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Overview of Lawful and Effective Employment Practices of Importance to Government Contractors. Breakout Session # 410 Anthony L. Martin and William J. Daley Attorneys Lewis and Roca LLP Date 04/12/06 Time 2:25 pm – 3:25 pm. PURPOSE OF TRAINING. Educate you about law and policy

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Overview of Lawful and Effective Employment Practices of Importance to Government Contractors

Breakout Session #410

Anthony L. Martin and William J. Daley

Attorneys

Lewis and Roca LLP

Date 04/12/06

Time 2:25 pm – 3:25 pm

NCMA World Congress 2006

:

Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

purpose of training
PURPOSE OF TRAINING
  • Educate you about law and policy
  • Enable you to avoid the legal pitfalls of the employment process
  • Maintain a safe, fun and productive workplace
  • Protect the company and yourself from costly, time consuming legal proceedings

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

discriminate
DISCRIMINATE

According to Webster:

To make distinctions in treatment.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

is all discrimination bad
IS ALL DISCRIMINATION BAD?
  • Sometimes it is OK to make distinctions between people

Example: The person with greater experience gets the promotion

  • The law prohibits distinctions made based on protected characteristics

Example: The male gets the promotion over female just because of his gender.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

harass
HARASS

According to Webster:

To trouble, worry or torment

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

harassment always wrong sometimes unlawful
HARASSMENT-ALWAYS WRONG, SOMETIMES UNLAWFUL
  • Harassment can become unlawful when someone is tormented because of a protected characteristic such as race or gender
  • All other harassment is against company policy

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

retaliate
RETALIATE

According to Webster:

To return like for like.

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

retaliation
RETALIATION
  • A retaliation claim is the victim’s best friend:
  • The plaintiff in a retaliation case does NOT NEED A VALID UNDERLYING CLAIM

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

retaliation10
RETALIATION

Retaliation is prohibited by most discrimination statutes as well as public policy:

  • Whistleblowing
  • Making a Workers Comp claim
  • Refusal to lie under oath
  • Refusing to violate the law

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

obligations of the company
OBLIGATIONS OF THE COMPANY
  • Make the workplace free of unlawful discrimination, harassment and retaliation
  • Promptly and confidentially investigate complaints of discrimination, harassment and retaliation
  • Where discrimination, harassment and retaliation may have occurred, take prompt and appropriate remedial action (i.e., discipline commensurate with the offense)

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

key questions to always ask yourself when making personnel decisions
KEY QUESTIONS TO ALWAYS ASK YOURSELF WHEN MAKING PERSONNEL DECISIONS
  • Am I using job related criteria in making this decision?
  • Am I treating this person the same as I treat other similarly situated individuals?

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

historty of employment law
HISTORTY OF EMPLOYMENT LAW

Prior to 1964, pursuant to the Civil Rights Act of 1866, the only protected class was race

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

1964 title vii civil rights act
1964-Title VIICivil Rights Act

In addition to the creation of the EEOC, Title VII made it illegal for employers to treat individuals differently based on the following protected characteristics:

  • Race
  • Religion
  • National Origin (ethnic background)
  • Sex (gender)

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

title vii
TITLE VII

Discrimination prohibited as to:

  • Hiring
  • Promotion
  • Discipline
  • Termination
  • Wages
  • All other terms and conditions of employment
  • Retaliation prohibited

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

damages in 1964
Damages in 1964
  • Back wages
  • Injunctions
  • Attorneys fees

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

slide17
1967

AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

  • Age added as a protected characteristic (40 and over)
  • Liquidated damages also available
  • BEWARE: Stray remarks and skewed policies

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

slide18
1980

EEOC GUIDELINES

EEOC interprets Title VII to prohibit:

“unwelcome sexual advances, request for sexual favors and other verbal and physical conduct of a sexual nature that has the interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment”

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1986 vinson vs meritor
1986 - Vinson vs. Meritor
  • Facts
  • New Law

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

1990 americans with disabilities act ada
1990 Americans with Disabilities Act (ADA)
  • Disability is a protected characteristic
  • Definition of disability: physical or mental impairment which substantially limits a major life activity
  • In addition to prohibition of discrimination, reasonable accommodation is required

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

ada cont
ADA cont.
  • A modification need not eliminate an essential function of the job
  • Production standards need NOT be lowered
  • A modification need not be made if it creates an unreasonable hardship for the company
  • Beware: record or regarded as disabled
  • REQUIRED: Interactive Process

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

1991 civil rights act
1991-Civil Rights Act
  • Amends Title VII and the ADA, adding additional damages:
    • Compensatory damages
    • Punitive damages
    • Jury trials

