Employment Law 101 – More Than Alphabet Soup What Every Lawyer Should Know

Employment Law 101 –More Than Alphabet SoupWhat Every Lawyer Should Know March 2012 Stephanie P. Karn, McGuireWoods LLP Aaron Walters, Capital One

Outline • Federal employment laws • Performance Appraisals • Progressive discipline and termination • EEO Developments in 2011-2012 • Dealing with employees – policies, procedures • Retaliation

Federal Employment Laws • Title VII • Age Discrimination in Employment Act (ADEA) • Pregnancy Discrimination Act (PDA) • The ADA Amendments Act (ADAAA) • Family and Medical Leave Act (FMLA) • Uniformed Services Employment & Reemployment Rights Act of 1994 (USERRA) • Fair Labor Standards Act (FLSA)

Title VII • Prohibits discrimination in employment based on: • Race • Sex • Color • Religion • National Origin • ADEA similarly applies to age (over 40)

Employment activities covered • Hiring • Promotions • Assignments • Discipline • Performance appraisals • Benefits, conditions or privileges of employment

Disparate Treatment • Intentional action where membership in the protected group (e.g. race) is a motivating factor • “Bona fide occupational qualification” (BFOQ) can be a legitimate reason for a disparate treatment • Employer must show that the BFOQ goes to the essence of the business and bears a high correlation to the ability to do the job

Disparate Impact • A facially neutral policy or action that has a “legally significant disparate impact” on a protected group • E.g., fitness-for-duty physical fitness tests • Employer must show that the standard is a minimum qualification necessary for the successful performance of the job in question

Harassment/Sexual harassment • Hostile work environment based on protected class • Sexual harassment – unwelcome sexual advances; requests for sexual favors; other verbal or physical conduct of a sexual nature • They have the purpose or effect of creating a hostile or offensive work environment

Employer liability under Title VII • Harasser is supervisor or manager • Employer is strictly liable for tangible employment action (demotion, firing, etc.) • If no tangible employment action • Employer used reasonable care to prevent and correct harassment • Victim unreasonably failed to make complaint under prevention policy

Employer liability under Title VII • Harasser is Co-worker • Employer still liable if knew or reasonably should have known of the conduct • Employer deemed legally aware if any supervisor knew • No liability if employer took immediate corrective action upon learning of harassment • Harasser is not Employee • Employer liable if it knew or should have known of conduct and failed to take corrective action • Not presumed to have authority over non-employees • Employer must remove employee from harassment if possible • May not be possible in law enforcement context, because conduct by public is a part of the job

Pregnancy Discrimination Act • Bans discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions” • Pregnant employees must be treated the same as other employees • Does not require more favorable treatment of pregnant employees

The ADAAA • Title I: Employment • Private employers with 15+ employees • Non-discrimination in hiring and other employment decisions • No retaliation • Reasonable accommodation for employees and applicants with disabilities • Explicitly prohibits certain interview questions about disabilities

The ADAAA: Who is Protected? • “Qualified Individuals with Disabilities” • Individuals Who Have a Record of Impairment • Persons Who Have a Relationship with a Disabled Individual (Association) • Persons Who are Regarded as Disabled BOTTOM LINE: EVERYONE HAS A DISABILITY

Pre-Employment Medical Inquiries and Examinations of Applicants • Before making a job offer, an employer may not ask an applicant about: • Existence, nature or severity of disability • Prognosis or expectation regarding condition • Whether will need leave or special treatment

Pre-Employment Medical Inquiries and Examinations of Applicants • However, an employer can ask a job applicant: • About ability to perform job functions, even non-essential functions • About ability to meet attendance requirements • To demonstrate the performance of job tasks

Pre-Employment Medical Inquiries and Examinations – After Conditional Offer of Employment of Applicants • Employer may require a medical examination and/or make medical inquiries, after making a conditional job offer, of all candidates for all jobs or certain positions • Employer may not refuse to hire based on results, unless reason is job-related and consistent with business necessity

Medical Inquiries and Examinations of Employees • Employer may make medical inquiries and require medical examinations of employeesonly where job-related and consistent with business necessity • EXCEPTIONS?: Wellness programs, benefits • Information obtained from inquiries and examinations must be kept in separate files and treated as confidential

Who is a “Qualified Employee with a Disability” entitled to ADA Protection? • Must satisfy employer’s legitimate requirements for the job • E.g., education, experience, skills, licenses • Must be able to perform essential functions, with or without reasonable accommodation • Nonessential, marginal tasks are irrelevant • Employer cannot refuse to hire based on disability preventing an applicant from performing a marginal (non-essential) job function • Performance of essential functions at time of decision – not at some point in the future

What are Essential Functions? • Consider: • Are other employees actually required to perform the function in question? • Would removing the function which the individual is unable to perform fundamentally change the job? • Does the position exist to perform the function? • Are other employees available to help? • Is the tasks consistent with the written job description?

