FORT VALLEY STATE UNIVERSITY Employment Law Training 2012

FORT VALLEY STATE UNIVERSITY Employment Law Training 2012 Jeffery L. Thompson Constangy, Brooks & Smith, LLP Telephone: 478 -621 -2414 E-mail: jthompson@constangy. com

Let’s Talk About the Law !

QUESTION #1

What Is Discrimination? n n Cannot take an adverse employment action (discriminate) based on race, color, sex, religion, or national origin with respect to employment practices, terms or conditions of employment. Discrimination is found by words (e. g. , racial), actions (treating people differently), or statistics (firing only women or those over 40).

Title VII of Civil Rights Act of 1964 n Prohibits Discrimination n Race n Color n Religion n National n Gender n Sex Origin

Let’s Talk About the DOCUMENTATION

Before Corrective Action Ask: n Are you doing what is moral/ethical? n Does this make good business sense? n n Is the discipline or discharge consistent with the seriousness of the performance problem or disciplinary violation ? Are you treating the employee consistently with other employees who committed the same offense?

Are You Following Your Written Policies? n Do you have a progressive disciplinary policy? n n At what step is the employee? n n Does the employee know about the policy? Is deviation from the policy warranted? Do any other policies impact your decision? n Attendance, Leave, Disability, etc. ?

What Should Be Contained In A Corrective Action Memo n Date n Specific Violation n Mention Any Prior Related Discipline n If No Improvement- What Will Happen? n Employee Response n Employee Commitment n Signature of Employee n Supervisor’s Follow Up

What Concerns Your Lawyer - Inconsistent Treatment - Inaccurate Performance Reviews - Progressive Discipline Not Followed - Untimely Investigations - Untimely Discipline - Unsigned Discipline - Secret Files

Five Most Common Reasons Employers Are Sued 1. Failure to communicate job expectations 2. Failure to give notice when employees are not meeting them 3. Absence of an opportunity to defend 4. Lack of consistency 5. Insult to dignity

Retaliation 1. Engaging in protected activity 2. Suffering an adverse action 3. Causation

QUESTION #2

Americans with Disabilities Act Amendments Act

Disability Defined n Physical Or Mental Impairment That “Substantially Limits” Major Life Activity, n Record Of Such An Impairment, or n Regarded As Having Impairment

“Substantially Limited” Under ADAAA n n Disabled Means Substantially Limited From Major Life Activity Only One “Major Life Activity” Need Be Limited Episodic Impairments, Or Impairments In Remission Are Still “Substantially Limiting” “Good” Mitigating Measures Are Not To Be Considered (i. e. Medication)

“Major Life Activities” n Caring for oneself n Performing manual tasks n Seeing n Hearing n Walking n Speaking n Breathing n Learning n Working

“Major Life Activities” Continued All of those, plus n Eating n Sleeping n Standing n Lifting n Bending n Reading n Concentrating n Thinking n Communicating

And The New Regulations Add n Sitting n Reaching n Interacting with others

“Major Bodily Functions” Completely new n Immune system n Normal cell growth n Digestive n Bowel n Bladder n Neurological n Brain n Respiratory n Circulatory n Endocrine n Reproductive

And The New Regulations Add n Special sense organs n Skin n Genitourinary n Cardiovascular n Hemic n Lymphatic n Musculoskeletal

IMPORTANT NOTE! n EEOC’s regulations provide that these are NOT all-inclusive lists.

What To Do If You Encounter ADA Issue With An Employee? n Engage in Interactive Process n n May Need Information From Physician May Be Necessary To Send To Specialist n Determine If Employee Can Be Accommodated n Determine If Accommodation Would Cause Undue Hardship n Involve HR/Legal In Process

QUESTION #3

Family Medical Leave Act FMLA

What Is The FMLA? n Federal Law that states eligible employees entitled to at least 12/26 weeks of health insurance continuation and job protected leave per defined twelve-month period.

Eligible Employee n n Employed 12 months (consecutive or nonconsecutive); and Worked at least 1250 hours during the 12 months preceding the commencement of the leave.

Eligible Leave What Types of Leave Qualify for FMLA Leave?

FMLA Qualifying Leave n n Birth or Placement of Child for Adoption To care for spouse, child, or parent with serious health condition n Employee’s own serious health condition n Qualifying Exigency (military related only) n Military Caregiver leave

Serious Health Condition Defined n n Inpatient treatment Incapacity of three consecutive full calendar days with: n Treatment 2 or more times Or n One treatment plus a regimen of continuing treatment

Serious Health Condition Continued n Pregnancy/Prenatal n Chronic conditions n Permanent/Long-term n Condition requiring multiple treatments

Serious Health Condition n n Does not include routine physicals, eye examinations, or dental examinations, and at home treatment by itself is not sufficient Cosmetic not covered unless inpatient/complications Ordinarily, common cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontia, periodontal disease not covered absent complications Substance abuse treatment covered, but can apply “established policy” to use of illegal drugs.

Intermittent Leave The Employer’s Headache n n Defined as leave taken in separate blocks of time because of a single illness or injury rather than for one continuous period of time. May be taken in periods from one hour or more to several weeks.

