NAVIGATING THE MANAGEMENT MINEFIELD

1. NAVIGATING THEMANAGEMENT MINEFIELD Kerry E Notestine

2. MANAGERS AND SUPERVISORS ARE TARGETS • Eyes and ears and voice of the Company -- the perceived “deep pocket” • Often managers are the first to know of issues/problems • Company’s duty to defend • Individual liability and responsibility

3. INTRODUCTION • NUMERICAL SIGNIFICANCE • 2,000% Increase In Number Of Cases • 100,000 Backlogged EEOC Charges • Likelihood Of Litigation Has Increased (50.6% Of Employers Report Greater Likelihood Than 5 Years Ago).

4. INTRODUCTION • COMPLEXITY OF WORKPLACE RULES • New Case Law • Greater Awareness Of Individual Rights • Growth Of The Plaintiffs’ Bar

5. INTRODUCTION • EMPLOYMENT LAW ISSUES TOUCH MANAGERS AND SUPERVISORS PERSONALLY • Individual Liability Accompanies Employment Law Litigation • Cost Of Defense Includes Loss Of Management Time • Increased Standards Of Individual Awareness And Training

6. INTRODUCTION TO EEO LAW Fairness and Consistency C.O.U.C.H. (Communicate, Objectively, Uniformly, Contemporaneously and Honestly) No Good Deed Goes Unpunished

7. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 • Who Is Protected? National Origin Race Religion Sex Color

8. AGE DISCRIMINATION IN EMPLOYMENT ACT • Individuals Over the Age of Forty • No Upper Age Limit

9. OTHER FEDERAL EEO LAWS • Equal Pay Act • Civil Rights Act of 1866 and 1871 • Executive Order 11246 • The Rehabilitation Act • The Pregnancy Discrimination Act • The Immigration Reform and Control Act of 1986

10. TEXAS COMMISSION ON HUMAN RIGHTS ACT • The TCHRA Prohibits Employers From Discriminating on the Basis of Race, Color, Disability, Religion, Sex, National Origin, and Age • Any Employer Engaging in an “Industry Affecting Commerce With Fifteen or More Employees for Each Working Day in Each of Twenty or More Calendar Weeks in the Current or Preceding Year and Any Agent of That Person.”

11. BASIC PRINCIPLES OF EQUAL EMPLOYMENT OPPORTUNITY • Equal treatment for equal qualifications, skills and abilities • Decisions based on valid business related reasons • Policies and rules enforced uniformly and consistently • Equal impact of neutral standards • Avoidance of stereotypes • Reasonable accommodation

12. KNOW INTERNAL POLICIES • Employee Handbook • Equal Employment Opportunity Policy • Harassment Policy • Family and Medical Leave Policy • Attendance and Punctuality • Disciplinary Action Policy • Substance Abuse Policy

13. SUPERVISORY “DO’S” • IMMEDIATELYInvolve Human Resources And Investigate All Claims • Take Prompt And Effective Remedial Action • Recognize That Sexual Harassment Law Is Different • Policy Should Be “Hands Off” • Find Other Things To Talk About • Includes Other Categories, Such As Racial, Ethnic, Disability

14. SUPERVISORY “DONT’S” • Make Unwarranted Assumptions • Reach A Conclusion Before Conducting An Investigation • Delegate All Responsibility For Preventing Harassment

15. 7 6 5 4 3 2 1 Supervisor’s Template: 7 Stepsfor Dealing with the Injured / Disabled Employee

16. OSHA 1 CONSIDER Workplace Safety Issues (OSHA)

17. SAFETY ISSUES • Safety First! • If Work Related Injury, Review Causes • Eliminate Known Hazards • Recordkeeping • Required Reports

18. 2 Step Two:Determine FMLA Coverage

19. FMLA:ELIGIBILITY REQUIREMENTS • Employee: Worked for 1 Year for Employer • Employee: Worked 1,250 Hrs. In Prior Year • Employee: Has “Serious Health Condition”

20. FMLA:IF EMPLOYEE IS ELIGIBLE • Employer Duty: Begin Counting Immediately • Days May Be Double Counted As Both FMLA and As “Other” – Paid Sick Leave, Etc.