REASONABLE ACCOMMODATION OBLIGATION • Three General Categories of Reasonable Accommodation • Changes in the job application process so that a qualified applicant with a disability can be considered for the job; • Modifications to the work environment – including how a job is performed – so that a qualified individual with a disability can perform the job; and • Changes so that an employee with a disability can enjoy equal benefits and privileges of employment (lunchrooms, lounges, restrooms).

REASONABLE ACCOMMODATION EXAMPLES • Job restructuring • Part-time or modified work schedules • Reassignment to a vacant position • An employer is not required to bump another employee • Acquiring or modifying equipment • Changing exams, training materials, or policies; and • Providing qualified readers or interpreters

Has the employee requested an accommodation? • No magic language is required • Need not use the term “reasonable accommodation” • Sufficient to notify the employer that the employee has a disability that requires an accommodation • Knowledge of disability + knowledge of need for accommodation may be enough to trigger obligation (even without employee providing notice) • Does not need to be made in writing • While an employer may ask that the individual fill out a form and subject the request in written form, the employer cannot ignore the oral request • Employer’s responsibility to engage in the interactive process.

Undue Hardship Exception • A reasonable accommodation is not required if the accommodation would impose an “undue hardship” on the employer taking into consideration the nature and cost of the accommodation, the overall financial resources of the employer, and the effect on expenses or impact of accommodation on the operation of the employer.

Do not lower standards An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. Nor is an employer required to lower productivity standards -- whether qualitative or quantitative -- that are applied uniformly to employees with and without disabilities. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

Defenses to ADA claims • Plaintiff is unqualified • Plaintiff is not disabled • Employer cannot reasonably accommodate • Direct threat to health and safety of others • Business necessity (like BFOQ)

The FMLA • The FMLA requires covered employers to grant eligible employees up to 12 weeks of unpaid leave in a 12-month period. • Prohibits retaliation by the employer • FMLA leave may be taken for: • The birth or adoption of an employee’s child; • For an employee to care for a child, spouse or parent with a serious health condition; or • When an employee is unable to work because of his or her own serious health condition.

Eligible Employee • Works for a covered employer, and • Works in a location with 50 or more employees within 75 mile radius • Worked at least 12 months (does not have to be consecutive) • Worked at least 1,250 hours during 12 month period preceding leave request • Seeks leave to care for self, spouse, parent or child

Serious Health Condition • The FMLA defines a “serious health condition” as an illness, injury, impairment or physical and mental condition that: • Involves in-patient care at a hospital, hospice or residential medical care facility; or • Involves continuing treatment by a health care provider. • “Continuing treatment” = any incapacity requiring: • an absence of more than 3 days, and • either of the following • 2 or more visits to a health care provider or • 1 visit with a regimen of continuing treatment

Serious Health Condition • Supervision for chronic or long-term health condition or prenatal care • "Chronic serious health condition" • periodic treatment visits • continues over an extended period • episodic incapacity (e.g., asthma, diabetes, epilepsy). • A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. • under doctor’s continuing supervision • need not be receiving active treatment • Examples: Alzheimer's, a severe stroke, or the terminal stages of a disease.

30 days if foreseeable “as soon as practicable” if not Verbal notice is adequate, and FMLA need not be mentioned. Notice to Employer

Return to Work • Must restore employee to the same or equivalent position with the same benefits, pay, and terms & conditions • Even if replaced, or job restructured to accommodate absence. • Reasonable opportunity to update any necessary licenses or courses. • No greater right than if continuously employed.

