Missouri Police Chiefs Charitable Foundation 2018 Law Enforcement

Missouri Police Chiefs Charitable Foundation 2018 Law Enforcement Combined Conference August 5, 2018 Daniel J. Doetzel 13354 Manchester Road, Suite 100 St. Louis, MO 63131 (314) 862 -6542 E-mail: dandoetzel@hessemartone. com

Top 10 HR Mistakes Part 1 - Failure to Train Managers/Supervisors

Gaining Commitment from Managers Why should you train your managers and supervisors? • • • Productivity issues. Liability for discriminatory actions. Your policies prohibit it. Workplace interruptions. Legal fees.

Gaining Commitment from Managers It’s the Law!

It’s the Law • Federal laws prohibit an employer from discriminating against an individual because of such individual’s race, color, sex, pregnancy, national origin, age, citizenship, union and collective activities, veteran status, disability, genetic information, religion and (depending on the jurisdiction) factors such as family status, sexual orientation, etc. • Prohibit harassment of an individual based upon any protected characteristic. Ø Ø Legally distinct. Focus on appropriateness of conduct. Supervisor (vicarious) liability. Duty to act. • • Prevent harassing behavior. Prompt remedial action.

Litigation Prevention Key employment litigation prevention principles: • Communicate effectively with job applicants, employees, and former employees to put reasonable limits on their expectations. • Make written records of employment-related problems and the steps taken to resolve them. • Treat employees in similar circumstances consistently. • Handle employee complaints empathetically, promptly, and effectively by an internal procedure. • Consciously consider the fairness of every action involving job applicants, employees, and former employees. • Conduct the process by which the business reaches employment-related decisions fairly and assure that it looks fair to all.

Scratching the Surface Thoughts on Harassment • Would you want the same thing said or done in front of your spouse, sibling, child or parent? • Does it need to be said or done at all? • Does it serve any useful business purpose? • Would you want to be seen on the six o’clock news saying or doing it? • Focus on policy/appropriateness of conduct.

Scratching the Surface Retaliation Ø Protected activity: • Making a complaint of discrimination/harassment. • Protesting discrimination (including against others). • Testifying or providing information to agencies. • Expressing support on behalf of co-workers who have claimed discrimination. • The employee must only have a good faith belief that the underlying conduct violated the law – he/she does not have to be correct.

Preventing Retaliation • Start with a non-retaliation policy and enforce it. • When an employee makes a claim of discrimination, harassment or other unlawful conduct, the managers, supervisors and coworkers who work with the complainant should be counseled concerning their obligations to prevent retaliation. Ø This counseling should be documented.

Preventing Retaliation • Complainants should not be ignored or treated as pariahs. • Management, usually through HR, should explain its policy against retaliation and procedure for redress to the complainant. • The complainant should be given a copy of the policy and provided with a way to report any problems that he or she experiences. • Follow-up with the employee and ask whethere have been any incidents of retaliation or other problems.

Preventing Retaliation • Consider restructuring the environment. Ø Allow the complainant to report to a different supervisor, change performance evaluators, implement alternative work schedules, or even permit telecommuting to reduce the risk of retaliation. Ø Be sure that these changes do not appear to be retaliatory and have the complainant sign off on the change to document the complainant’s agreement to it.

Preventing Retaliation • Any actions taken with regard to the complainant should be reviewed by human resources, legal counsel or other management personnel before they are taken. • Be careful – restructuring the environment can be seen as retaliatory.

Food for Thought

Food for Thought Question 1 Gloria works for a temp agency, which sent her to a large insurance office to do clerical work while an employee is on maternity leave. Most of Gloria’s co-workers are friendly and make an effort to make her feel welcome. But Al, who Gloria sees only infrequently, criticizes her for wearing religious jewelry. When she asked him not to comment on her jewelry, he refused and became openly hostile toward her. Is Al’s behavior acceptable? a) Yes, because Gloria is only a temporary employee. b) Yes, because Al’s comments are not work-related. c) Yes, because Al sees Gloria only infrequently. d) No, because Al’s conduct is offensive to Gloria and possibly others.

Food for Thought Answer: d) Al’s behavior is unacceptable on two counts. Because his comments about Gloria’s jewelry are offensive to her, Al should respect her wishes and stop talking about her jewelry. Moreover, his open hostility in response to Gloria’s request could violate his employer’s policy against retaliation. Wait! How can a co-worker retaliate? Ø Taking action that would dissuade others from coming forward with a complaint.

Food for Thought Question 2 True or false: A victim of harassing or discriminatory behavior tells a supervisor about the behavior, but then asks that no one else be told. To respect the employee’s wishes, the supervisor should not take further action. False.

