HR Bootcamp

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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
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Top Ten Ways to Get Sued
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Top 10 Ways to Get Sued

• 1. Say something stupid
• We dont 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

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Top 10 Ways to Get Sued

• We cant 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

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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).

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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

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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

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Americans with Disabilities Act
Always a Disability

• Deafness
• Blindness
• Intellectual disability (formerly mental
  retardation)
• Missing limbs
• Mobility impairments

• Autism
• Cancer
• Cerebral palsy
• Diabetes
• Epilepsy
• HIV/AIDS
• Multiple sclerosis

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Episodic and Mental Conditions

• Hypertension
• Asthma
• Depression
• Bipolar disorder
• Anxiety disorders
• Panic disorder
• Obsessive compulsive disorder
• Post-traumatic stress disorder
• Schizophrenia
• Personality disorders

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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)

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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 dont violate
  the law. Take constant complainers whiners
  seriously!

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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 employers responsibility to
  accommodate (not whether there is a disability).

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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

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HR Says

• Accommodation can be an easy solution!
• Ergonomics
• Schedule adjustment
• Needs to be reasonable (not necessarily what they
  are asking for)

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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

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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)

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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

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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

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Top 10 Ways to Get Sued

• 2. Dont hire the qualified candidate
• We decided to hire somebody younger.
• EEOC v. Southern Scrap Metals Co, EEOC press
  release 6/17/10

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Top 10 Ways to Get Sued

• 3. Dont bother accommodating an employee (he is
  just a whiner).
• ADAAA/religious accommodation
• Ergonomic considerations

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Top 10 Ways to Get Sued

• 4. Give raises to people you like.
• Have a compensation plan and process

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Discriminatory Pay

• Equal Pay Act of 1963, (EPA)
• Requires employers to pay men and women equal
  pay for equal work within an establishment

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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

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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).

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Stereotype a lawsuit waiting to happen

• Youre hired Bad back? Youre 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).

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Top 10 Ways to Get Sued

• 6. Be an Ostrich
• Notice of sexually harassing conduct triggers
  employers 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

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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

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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

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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 Dont ignore claims of favoritism

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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.

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Top 10 Ways to Get Sued

• 10. Dont worry about why your employee is gone,
  just discipline him when he gets back according
  to the attendance policy.

• HR says Use caution with leave issues. ADA may
  require extra leave.

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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

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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
• Employees own serious health condition

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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

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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

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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

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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)

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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

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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

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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

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Sexual Orientation

• Title VII does not protect, but
  stereotyping/gender nonconformity may offer
  protection
• In 29 states, its still legal to fire someone
  solely because theyre lesbian, gay, or bisexual
• In 34 states it is legal to fire someone solely
  for being transgender.

• 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)

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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 _at_BobbieJFox

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Q A