Presentation Transcript

1. HR Bootcamp Top Ten Ways to Get Sued and Wise Advice from HR Bobbie Fox and Kim McCartherens Presented by SCF Arizona June 12, 2012
2. Top Ten Ways to Get Sued
3. Top 10 Ways to Get Sued 1. Say something stupid We don’t want those people working here Disabled janitorial worker was awarded $13 million in punitive damages – sending message ADA discrimination will not be tolerated. (Reduced). Court ordered reinstatement and ADA training for managers. EEOC v. Chuck E. Cheese
4. Top 10 Ways to Get Sued “We can’t hire you because you are pregnant.” EEOC Wins Jury Award from Phoenix Subway Franchisee for Pregnancy Discrimination. General Manager Refused to Hire Applicant Solely Because She Was Pregnant. EEOC press release, 1/30/12. (Jury awarded punitive damages and back pay). www.eeoc.gov
5. Say something else stupid “Come back after you have the baby.” Said to an applicant at Wal-mart. Settled for $220,000 by the EEOC. (Green Valley, AZ).
6. Americans with Disabilities Act (ADA & ADAAA) Protects person with a disability from discrimination, harassment, and retaliation. Disability: Physical or mental impairment that substantially limits: one or more major life activities, or having a record of such impairment, or regarded as having such impairment
7. Americans with Disabilities Act Also protects against associational discrimination Discrimination because of family, business, social, or other relationship or association with an individual with a disability Protects qualified individual with a disability – must still be qualified to perform the essential functions of the job
8. Americans with Disabilities Act Deafness Blindness Intellectual disability (formerly mental retardation) Missing limbs Mobility impairments Autism Cancer Cerebral palsy Diabetes Epilepsy HIV/AIDS Multiple sclerosis Always a Disability
9. Episodic and Mental Conditions Hypertension Asthma Depression Bipolar disorder Anxiety disorders Panic disorder Obsessive compulsive disorder Post-traumatic stress disorder Schizophrenia Personality disorders
10. Not a Disability Transvestism/transsexualism Sexual behavior disorders Gender identity disorders Compulsive gambling Kleptomania Pyromania Psychoactive substance use disorders (as result of illegal use of drugs)
11. HR Says: “Weird” and “Nerd” are not disabilities You may have to address behaviors that have a negative affect on the workplace Respond to complaints even if they don’t violate the law. Take constant complainers & whiners seriously!
12. Reasonable Accommodation Employer must provide to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (undue hardship). Law focuses on employer’s responsibility to accommodate (not whether there is a disability).
13. HR Says: How to Accommodate Use interactive process Change work environment (or the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment Job Accommodation Network, www.askjan.org
14. HR Says Accommodation can be an easy solution! Ergonomics Schedule adjustment Needs to be reasonable (not necessarily what they are asking for)
15. Employment Discrimination Laws Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”): Prohibits employers from discriminating in all areas of the employment relationship on the basis of Race, color, religion, sex, pregnancy, or national origin. Prohibits harassment or hostile work environment Retaliation
16. Arizona Civil Rights Act (ACRA) State law - A.R.S. §41-1401 - Prohibits employers from discriminating if the action is based on: Race, color, religion, sex, national origin, age, or disability Prohibits retaliation Harassment (need only 1 employee)
17. Unlawful to discriminate in all employment practices, such as: Recruitment Pay, benefits Hiring, firing, lay-off Promotion Job assignments Training Leave All other employment-related activities
18. ADEA Age Discrimination Employment Act of 1967 (ADEA): Prohibits employers from discriminating on the basis of age (40 years and older) Prohibits retaliation Prohibits harassment
19. Top 10 Ways to Get Sued 2. Don’t hire the qualified candidate “We decided to hire somebody younger.” EEOC v. Southern Scrap Metals Co, EEOC press release 6/17/10
20. Top 10 Ways to Get Sued 3. Don’t bother accommodating an employee (he is just a whiner). ADAAA/religious accommodation Ergonomic considerations
21. Top 10 Ways to Get Sued 4. Give raises to people you like. Have a compensation plan and process
22. Discriminatory Pay Equal Pay Act of 1963, (EPA) Requires employers to pay men and women “equal pay” for “equal work” within an establishment
23. Lily Ledbetter Fair Pay Act Prohibits discriminatory pay or practice, including each time wages are paid Resulting in whole or part from the decision or practice
24. Top 10 Ways to Get Sued 5. Stereotype Gender, age, religion, disability, all protected classes, caregiver (i.e. mothers cannot perform jobs requiring travel Man harassed by male co-workers for failing to conform to male stereotype could bring a Title VII claim. He did not “act like a man should act,” and walked like a woman. Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001).
