Management Rights and Responsibilities

1. Management Rights and Responsibilities Legal Requirements Federal and State

2. Age Discrimination • Protects individuals who are 40 years or older from employment discrimination based on age. In 2002 the EEOC received 19,921 charges and resolved 18,673 charges. They recovered $55.7 million in monetary benefits.

3. Disability Discrimination • Prohibits employers from discriminating against qualified individuals with disabilities in job discrimination in job application procedures, hiring, firing, advancement, compensation, job training, and other terms. In 2002 EEOC received 15, 964 charges and resolved 18,804 recovering $50 million in monetary benefits.

4. Race/Color Discrimination • Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race or color as well as national origin, sex and religion. • In 2001 EEOC received 29,910 charges and resolved 33,199 charges, while recovering 81.1 million dollars.

5. National Origin • National origin discrimination means treating someone less favorably because he or she comes from a particular place, because of his or her ethnicity or accent, or because it is believe that he or she has a particular ethic background. In 2002 EEOC received 9,046 charges and resolved 9,952 while recovered 21 million dollars.

6. Religious Discrimination • Prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. In 2002 EEOC received 2,672 charges and resolved 2,729 while recovering 4.3 million in monetary benefits for charging parties.

7. Sex-Based Discrimination • It is unlawful to discriminate against any employee or applicant for employment because of his/her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege. In 2002 EEOC received 25,536 charges and resolved 29,088 while recovering 94.7 million dollars.

8. Sexual Harassment • Unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when the conduct explicitly or implicitly affects an individual’s employment. In 2002 the EEOC received 14,396 charges and resolved 15,792 charges while recovering 50.3 million dollars.

9. Pregnancy Discrimination • Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination. • In 2002 the EEOC received 4,714 charges and resolved 4,778 charges while recovering 10 million dollars.

10. Equal Pay and Compensation Discrimination • The Equal Pay Act requires that men and women be given equal pay for equal pay for equal work in the same establishment. The jobs not be identical, but they must be substantially equal. In 2002 the EEOC received 1,256 charges and resolved 1,182 charges while recovering 10.3 million dollars.

11. Title VII Case Law • Pennsylvania State Police v. Suders • The employee failed to use the departments internal policy before she quit. The court allow for an Faragher-Ellerth defense. A reasonable policy will serve you well in cases like this.

12. Title VII Case Law • Speaks v. City of Lakeland • Once reported the city took prompt disciplinary action against the supervisor and had a well published policy, with training to disseminate the policy. The court granted summary judgment to the city and dismissed the compliant.

13. Title VII Case Law • McCurdy v. Arkansas State Police • Swift, effective remedial action taken against a supervisor who committed a single incident of sexual harassment, where the employee suffered no tangible job action, protects the agency from liability.

14. Title VII Case Law • Cromer-Kendall v. District of Columbia • Supervisors failure to take action when a female officer complained about sexual advances from a female sergeant, resulted in liability to the department.

15. Title VII Case Law • Eich v. Board of Regents for Central Missouri State University • Based on minor incidents of unwanted touching and jokes over a seven year period and the departments failure to take action on sixteen complaints resulted in a $242,272.00 award.

16. Title VII Case Law • McKenzie v. Milwaukee County • Her complaint of non-support and transfer would not establish disparate treatment. • Summary judgment to the County

17. Title VII Case Law • U.S. v. Delaware • Cut off score of 75% on the ALERT reading comprehension and writing test for hiring had a disparate impact on black candidates. The cut off scores didn’t correspond to the minimum qualifications necessary to do the job.

18. Title VII Case Law • Antonelli v. New Jersey • Process used t score firefighter applicant test, where the cut score were set at a level to avoid disparate impact under the EEOC’ 80% rule, held not to constitute racial discrimination under an equal protection challenge.

19. Title VII Case Law • Petit v. City of Chicago • The court upheld a race-conscious promotional process to advantage certain minorities, based among other reason on an operational need. Under Grutter standards, we hold, the City has set out a compelling operational need for a diverse police department.

20. State Mandates • Fair Employment and Housing Act • Protects California employees in areas Title VII doesn’t cover or extends the coverage to cover more employee rights then any other state.

21. State Mandates • Age Protection • Ancestry • Color • Creed • FMLA / CFRA • Disability • Martial Status

22. State Mandates • Medical Condition • National Origin • Race • Religion • Sex • Sexual Orientation

23. Local Mandates • Civil Service • They can have the power to control hiring and firing or maybe limited to the appeal of decisions affecting hiring or firing. • They can be a failure in the employment system or a safeguard for employees and applicants.

24. Local Mandates • Court Settlements • Failure to follow Federal and State mandates can result in law suits, that can lead to settlements that require the department hire according to a fixed formula.

25. Local Mandates • Job requirements • Position duties / Essential Job Function • You must have them listed in your job announcement and enforce them with current employee's

26. Training requirements • Pre-Hire • Formal Education • Specific Training • Perquisite Training

27. Training requirements • Probation requirements • Successful completion of a peremptory course. • Trainee status for the first year or successfully compete a given course of instruction.