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

other federal laws
Other Federal Laws
  • Pregnancy Discrimination Act of 1978 (PDA)
  • Equal Pay Act of 1963 (EPA)
  • Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)
  • Family and Medical Leave Act of 1993 (FMLA)

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

when can an individual supervisor or coworker be liable
WHEN CAN AN INDIVIDUAL SUPERVISOR OR COWORKER BE LIABLE?
  • State law torts
    • Assault
    • Battery
    • Infliction of emotional distress
    • DEFAMATION

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

slide25
HOW TO AVOID THE LEGAL PITFALLS OF THE EMPLOYMENT PROCESS

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don t hire the walking lawsuit
DON'T HIRE THE WALKING LAWSUIT

Effective Tools for Avoiding a Potential Problem Employee:

  • Application
  • Interview Effectively
  • Thorough Reference Checks
  • Drug Screening
  • Criminal Background Checks
  • Comprehensive Orientation Training
  • Introductory Periods

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

employment applications
Employment Applications
  • Require every applicant to complete an application.
  • Do not accept resumes in place of a completed application.
  • Ensure that each application is completed and signed.
  • Include questions relating to criminal history.
  • Include an arbitration provision.
  • Request comprehensive employment history.

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

employment applications28
Employment Applications
  • Evaluate completed applications carefully. Be on the look-out for:
    • Unexplained gaps in employment history.
    • Excuse making or victim mentality with respect to leaving of prior employment.
    • Incomplete applications or failure to sign the application.
    • Inconsistencies.
    • Vague description of past duties.

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effective interviewing
Effective Interviewing
  • Let the applicant do the majority of the talking.
  • Ask open-ended questions.
  • Pose hypothetical situations.
  • Ask about past experiences.
  • Don’t settle for generalized answers – ask for details or examples.

Document the interview, but be careful

where you write comments. Never write directly on the employee’s application.

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

effective interviewing questions not to ask
Age

Marital Status

Religion

National Origin

Sexual Orientation

Health Issues

Union Philosophy

Children/Pregnancy

Effective InterviewingQuestions NOT To Ask

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

verifying references
Verifying References
  • Contact former employers.
  • Inquire about rehire status.
  • Speak with former supervisors.

Recognize that many former employers

will only be willing to give a “neutral”

reference verifying only dates of employment.

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drug and alcohol screening
Drug and Alcohol Screening

Drug and alcohol abusers:

  • Have a higher incidence of workplace accidents.
  • Have a higher overall absentee rate.
  • Are less productive when they are at work.

Nevada, in contrast to a growing

number of states, permits pre-employment

screening – take advantage of it.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

criminal background checks
Criminal Background Checks
  • Limit instances of workplace violence.
  • Ensure the safety of employees, customers and clients.
  • Limit exposure for claims of negligent hiring, retention and supervision.
  • Especially important for small companies.
  • Internet sex offender registries.

If your company doesn’t currently do background checks, yesterday is a great time to start.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

comprehensive orientation training
Comprehensive Orientation Training
  • Thoroughly explain company policies and procedures.
  • Review Benefits.
  • Obtain signed employee acknowledgement upon completion.
  • Clearly set out performance expectations.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

introductory periods
Introductory Periods
  • Gives the employer an “out.”
  • Easier to explain.
  • Lower risk of legal action.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

slide36
REDUCING EXPOSURE TO LIABLITY THROUGH DOCUMENTATION, POLICIES AND EFFECTIVE EMPLOYEE RELATIONS

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comprehensive employee handbooks
Comprehensive Employee Handbooks
  • Identify employer expectations.
  • Preserve employer’s rights.
  • Limit exposure during litigation.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

the importance of accurate record keeping
The Importance of Accurate Record-Keeping
  • Wage and Hour Records.
  • I-9 Compliance.
  • FMLA and Other Leave or Accommodation Requests.
  • Attendance Records.
  • Disciplines and Employee Counseling.

Consistent and accurate record-keeping

makes your lawyers happy.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

agreements
Agreements
  • Confidentiality
  • Non-solicitation
  • Non-competition
  • Compelling Arbitration in lieu of Litigation

Take steps to ensure that nothing in these agreements alters or destroys the at-will nature of the employment relationship.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

maintain open channels of communications
Maintain Open Channels of Communications
  • Identify problems before they become a problem.
  • Reduce discrimination, harassment and retaliation claims.
  • Keep employee morale and productivity high.
  • Avoid union organizing activity.
  • Retain good employees and reduce turnover.