25. Stereotype – a lawsuit waiting to happen You’re hired; Bad back? You’re fired. “The new employee with a bad back will be out all the time.” EEOC v. DXP Enterprises,  Inc., d/b/a DXP Safety Alliance, Inc., DXP  hired Brooks and then fired her a few days later after learning she had  had a prior back injury. Also alleged age discrimination. EEOC settled for $120,000. Press Release, www.EEOC.gov (2/6/12).
26. Top 10 Ways to Get Sued 6. Be an Ostrich Notice of sexually harassing conduct triggers employer’s duty to conduct an investigation, and take prompt corrective action calculated to end harassment. (Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001). Must have a policy
27. HR Says Have a policy and ensure it is followed On notice, employer MUST conduct an investigation Investigation 101 – do it yourself or not Interviewer must be unbiased
28. Top 10 Ways to Get Sued 7. Get Even Retaliation is now #1 charge Co-workers with close relationships are protected HR Says: Policy and Prevention
29. Top 10 Ways to Get Sued 8. Play Favorites Favoritism could lead to evidence that you are treating employees unequally for illegal reasons (i.e. gender, race, religion, etc.) HR says: Don’t ignore claims of favoritism
30. Top 10 Ways to Get Sued 9. Fire an employee for being sick all the time Princeton HealthCare System fires employees if they cannot return to work within seven days, and refuses to grant leave beyond the 12 weeks allowed by the FMLA. EEOC v. Princeton HealthCare System, EEOC press release 8/11/10. HR says: Use caution with leave issues. ADA may require extra leave.
31. Top 10 Ways to Get Sued HR says: Use caution with leave issues. ADA may require extra leave. 10. Don’t worry about why your employee is gone, just discipline him when he gets back according to the attendance policy.
32. FMLA Leave 12 work weeks of unpaid leave a year Leave may be intermittent or on a reduced schedule Job protection – entitled to return to the same position or an equivalent position Must qualify – worked 1250 hours in the prior 12 months
33. FMLA – Reasons for Leave Birth of a child, or care for newborn child Placement with employee of a child for adoption or foster care Care of spouse, parent (not in-law), child under 18 (unless unable to care for himself), or domestic partner with a “serious health condition” Employee’s own “serious health condition”
34. HR Says: FMLA Best Practices Have a policy and ensure it is followed Have a FMLA contact person Written internal process Record and track FMLA Do not use FMLA leave as negative factor in employment action (hiring, promotion, discipline) Do not count FMLA leave under attendance policy discipline
35. Possible Manager Liability Do not interfere with, restrain, or deny the exercise of any FMLA right Retaliation – unlawful to terminate or discriminate against an employee for opposing any FMLA practice or for involvement with any FMLA proceeding
36. Leave – FMLA and WC Work-related injury or illness can also be a serious health condition under FMLA On notice, FMLA leave and WC leave runs concurrently Best option – if employee is absent for more than 3 consecutive days, notify HR so he/she can be placed on FMLA leave as well
37. FMLA, ADA & WC If employee with work injury is unable to return to work after 12 weeks of FMLA leave, what should the employer do? FMLA – no other obligation ADA – may need to grant additional leave, if the condition is a disability, as a reasonable accommodation (unless undue hardship) WC – not required to hold job open (cannot retaliate or discriminate due to WC injury)
38. HR Says: Follow these Best Practices Be fair, be consistent Train employees Document all discipline Document pay raises and the reasons Keep your documentation (so you can prove you had a legitimate business reason) Keep medical and leave information separate and limit access Confidentiality
39. Genetic Information Non-disclosure Act (GINA) Request for medical information FMLA, Fitness for Duty, WC, examinations Go through HR Overhearing conversation Casual conversation – do no pry! Unsolicited email or letter Voluntary wellness program Internet and other media Cannot troll for genetic data on social media or Internet
40. Social Media HR Says: Your policy should outline your expectations Social media use must not interfere with work duties/performance Do not use social media to harass or discriminate Do not share trade secrets, proprietary or confidential information Ethical standards – remind employees of your Code of Conduct The company owns the computer, monitors use, monitors e-mails; no right or expectation of privacy Enforce policy consistently (justify exceptions) May be disciplined up to and including termination for violation
41. Sexual Orientation States that prohibit discrimination based on sexual orientation and gender identity. (16 states and D.C.) States that prohibit discrimination based on sexual orientation alone. (5 states) Title VII does not protect, but stereotyping/gender nonconformity may offer protection In 29 states, it’s still legal to fire someone solely because they’re lesbian, gay, or bisexual In 34 states it is legal to fire someone solely for being transgender.
42. Resources www.dol.gov www.eeoc.gov www.nlrb.gov www.osha.gov Arizona Employment Law Handbook www.askjan.org www.scfaz.com www.safeatworkaz.com Twitter: @BobbieJFox
43. Q & A