Navigating the Employment Law Minefield National Council of Higher Education Loan Programs, Inc. NCH

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Navigating the Employment Law Minefield
National Council of Higher Education Loan
Programs, Inc. (NCHELP) Spring ConventionJune
8, 2005

• Presented by
• Julie Reby Waas, Esq.
• Jackson Lewis LLP
• 2 South Biscayne Boulevard
• Suite 3500
• Miami, Florida
• 305-577-7600
• Preventive strategies.
• Positive solutions.

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Smart Hiring

• DOS AND DONTS OF EFFECTIVE JOB INTERVIEWING

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• Keys to Effective and
• Appropriate Interviewing

• Why do we interview? To obtain necessary
  information about job applicants.
• General rule limit inquiries to only those
  subjects necessary to evaluate the applicants
  suitability to perform his or her job.
• Applicants, employees and investigatory agencies
  (like the EEOC) will presume that an employer
  uses all information it collects in making hiring
  decisions.

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• Keys to Effective and
• Appropriate Interviewing

• Be sure all questions are job-related. Ask about
  applicants experience, skills, abilities and
  past performance.
• Treat all applicants the same.

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Dos and DontsImproper Questions Can Lead to
Liability

• If a job requires overtime, travel or relocation,
  explain what is required and ask whether the
  applicant can fulfill these requirements.
• Focus on the substance of a candidates
  experience rather than on the number of years of
  experience the candidate has.

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Dos and DontsImproper Questions Can Lead to
Liability

• It is permissible to ask whether an employee can
  work on Sundays, Saturdays or Friday nights, or
  any other schedule, if the job requires it.
• If you ask about convictions, make clear that
  criminal convictions are not an absolute bar to
  employment but will be considered in relation to
  specific job requirements.

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Dos and DontsImproper Questions Can Lead to
Liability

• Marriage or Family Status Avoid questions about
  marital status, number of children, and child
  care.
• Avoid questions that presume married women or
  people with children will be less able to work
  long hours. Do not request information about
  child care arrangements.

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Dos and DontsImproper Questions Can Lead to
Liability

• Avoid questions about home life, social interests
  and hobbies.
• Pregnancy childbearing plans AVOID THE SUBJECT
  ENTIRELY!!! Do not ask any applicant, male or
  female, about his or her plans to have children
  in the future.
• Age Do not ask questions or make any statements
  or references to an applicants age, including,
  date of birth or graduation date.

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Dos and DontsImproper Questions Can Lead to
Liability

• Religion Do not ask an applicants religious
  faith, denomination or affiliation, or which
  church the applicant belongs to.
• Personal appearance Do not comment on an
  applicants personal appearance or dress,
  including, in particular, hairstyles or dress
  that may be associated with a particular racial
  or ethnic group.

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Dos and DontsImproper Questions Can Lead to
Liability

• Political Affiliation Do not ask an applicants
  political affiliation or other questions that may
  elicit information about the applicants
  political views.
• Source of income Do not ask an applicant
  whether he or she receives alimony or child
  support, or other questions that may elicit
  information about the applicants sources of
  income.

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Dos and DontsImproper Questions Can Lead to
Liability

• Do not ask whether applicant is a citizen or
  applicants national origin or birthplace.
• Do not ask applicants whether they have ever been
  arrested.
• Do not ask native language, where or how the
  applicant learned the language or whether English
  is second language.

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Dos and DontsImproper Questions Can Lead to
Liability

• Club Memberships, Associations, Union
  Memberships only ask about professional or
  other associations that have a bearing on the job
  requirements.
• Sexual orientation Do not ask questions about
  sexual orientation or questions that might be
  interpreted as asking about sexual orientation
  (for example, the gender of someones roommate).

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American With Disabilities Act and
Pre-Employment Inquiries
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What is a Medical Inquiry?

• Questions About An Applicants
• current or past disabilities, their nature and
  severity
• the medical conditions or histories of family
  members
• genetic information
• workers compensation history
• prescription medications

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What is NOT a medical inquiry?

• Questions about an applicants
• well-being (how are you?)
• apparent cold or allergies
• ability to perform essential job-related
  functions

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What is a Medical Exam?

• A medical exam is any procedure or test that
  seeks information about an individuals physical
  or mental impairments or health
• vision tests
• blood or urine tests to check for alcohol use
• blood pressure or cholesterol screening

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• psychological tests designed to identify a mental
  disorder or impairment
• X-rays
• genetic testing
• nerve conduction tests that screen for possible
  nerve damage and susceptibility to injury or to
  carpal tunnel syndrome
• pulmonary function tests

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What is NOT a Medical Exam?