Employees are often a great source of information for improving efficiency or increasing productivity.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

slide41

DISCIPLINE, EVALUATIONS, AND DISCHARGE UNLAWFUL CONSIDERATIONS

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discipline evaluations and discharge unlawful considerations
Race

Gender

National Origin

Religion

Age

Sexual Preference

Whistleblowing

Veteran/Military Status

Union Activity

Disability

Worker’s Comp. Claims

Refusal to Engage in Unlawful Acts

Discipline, Evaluations, and DischargeUnlawful Considerations

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

common methods of discipline
Common Methods of Discipline
  • Verbal Warning
  • Written Warning
  • Suspension
  • Discharge

Document, Document, Document

(even the Verbal Warning)

And remember – BE PROACTIVE.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

appropriate discipline
Appropriate Discipline
  • Investigate thoroughly.
  • Discipline with respect.
  • Explain purpose of discipline.
  • Provide expectation and/or assistance.
  • Offer opportunity for comment.
  • Obtain signed acknowledgement.
  • Apply discipline consistently.
  • Ensure policies/discipline do not disproportionately impact those of a particular protected class.
  • Document, Document, Document.

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

proper performance appraisals
Proper Performance Appraisals
  • Base appraisal on:
    • Entire evaluation period (not just recent events).
    • Accurate data.
    • Actual performance - not on length of service.
    • Objective criteria – not personal feelings.
  • Provide reasons for ratings.
  • Provide expectation and/or assistance where needed.
  • Offer opportunity for comment.
  • Obtain signed evaluation.
  • Be consistent – but not routine.

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

discharge
Discharge
  • Prior to effectuation, consider:
    • Decision’s conformance with disciplinary procedures.
    • Impact of discharge on morale.
    • Effect on business-related matters.
    • Timing of effectuation (e.g., late in week, end of shift)
    • Legal implications (e.g., temporal proximity).
  • Discharge with dignity.
  • During termination meetings:
    • Have a witness present.
    • Be firm, but do not react emotionally.
    • Allow for comment.
    • Present the employee’s final paycheck - if possible.
  • Remember – BE CONSISTENT

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

slide47
CASE STUDIES

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the swearing pious employee
The Swearing, Pious Employee

An employee in your department is very vocal about his religious beliefs. Other workers tease him about his religion because he uses very foul language and talks very graphically about sex.

Is this violation of policy?

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

mr meanhead
Mr. Meanhead

Your manager is sometimes very rude to you and raises his voice unnecessarily. It makes you so upset you want to quit. Other employees say it’s just his “management style.”

Is this illegal harassment?

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

i was only joking
I Was Only Joking!!!!

You told a sexual joke to your co-workers and your supervisor overheard you. You received a written warning. No one complained about your behavior.

Should you have received a written warning?

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

don t tell anyone i just want you to know
Don’t Tell Anyone . . .I Just Want You to Know . . .

You tell your supervisor about a co-worker’s offensive behavior, but you ask the supervisor to keep the matter confidential – you just thought he should know.

Can your supervisor do this?

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touchy feely
Touchy Feely

One of your co-workers stands very close to you when he talks to you and touches you on the arm a lot. He treats other employees this way, too, but no one else seems to care.

What should you do?

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i m taking the 5 th
I’m Taking the 5th!

You are asked questions about two of your co-workers. Apparently, one of them has brought a complaint against the other under the Policy Against Harassment. You certainly don’t want to get in the middle of this dispute and tell the GM you won’t give any information.

Is this permissible under the policy?

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

more harassment scenarios
More Harassment Scenarios
  • Mary frequently gives a shoulder massage to John at his desk. She and John are good friends and both seem to enjoy each other’s company. Is this a problem?
  • Two employees of the same gender are talking about sexual experiences. Both seem equally interested in the stories. No one else is present, and they are speaking in quiet voices. Is this okay?
  • Two Hispanic employees refer to each other by using a racial term. Is this okay? If not, why?

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playing hard to get
Playing Hard to Get
  • A male employee overheard loudly saying to one of the female employees, “Hey, don’t be so sensitive! Most women would like to have somebody tell them how good they look!” There are several other employees watching this scene.
  • Upon questioning about what happened, the male says, “Nothing happened. She’s just playing hard-to-get!” The female employee turns, looks at him, and stomps off.
  • In private the male employee says that he complimented the female employee on how she looked. After being told that it is unlikely the woman would get upset about such an innocent comment, the male employee admits that he made a couple of comments about how good a couple of specific areas of her body looked.

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

playing hard to get56
Playing Hard to Get
  • Is the male employee’s conduct a violation of company policy?
  • Is the male employee’s conduct unlawful sexual harassment?
  • What should be done?

NCMA World Congress 2006

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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management