PREVENTIVE LAW WORKSHOP

1. PREVENTIVE LAW WORKSHOP Managing Difficult Personnel Situations Mary Elizabeth Kurz, Vice Chancellor and General Counsel Dianne Sortini, Director, Employee Relations & Training N.C. State University 28 November 2001

2. Three Case Hypotheticals • Alcohol and Poor Performance • Mental Illness • Uncollegial Behavior

3. Essential Preliminaries • Be aware of all applicable laws and University policies that may restrict or otherwise influence supervisor action(s) • Formulate a plan of action for dealing with the situation to achieve the employer’s objectives and avoid legal pitfalls

4. Applicable Laws • Rehabilitation Act of 1973 (Section 504) and The Americans Disabilities Act • prohibits discrimination against qualified persons who have a disability • requires reasonable accommodation to enable person to perform essential job functions • covers persons with disability, persons with a record of disability, or persons regarded as disabled

5. Applicable Laws • Covers former drug addicts and recovering alcoholics • Does not protect current users of alcohol or illegal drugs • An employer is permitted to consider the effects on job performance of alcoholism or drug addition in making employment decisions

6. Medical Exams • Current employees: Employer may require medical exams if job related and consistent with business necessity • Must keep medical information confidential (separate from other personnel files) • May be disclosed in limited circumstances to supervisors, first aid and safety personnel

7. Drug Free Workplace Act • Applies to entities receiving federal funds • Employer required to have and enforce policy that prohibits possession/use of illegal drugs in the workplace • Employer must require employees to report convictions of drug laws and report such convictions to the federal government and impose discipline or rehabilitation program

8. Common Law • Preventing harm: Employer may be liable to third parties for injuries caused by impaired or emotionally disturbed E’ees • Defamation: unreasonable publication of medical information • Invasion of Privacy and Related Tort claims • inquiry and disclosure of private facts about an employee may lead to employer liability unless communication is privileged (need to know)

9. Breach of Contract • Promise of confidentiality made in an employee handbook or EAP policy may give rise to claim if promise is breached • Failure to follow progressive discipline policy may give rise to claim

10. Title VII • In dealing with difficult personnel decisions, the employer must make sure that the application or effect of a personnel decision does not discriminate on other prohibited bases. • For example, uneven handling of employees who violate substance abuse policies may invite disparate treatment claim

11. Three Hypothetical Cases • Divide into three groups - each group to analyze one case • Groups take 15 minutes to analyze case and identify issues and how they would handle the matter • Discussion • Wrap up with Practical Pointers

12. Practical Pointers • Deal with unsatisfactory work performance, don’t ignore it (don’t assume disability) • Recommend EAP • Impose discipline where uncorrected • Document problems and effects and progressive discipline • Where disability is claimed, seek medical information and keep separate/confidential

13. What not to do • Discharge or discipline employee without following proper procedures • Act without sufficient investigation of the performance problems or cause of problems if identified by employee • Ignore the problem in the hopes that it will go away • Breach confidentiality