• Drug testing
• Physical agility or fitness tests
• Psychological tests measuring traits such as
  honesty

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ACCEPTABLE MEDICAL EXAMS AND INQUIRIES

• Before a Job Offer is Made
• No medical inquiries or examinations are allowed,
  even if they are related to the job.
• Ask whether an applicant can perform essential
  job-related functions. In addition,
• if the applicant indicates that he or she can
  perform the job, it is permissible to ask an
  applicant to demonstrate or explain how he or she
  will perform the job, with or without a
  reasonable accommodation. BUT --

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• Such a request should be made of all applicants,
  not just those with suspected disabilities,
  unless the applicants disability is known or
  obvious.
• If a known disability would not affect job
  performance, a request about how the applicant
  will perform job-related functions cannot be made
  unless asked of all applicants.

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Acceptable Medical Exams and Inquiries

• After a Conditional Job Offer is Made, but Before
  Employment Begins
• Employers can require prospective employees who
  have been given a conditional job offer to submit
  to a medical exam, or to respond to a medical
  questionnaire or other inquiries, IF all
  employees are subjected to it.

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• Employment can be conditioned upon the results of
  the inquiry or exam, as long as the
  nondiscrimination provisions of the ADA re not
  violated.
• Information obtained from such exams and
  inquiries must be maintained on separate forms
  and stored as a confidential record separately
  from personnel files. Such information can only
  be known to
• supervisors and managers, if necessary to
  implement work restrictions or reasonable
  accommodations

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• first aid and safety personnel, if appropriate
  (if the disability might require emergency
  treatment) and
• government officials investigating compliance
  with the ADA, upon request.
• Prospective employees who request reasonable
  accommodations can be asked post-offer to provide
  medical certification and comply with other rules
  relating to the reasonable accommodation process.

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PROGRESSIVE DISCIPLINE

• A FAIR TREATMENT PRACTICE

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BASICS OF DISCIPLINE

• Advance Notice
• Documentation
• Investigation
• Timeliness
• Consistency
• Fair and Impartial

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TWO QUESTIONS

• Should we discipline?
• If so, at what level?

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SHOULD WE?

• Is there a known policy or standard?
• Is it reasonable?
• What is the past practice?
• Have we investigated (if necessary)?

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AT WHAT LEVEL?

• What is the past practice?
• What is the Employees prior record?
• How serious is the offense?

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JURYS PERSPECTIVE

• FAIRNESS ..... OR ELSE.....

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The Defensible Termination
GOODREASON
FAIRNESS


DEFENSIBLE
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What are the Rules of the Game?

• - Written
• - Published
• Orientation
• Employee Handbook
• Memos
• Bulletin Boards
• Staff Meetings
• - Review for Consistency
• - Department Specific?
• - Signed Acknowledgement

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Notification of Violation

• Contemporaneous Notification
• Reduce Risk of Set Up
• Consistent Enforcement
• Reduce Risk of Disparate Treatment Claims
• Comparator Data
• No Notification No Violation?
• Notification of Consequences for Future
  Violations

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• DOCUMENTATION
• DOCUMENTATION
• DOCUMENTATION

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SEXUAL HARASSMENT
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WHAT IS SEXUAL HARASSMENT?

• Engaging in verbal or physical conduct of a
  sexual nature which is either made a condition of
  employment, OR is used as a basis for employment
  decisions, OR which creates a hostile work
  environment

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EXAMPLES OF SEXUAL HARASSMENT

• Graffiti
• Posters
• Calendars
• Vulgarity
• Propositions
• Touching
• Intimidation
• Abusive Language

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Who Is The Harasser?

• Supervisors
• Co-Workers
• Non-Employees

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A Supervisors Personal Liability

• Civil Assault and Battery Charges
• Intentional Infliction of Emotional Distress
• Invasion of Privacy
• Criminal Liability

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Where Does Sexual Harassment Occur?

• At the workplace
• Off premises at employer sponsored events
• Off premises at non-sponsored events

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The Companys Responsibility
THE KEYS TO LIMITING OR AVOIDING LIABILITY 1.
Adopt, enforce and take seriously the Companys
policy against harassment 2. Train managers and
supervisors, as well as employees on the policy
and the complaint procedure 3. Promptly report
all violations and complaints to Human Resources
and 4. Monitor the workplace to insure the
policy is being followed
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MANAGERS RESPONSIBILITY

• ABC Test
• Appropriate
• Business
• Conduct

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A Jackson Lewis Presentation