Intermittent Leave (cont. ) n n Taken due to an employee’s serious health condition or that of a family member. Cannot be used for birth or placement of a child without the employer’s permission, unless either the mother or newborn child has a serious health condition.

Intermittent Leave (cont. ) n n Only the amount of leave actually taken may be counted toward the 12 weeks of FMLA leave. If an employee normally works a part-time schedule or variable hours, the amount of leave which an employee has used is determined on a pro rata or proportional basis by comparing the new schedule with the employee’s normal schedule.

New Interpretation Clarifying Definition of “Son or Daughter” under FMLA in loco parentis = Acts as child’s parent n Not necessarily a biological or legal relationship to child n Could include step-child n For step-families, all four parents are included n Does not appear to require day-to-day responsibilities n n Allows employers to require certification of the qualifying relationship Opinion demonstrates trend to be more expansive

Notice n n If the necessity for leave is based on an expected birth or placement which is foreseeable, the employee must provide the employer with at least 30 days’ notice before the date leave is to begin. If the date of birth or the placement requires leave to begin in less than 30 days, the employee must provide notice as soon as practicable.

Notice (cont. ) n n Where the need for leave is not foreseeable, the employee must give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. In the case of a medical emergency, advance notice may not be required.

Social Networking and Harassment In The Workplace

QUESTION #4

Problems Arising from Social Networking n Ability to harass 24 hours a day, 7 days a week!

“While technology can put a new spin on how harassment manifests, the responsibility of employers to take harassment seriously is not new, ” said Luis Lucero, director for the EEOC’s Seattle Field Office overseeing the case. “Text messages, instant messaging, and social networking certainly contribute to the blurring of formal lines of communication. However, the law holds employers liable for the actions of their supervisors and managers, so training them to prevent and redress harassment, no matter what the medium, is critical. ”

The Most Common Harassment in Social Networking: Sexually Related or Other Vulgar Comments n E-mails n Internet Pornography n Sexting n Stalking n

Is This Really Something To Worry About? What do you think?

I Would Never Do Anything Like That, So Why Worry? “All that is necessary for the triumph of evil is that good men do nothing. ” (or do less than they should)

Other Behaviors That Constitute Sexual Harassment: n Innuendo n Invading space n Jokes of a sexual nature n Sexist comments n Whistling/Catcalling n Gender-based jokes n Discussions about sex n Gifts suggesting intimacy n Emails containing sexual references/pornography n Comments about appearance n Staring n Requests for dates n Inappropriate photos on Facebook and My. Space or other social networking sites accessible to employees n Displaying materials containing sexual content; for example, screen savers

The Most Common High-Risk Behaviors: n Relationships With Co-workers n Relationships With Students n Texting Suggestive Comments

Relationships With Students Perceptions: n Favoritism n Unfair influence Repercussions: n Low morale n Negative work environment n Violation of USG Policy n Legal liability

Flirting/Courting Students USG Policy Manual: • The University prohibits all faculty and staff, including graduate teaching assistants, from pursuing amorous relationships with undergraduates whom they are currently supervising or teaching.

Relationships With Co-Workers USG Policy Manual: • The University strongly discourages amorous relationships between faculty or administrators and graduate/professional students and/or employees whose work they supervise. • Anyone in an amorous relationship with someone ( s)he has supervisory power over must recuse themselves from decisions effecting compensation, evaluation, employment conditions, instruction, and/or the academic status of the subordinate involved.

Other Examples of Harassment n n n n Inappropriate touching, sexual comments, jokes, etc. Gender - “Women don’t belong here; ” “ Women can’t do this kind of work; ” “He’s such a girly-boy. ” Race – “Boy”; hangman’s noose; “N” word. National Origin -Wetbacks; Dots and Feathers; Gooks; camel jockey. Disability - “Cripple”; “Retard”. Age -“Can’t keep up, Gramps? ”; “He’s too old to cut the mustard”; you are too old to learn this new technology. Religion -“Why can’t you people go to church on Sunday like God intended? ”

Can You Be Individually Liable For Harassment? n n n Might be individually liable under state harassment laws Might be individually liable for assault and battery and intentional infliction of emotional distress. This means you would incur attorneys fees + any judgment.

Question #5

facebook Womanscorned Had a sh**y day at work today!! 6 people like this bestfriend Girlfriend, wassup? ! Womanscorned Dumb __! supervisor lied on me! Gave me a crappy eval so no raise. We know its just to please “the princess” who hates me! Somebody needs to do something about it!

Facebook Firings - Public Institutions n n NLRA does not apply Freedom of Speech concerns n private citizen v. job related n Does the speech relate to: any matter of political, social, or other concern to the community. n If yes, than proceed to the Pickering balancing test n Pickering balancing n Whether the speech at issue impedes the government’s ability to perform its duties efficiently, n The manner, time and place of the speech, and n The context within which the speech was made.

Question #6

FINAL THOUGHTS Management’s Key Role n Coach n Mentor n Facilitator of Employee’s Success

Questions