Food for Thought Answer: False. Even if a person who reports harassing or discriminatory behavior asks that no action be taken, an organization that does nothing in response can later be liable if the behavior creates a hostile work environment. The organization, through the supervisor, has been made aware of the situation and must now investigate and take any necessary corrective action.

Top 10 Costly Employment Mistakes Part 2 – Improper Interview and Application Questions

The Application Get off on the right foot. Ø Certain job application questions can lead to legal troubles and lawsuits. Ø Questions to avoid include those about: Ø Age: Ø Ø Job applications cannot ask for the candidate’s date of birth. Gender. Ø Related to this, no application should ask if the candidate has children, a family or how the candidate handles childcare. Ø These types of questions can be viewed as gender specific and used against you in a gender discrimination lawsuit.

The Application Get off on the right foot. Ø Title VII and state laws also prohibit questions on applications about an individual’s ethnicity, race and national origin: Ø In addition, employers who require applicants to submit a photo with an application run the risk of having that used as evidence of the employer’s attempt to identify race, color, national origin or ethnicity prior to interviewing a candidate. Ø It is also illegal to ask about an individual’s religion, workers’ compensation history, citizenship (as opposed to eligibility to work in the U. S. ) and possibly even wage garnishments.

The Application Get off on the right foot. Ø Disability and Medical Questions: Ø Job applications cannot have any questions related to disabilities or physical limitations. Ø The ADA prohibits inquiries about past or current health problems and medical conditions. Ø Employers may ask only if candidates can perform the essential job functions with or without reasonable accommodation.

The Application Get off on the right foot. Ø Criminal History: Ø The EEOC considers questions about a candidate’s arrest record and criminal history improper unless the applicant is being considered for a security-sensitive job (examples include nurse, social worker, law enforcement officer). Ø The EEOC believes that an arrest record does not establish that criminal conduct has occurred and that a job exclusion based on an arrest, in itself, is not job-related and consistent with business necessity.

Focus on the Particular Job Focus on the job and its requirements. Ask yourself: “Who has the knowledge, skills, and abilities that best match the requirements of this job? ” Know essential job functions. Determine who best meets the job’s requirements. Retain applicant records – most employers need to keep hiring records for a specific period of time.

Avoiding Discriminatory Questions Avoid questions that mention impermissible factors or may be used as evidence of discrimination. Have you ever been arrested? Are you married? What religious holidays do you practice? Do you have children? How many? What country are you from? Is English your first language? Do you socially drink? When was the last time you used illegal drugs?

Disability-Related Questions Disability-related questions, asked before a job offer, are banned by the Americans with Disabilities Act. A disability-related question is any question that is likely to elicit information about a disability.

Disability-Related Questions • “Can you perform the functions of this job? ” • “What medications are you currently taking? ” • “How well do you handle stress? ” • “How did you break your leg? ”

Ask yourself … "Is this information really needed to judge an applicant's competence or qualifications for the job in question? "

Avoiding Discriminatory Questions Examples of appropriate questions (job-related!!): Are you willing and able to work overtime as necessary? Can you perform the essential functions of the job? What days are you available to work? Can you work the required schedule? What are your long-term career goals (as opposed to age or gender related questions)? Can you lift items weighing 50 pounds?

Top 10 HR Mistakes Part 3 – Incomplete or Inaccurate Job Descriptions

Job Descriptions What is a job description? In short, a formal, written statement of duties, qualifications and responsibilities associated with a particular job.

Job Descriptions What are job descriptions used for? Hiring – a good job description serves as an important guideline for selection of new employees. Allow managers to direct job searches toward a person with the exact competencies the job requires. Allow interviewers to ask questions that are related to specific job requirements and duties.

Job Descriptions What are job descriptions used for? Evaluating Performance – supervisors can use job descriptions to check an employee’s performance against the specific requirements of the job and more precisely measure performance and explain the evaluation of it. Job descriptions can also help clarify employee expectations and allow better communication about what employees must do to satisfactorily perform their jobs.

Job Descriptions What are job descriptions used for? Establishing FLSA Status – good job descriptions indicate whether the job is exempt or non-exempt according to the provisions of the FLSA. Accurately identified job duties can help establish the exempt status of a particular position. Listing specific job tasks, the importance of and amount of time spent on those tasks, reporting structure and other factors may help avoid liability for alleged failure to pay overtime.

Job Descriptions What are job descriptions used for? ADA Compliance – job descriptions should list the essential functions and qualifications required of the position. Through a careful job analysis, an employer may use a good job description to identify the essential functions of a position and the qualifications required to perform it, with or without reasonable accommodation. This will help an employer establish that job functions apply equally to all employees that hold a particular position and establish that the decision not to hire a disabled applicant was not discriminatory. Job descriptions can also be used to help determine what accommodations, if any, can be provided to help an applicant/employee perform the essential functions of the job.

