Title: Navigating the Employment Law Minefield National Council of Higher Education Loan Programs, Inc. NCH
1Navigating 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.
2Smart Hiring
- DOS AND DONTS OF EFFECTIVE JOB INTERVIEWING
3- 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.
4- 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.
5Dos 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.
6Dos 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.
7Dos 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.
8Dos 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.
9Dos 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.
10Dos 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.
11Dos 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.
12Dos 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).
13American With Disabilities Act and
Pre-Employment Inquiries
14What 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
15What 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
16What 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
17- 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
18What is NOT a Medical Exam?
- Drug testing
- Physical agility or fitness tests
- Psychological tests measuring traits such as
honesty
19ACCEPTABLE 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 --
20- 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.
21Acceptable 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.
22- 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
23- 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.
24PROGRESSIVE DISCIPLINE
- A FAIR TREATMENT PRACTICE
25BASICS OF DISCIPLINE
- Advance Notice
- Documentation
- Investigation
- Timeliness
- Consistency
- Fair and Impartial
26TWO QUESTIONS
- Should we discipline?
- If so, at what level?
27SHOULD WE?
- Is there a known policy or standard?
- Is it reasonable?
- What is the past practice?
- Have we investigated (if necessary)?
28AT WHAT LEVEL?
- What is the past practice?
- What is the Employees prior record?
- How serious is the offense?
29JURYS PERSPECTIVE
- FAIRNESS ..... OR ELSE.....
30The Defensible Termination
GOODREASON
FAIRNESS
DEFENSIBLE
31What are the Rules of the Game?
- - Written
- - Published
- Orientation
- Employee Handbook
- Memos
- Bulletin Boards
- Staff Meetings
- - Review for Consistency
- - Department Specific?
- - Signed Acknowledgement
32Notification 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
33- DOCUMENTATION
- DOCUMENTATION
- DOCUMENTATION
34SEXUAL HARASSMENT
35WHAT 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
36EXAMPLES OF SEXUAL HARASSMENT
- Graffiti
- Posters
- Calendars
- Vulgarity
- Propositions
- Touching
- Intimidation
- Abusive Language
37Who Is The Harasser?
- Supervisors
- Co-Workers
- Non-Employees
38A Supervisors Personal Liability
- Civil Assault and Battery Charges
- Intentional Infliction of Emotional Distress
- Invasion of Privacy
- Criminal Liability
39Where Does Sexual Harassment Occur?
- At the workplace
- Off premises at employer sponsored events
- Off premises at non-sponsored events
40The 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
41MANAGERS RESPONSIBILITY
- ABC Test
- Appropriate
- Business
- Conduct
42A Jackson Lewis Presentation