21. FMLA:IF EMPLOYEE IS ELIGIBLE • Provide Forms • Consider Possible Challenges to Coverage • Get Ready for Intermittent Leave

22. 7 6 5 4 3 2 1 Supervisor’s Template: 7 Stepsfor Dealing with the Injured / Disabled Employee .

23. Step Three: Determine if theInjury / Disabilityis Work Related

24. Relation to the Workplace • If Work Related, Provide Workers Comp. Forms • Notify Carrier or Claims Administrator • Denial of Relationship Between Injury and WorkplaceMust Be Made Promptly

25. 7 6 5 4 3 2 1 Supervisor’s Template: 7 Stepsfor Dealing with the Injured / Disabled Employee .

26. Step Four:Evaluate ADA Coverage

27. “DISABILITY” DEFINED • Physical or Mental Impairment That Substantially Limits One or More Major Life Activities OR • A Record of a … OR • Being Regarded As Having a ...

28. “QUALIFIED INDIVIDUAL WITH A DISABILITY” • An “Individual With a Disability” Who Can Perform the Essential Functions of the Job Held or Applied For, With or Without Reasonable Accommodation

29. TWO FUNDAMENTALOBLIGATIONS • Don’t Discriminate • Do Accommodate

30. Not Required of Employers • Transferring Another Person to Make Room for a Disabled Individual

31. 7 6 5 4 3 2 1 Supervisor’s Template: 7 Steps for Dealing with the Injured / Disabled Employee

32. Step Five:Ensure Appropriate Confidentiality

33. CONFIDENTIALITY • Securing Records • Limiting the Scope and Nature of Inquiries – Balance the Natural Tension Between ADA and FMLA Inquiries

34. 7 6 5 4 3 2 1 Supervisor’s Template: 7 Stepsfor Dealing with the Injured / Disabled Employee .

35. Step Six:Evaluate Application of Employer Policiesand Practices

36. EMPLOYEE HANDBOOK EMPLOYERPOLICIES & PRACTICES • Employee Handbook • Past Practice

37. 7 6 5 4 3 2 1 Supervisor’s Template: 7 Stepsfor Dealing with the Injured / Disabled Employee .

38. STEP SEVEN:ONGOING MONITORINGAND FOLLOW UP

39. LATE STAGE ISSUES • Ongoing Monitoring of All Available Leaves • Keeping Employee Notified

40. LATE STAGE ISSUES Making a Record of Accommodations Offeredand Suggested Employee Does Not Return From FMLA Leave

41. EVALUATIONS, DISCIPLINE AND CORRECTIVE ACTION

42. EVALUATION: A POWERFUL TOOL • Do it regularly. • Be objective. • Be consistent. • Focus on factors important to job. • Review with employee.

43. EFFECTIVE EVALUATIONS • Evaluate the performance, not the person. • Avoid grade inflation. • Do evaluations which are: • Timely • Honest • Correlate with employee’s job

44. EFFECTIVE EVALUATIONS • Document facts, not conclusions. • Use active voice: You failed to complete your projections---NOT The projections were not completed. (Assign responsibility to the employee.) • Avoid unsupported judgments.

45. EFFECTIVE EVALUATIONS • Avoid unreferenced judgments. • Avoid unsupportable judgments. • Avoid making excuses for employee. • Avoid directions which fail to direct.

46. EFFECTIVE EVALUATIONS • Cover the entire evaluation period. • Allow employee to explain disagreement, but don’t negotiate evaluation. • Consider narratives rather than checklists.

47. THE POOR PERFORMER: TWO APPROACHES • Clearly communicate expectations, with ongoing monitoring of performance so employee may improve and correct deficiency. • Create a written record to support decision to terminate employee who does not contribute.

48. CORRECTIVE ACTION PLAN • State clear goals. • Let employee participate in goals. • Let employee know how falling short. • Let employee know how performance will be measured.

49. CORRECTIVE ACTION PLAN Build in timetables. Focus on training Let employee know consequences if he does not meet expectations. Get employee’s commitment in writing Follow up

50. DOCUMENTATION OF MISCONDUCT what you... Document • WHO (witnesses, supervisors) • WHEN • WHAT • WHY NOT? saw heard smelled touched