Job Descriptions What should job descriptions include? Job title. Salary or compensation range. Location and hours. Reporting structure (include manager’s title and titles of direct reports). Education, experience required/desired. Job specifications should detail the specific knowledge, skills, abilities and competencies that are required to perform the essential job functions. Typical elements include education, years and type of experience, training, licenses, certifications, etc.

Job Descriptions What should job descriptions include? Job summary – a brief outline of the job responsibilities. Detailed list of actual duties and responsibilities. Include multiple, separate statements that itemize the primary duties or essential functions of the job as well as the non-essential job functions. Duties should be presented in a logical order (i. e. , list in order of time spent, with tasks that occupy the most time first) and include information regarding percentage of time spent on each task. In general, essential job functions describe the tasks that the position exists to perform, while non-essential functions are desirable, but not necessary, aspects of the job.

Job Descriptions What should job descriptions include? Physical demands of the position. Include specific physical activities required to perform the job (i. e. , lifting, bending, walking – how much, how often). Environmental factors associated with the job – explain the physical environment (i. e. , safety conditions, physical dangers associated with position) and working conditions (i. e. , exposure to extreme temperatures, chemical or biological hazards, dust, noise, etc. ).

Top 10 HR Mistakes Part 4 – Misclassifying Employees as Exempt

Overview Exempt Employees vs. Non-Exempt Employees

FLSA Exemptions: Non-exempt Employees Non-exempt employees are entitled to: Ø Minimum wage. Ø Overtime.

FLSA Exemptions: Exempt Employees • Exempt from minimum wage and overtime requirements. • Must fit into specified exceptions in the law. • “White collar” exemptions: Employees are exempt if they meet “duties” and “salary” test.

FLSA Exemptions: Exempt Employees Ø Salary test. • Paid on a salary basis, regardless of the hours worked. Ø Salary basis means employees must regularly receive the same amount on payday, regardless of the hours worked, and generally cannot be docked for hours not worked in a day. Ø Fixed pay for fluctuating hours. Ø Typically, salary must be at least $455 per week.

FLSA Exemptions: • 3 primary types of exemptions: Ø Ø Ø • Executive. Administrative. Professional. Based on employee’s actual job duties, not job title or inaccurate job descriptions.

FLSA Exemptions: • Executive Exemption. Ø Paid on a salary basis at a rate of at least $455 per week. Ø Primary duty of managing the business, or managing a department or subdivision of the business. Ø Customarily and regularly direct the work of at least two or more other full-time employees. Ø Authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight.

FLSA Exemptions: • Executive Exemption. Ø Managerial tasks include: Ø Ø Ø Evaluating performance of officers under their supervision. Enforcing and imposing penalties for violations of rules, regulations, SOPs. Making recommendations as to hiring, promotion, discipline or termination. Coordinating and implementing training programs. Maintaining payroll and personnel records. Handling community complaints, including decisions whether to refer them to internal affairs for further investigation. Preparing budgets and controlling expenditures. Ensuring operational readiness through supervision and inspection of personnel, equipment and quarters. Deciding how and where to allocate personnel. Making the distribution of equipment. Maintaining inventory of property and supplies. Directing operations at a crime, fire or accident scene, including deciding whether additional personnel or equipment are needed.

Top 10 HR Mistakes Part 5 – Failure to Properly Document Disciplinary and Performance Issues

Appropriate Discipline Three overriding factors should be considered when issuing discipline: Prior Notice. • Fair Investigation. • Consistent Application. •

Documentation is Essential Why Document? Litigation Avoidance / Defense Tools • Establish a good paper trail to validate the employer’s actions. • This will convince the jury that the employer took the action for the legitimate business reason set forth on paper.

Documentation is Essential Why Document? Litigation Avoidance / Defense Tools • Juries are skeptical of employers to begin with, so they favor written word over spoken word. • Documents help stimulate faded memories. Ø Lawsuits are not always filed immediately after the alleged wrongful employer conduct. Ø May be two, three or four years before a case goes to trial.

Performance Improvement / Disciplinary Process Documenting Job Performance • The communication of an employer’s expectations requires regular job performance evaluations. • Justify Employment Decisions - if used effectively, performance evaluations supply employers with documentation of legitimate justification of employment related decisions.

Performance Improvement / Disciplinary Process Documenting Job Performance • If used ineffectively, they create perceptions of unfairness among employees and undermine an employer’s defenses to employee litigation. Ø Frequently, managers give poor performers satisfactory evaluations to avoid the unpleasantness of telling the employee bad news. Ø Consistently satisfactory or better overall job performance evaluations effectively defeat an employer’s defense based upon the employee’s poor job performance.