REMEMBER: • Burden not on employee, so you need to be aware • Ask if employee needs FMLA leave • Highly technical – Refer to HR • Time Sensitive • Be aware of interplay between ADA, FMLA and Workers’ Comp

Sick Leave in general • Need to have a clear policy about how much leave is granted • Need to enforce policy consistently • For FMLA-type leave, need medical information • For general sick leave, do not, but may request it if concern employee is abusing sick leave • Make sure to count against FMLA where applicable

Issues Related to Military Service • USERRA • FMLA

USERRA(Uniformed Services Employment & Reemployment Rights Act of 1994) • Prohibits discrimination against persons because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services. • Prohibits an employer from denying any benefit of employment on the basis of an individual’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. • Protects the right of veterans, reservists, National Guard members, and certain other members of the uniformed services to reclaim their civilian employment after being absent due to military service or training.

Reemployment Obligations • Upon completion of military service, the returning employee “shall be promptly reemployed.” • How do you know where to place and pay an employee when they return to work following military service? • “Escalator Principle” • Employee is entitled to position they “would have achieved” had they been continuously employed. • Employee entitled to the pay and benefits they “would have achieved” had they been continuously employed.

USERRA: Employees’ Responsibilities When Reporting Back to Work • Application for reinstatement must be timely • 1 to 30 days – next scheduled work period • 31 to 180 days – 14 days after completion of military service • 181 or more – 90 days after completion of military service • Service resulting in injury – automatic extension not to exceed two years • Discharged “under honorable conditions”

Reemployment Exceptions • Changed Circumstances • Reduction in Force? • Undue Hardship • Burden on employer to prove exception

USERRA: “Motivating Factor” • Lower Burden for Employee • An employer is deemed to have discriminated against a service member employee if the employee’s service-related activity is a motivating factor in the employer’s action, unless the employer can prove that it would have made the same decision in the absence of the employee’s service connection. • Courts do not use the McDonnell Douglas test

USERRA: What remedies are available? • Lost wages • Reasonable attorneys’ fees • Liquidated damages (2x lost wage) if the employer’s violation is deemed “willful” • Reinstatement • Lost benefits • Correction of personnel files • Awards of lost promotional opportunities • Retroactive seniority

Military Amendments to FMLA • Provides two new types of leave: • Military Caregiver Leave • Qualifying Exigency Leave

Military Caregiver Leave • Up to 26 workweeks of leave in a single 12 month period • To care for a covered service member • On temporary disability retired list • With a serious injury or illness for which he/she is undergoing medical treatment or therapy • Otherwise on outpatient status • May take intermittent leave where medically necessary

Qualifying Exigency Leave • Normal 12 workweeks of FMLA leave • Use for any “qualifying exigency” arising out of fact that covered service member is on active duty or called to active duty status in support of a contingency operation. • May be taken intermittently

Qualifying Exigency Leave Eligibility • Does not extend to those serving in regular armed forces, only to National Guard or Reserves • Examples of Qualifying Exigencies: • Short notice deployment • Military events and related activities • Childcare and school activities • Financial and legal arrangements • Counseling

Fair Labor Standards Act • Wage and Hour Laws • Must have employees classified properly • Must monitor compliance and keep proper records

FLSA Overtime Exemptions “White Collar” Exemptions • Executive – managing other employees • Administrative – administer the affairs of the department rather than engage in investigative or enforcement duties • Professional – advanced degree required – e.g. lawyer -- Computer

Overtime requirement • Covered employees must receive 1½ times their regular rate of pay for all hours over 40 they actually work in a workweek • May not “volunteer” their time to avoid overtime • True volunteers are not subject to FLSA, but may be reimbursed expenses and paid a nominal fee

Hours Worked • “Suffered or permitted” to work • Vacation, holidays and sick leave • Break times • 20 min. or less must be paid • Rounding practices • Training time • Courses like those offered by bona fide institutions of learning • Certifications required by law

RETALIATION • Title VII • Age Discrimination in Employment Act (ADEA) • Americans with Disabilities Act (ADA) • Family and Medical Leave Act (FMLA) • Fair Labor Standards Act (FLSA) • USERRA

Retaliation: What is it? What must the plaintiff establish? • Protected Activity • Internal Complaint • External Complaint – EEOC Charge, etc. • Adverse Employment Action • Causal Connection • EEOC 2011 Statistics: • 37, 334 – 37.4% all charges

Employment Law 101 – More Than Alphabet Soup What Every Lawyer Should Know