing with an EEOC charge

Decision to litigate

www.asaecenter.org

Contact Information

Lance Gibbons, Esq., Of Counsel , Littler Mendelson [email protected] (202) 789-3423

Michael Buddendeck, Esq., Asst. General Counsel, [email protected] (919) 402-4925

James A. Woehlke, Esq., CAE, General Counsel, [email protected] (212) [email protected] (845) 797-9518

SEE YOU NEXT YEAR!Annual Meeting & Expo

August 21 - 24, 2010Los Angeles, CA

navigating the employment cycle: employer beware

Education

littler mendelson

employment

general counsel

covers employers

discrimination

employment

employee

counsel