28. Training requirements • Continuing Education • Professional Requirements • If you have employees that are licensed by the state or professional organizations you need to insure they are current in hours needed.

29. Negligent Retention • Your duty to take corrective action against unfit employees requires you to retrain, reassign, or discharge or face the liability of there actions. • Assignments and duties must be weigh against past performance and future liability.

30. Negligent Retention • Employee evaluation systems that report the true performance of the employee over the rating and the corrective actions taken is the best defense of negligent retention. • Checks and balances must insure that all raters, rate all employees to the same set of standards.

31. Wrongful Discharge • Firing employees is the last act of corrective actions taken buy the employer. Documentation, documentation is the mantra of a good discipline system. • The following should give you a little insight to the issues of terminating the employment relationship.

32. Wrongful Discharge • Property rights of government employees come from the expectation of retirement benefits and the governments obligation under the 14th Amendment (Due Process before taking property.) • In California, the Skelly Process addresses the due process rights.

33. Wrongful Discharge • Federal and State anti-discrimination laws often come forward in termination appeals and in some cases during the processes. • You should eliminate the question of discrimination before it is ask! • Remember level playing field for everyone.

34. Wrongful Discharge • Take a close look at your MOU and the Cities/County or State Personnel Rules before you start the processes of termination. • Make sure you have a charge the is set forth in the MOU and/or Personnel Rules.

35. Wrongful Discharge • Whistle Blowing is a safe harbor for employees, who report department misconduct to other agencies. • Retaliation will result in very large awards by juries and/or judges.

36. Wrongful Discharge • Asking employees to perform an illegal act is grounds for wrongful discharge • It can be as simple as the destruction of a document or as complicated as not reporting violations to the appointing authority.

37. Wrongful Discharge • Sick Leave abuse or just taking the time off the law allows. Supervisors and Managers must have an understanding of Federal and State leave mandates vs. MOU leave benefits. • FMLA, CFRA, PDL, PFL, VRA, SLA and ADA can all spell PROBLEM!

38. Wrongful Discharge • Policy vs. Practice in discipline means progressive documentation in policy should mean supervisors would give oral, written, performance improvement program and the taking of property. • Failure to follow your own rules results in wrongful discharge.

39. Wrongful Discharge • When the facts are in favor of the employer file a compliant with the EEOC! • Being a member of a protected class and filing charges is a good offense, when your defending yourself during the discharge process. • Answer the question before it is an issue.

40. Wrongful Discharge • Doing it right saves money! The cost of a in-depth investigation is offset by the employees ability to receive back pay, promotion, reinstatement, front pay, compensatory damages, required reasonable accommodation, injunctive relief, punitive damages, and attorney’s fees.

41. Wrongful Discharge • Check your system: • Documentation of ALL behaviors below or above standards. • Centralized filing of documentation to insure all raters and all employees receive the same protections. • History of all discipline, to insure future compliance.

42. Fair Labor Standards Act • Born in the Depression, to create more jobs where none existed by cost reduction if employers hired more workers in lieu of working current employees less hours. • Did not apply to State, County or City employees prior to 1985. Overtime was paid prior to that time by contract to those employees.

43. Fair Labor Standards Act • Minimum wage, time and half for overtime and regular rate of pay are key provisions of this Act. We have had since 1985 to come into compliance with this law and still we see case after case of government agencies failure to follow the law and believe that it doesn’t apply to them.

44. FLSA Case Law • Christensen v. Harris County (2000) • Insures that employees receive timely compensation for working overtime. • Guarantees that an employee will get to use compensatory time off within a reasonable time after making the request unless doing so will unduly disrupt the employers operation.

45. FLSA Case Law • Alvarez v. IBP (2003 • Employers must compensate employees for all “hours worked” changing in and out of specialized protective gear.

46. FLSA Case Law • Leever v. City of Carson (2004) • The city failed to investigate how many hours a canine officer actually worked in caring for the canine. A collective bargaining agreement will not off set hours worked. • Fixed hours could be bonus pay!

47. FLSA Case Law • Mortensen v. County of Sacramento (2004) • A deputy sheriff cannot require a county to grant him use of his comp time off days he specifically requested. • Following the rule set forth in Christensen.

48. FLSA Case Law • O’Brien v. Town of Agawam (2003) • Shift-differential pay, longevity pay, and career-incentive pay must all be included in the regular rate of pay. • Your MOU and the regular rate of pay may not be the same. Uniform allowances and conditional terms maybe left out.

49. FLSA Case Law • Johnson v. Unified Government of Wyandotte County (2004) • The Court found the County and the Housing Authority, where the officers worked “off duty” were not joint employers for the purpose of calculating overtime under the FLSA.

50. FLSA Case Law • Johnson v. Unified Government of Wyandotte County (2004) • The Court found the County and the Housing Authority, where the officers worked “off duty” were not joint employers for the purpose of calculating overtime under the FLSA.