Performance Improvement / Disciplinary Process Documenting Job Performance • Characteristics of good job performance evaluations. Ø Ø Evaluators use personal observations as the basis of their evaluations. The evaluations should include specific factual descriptions of how the employee does his or her job. • Ø Specific examples help keep control and recall important information should you need to later testify or answer questions. Keep things job related!

Performance Improvement / Disciplinary Process Documenting Job Performance Ø Evaluations should reflect job performance on a comparative basis. • Separate the satisfactory from the unsatisfactory. • Show relative differences in performance even among satisfactory performers. • You may have to choose among satisfactory employees for layoff.

Performance Improvement / Disciplinary Process Documenting Unsatisfactory Behavior • Investigate the facts and document them. • If the investigation involves an accusation of a serious policy violation that could cause the employee’s immediate dismissal, suspend him or her pending the investigator’s results.

Performance Improvement / Disciplinary Process Documenting Unsatisfactory Behavior • Before concluding the investigation, confront the employee with the allegations against him or her. Ø Give the employee an opportunity to explain his or her position. Ø Make a record of the explanation.

Performance Improvement / Disciplinary Process Documenting Unsatisfactory Behavior • If the employee’s explanation identifies new information or additional people who have knowledge of the facts under investigation, then thoroughly pursue the investigation of such information or interview the additional witnesses.

Performance Improvement / Disciplinary Process Documenting Unsatisfactory Behavior Ø Document any additional steps in the investigation. Ø Prepare a written summary of the investigation that states the findings based upon the investigator’s results.

Performance Improvement / Disciplinary Process Documenting Unsatisfactory Behavior • If the investigation concludes that the employee violated one or more policies or job expectations, then the summary should identify the specific policies or expectations violated. • Policies often change and references to policy numbers or names may not help in litigation if no one remembers the policy’s details.

Performance Improvement / Disciplinary Process Documenting Unsatisfactory Behavior • Depending upon the severity of the issue, the manager must decide the appropriate action to take against the employee. If there is any doubt, the manager should consult with HR.

Performance Improvement / Disciplinary Process Documenting Unsatisfactory Behavior • Before imposing any discipline more severe than an oral warning, the employer should have an internal review process to assure consistency. Ø Review the facts revealed during the investigation with the HR manager. Ø Confirm the policy violation.

Performance Improvement / Disciplinary Process Documenting Unsatisfactory Behavior Ø Assess the consistency of the discipline to be imposed with past practices within the manager’s department as well as in other departments.

More Thoughts

More Thoughts Question 1 On Friday Susie did not report for work because her car wouldn’t start. On Monday, her supervisor asked for a receipt showing that she had the car repaired, but Susie did not have one. Which documentation of the incident is the best one? a) b) “Susie lied. ” “On Monday, October 1, 2007, Susie said she couldn’t come to work last Friday because her car broke down. I asked her for receipts for repairs. She couldn’t provide them. I asked her the name of the garage where the repairs were performed and she said she couldn’t remember. ”

More Thoughts Answer: “On Monday, October 1, 2007, Susie said she couldn’t come to work last Friday because her car broke down. I asked her for receipts for repairs. She couldn’t provide them. I asked her the name of the garage where the repairs were performed and she said she couldn’t remember. ”

More Thoughts Question 2 True or false: You’ve just had a conversation with Pat about her recent absences. Under your progressive discipline policy, this is a first verbal warning. If Pat does not improve her attendance, the next step would be a written warning. Verbal warnings do not require documentation. False.

More Thoughts Answer: False. Not documenting verbal warnings is a dangerous practice. If an employee asserts that discipline was arbitrary and unfair, proper documentation can show that it was appropriate and carried out according to your organization’s established rules of discipline. If it’s not documented, it didn’t happen!

Top 10 HR Mistakes Part 6 - Failure to Conduct Proper Internal Investigations

When Will an Investigation be Required? • Complaints/rumors of harassment or discrimination. • Alleged misconduct (theft, threats against others, violations of safety or other workplace rules, etc. ) • Charge of discrimination or some other formal complaint received from federal or state agency. • Lawsuit.

What if the Complaining Employee Requests Confidentiality? • You must report complaints to HR. • You cannot promise complete confidentiality. • Document the employee’s request for confidentiality & that no action be taken.

Beginning the Investigation Be Prompt • Take prompt action when inappropriate workplace conduct is reported or found. Ø • Begin within 48 hours of receiving a complaint when possible. Legal liability can be limited if the investigation is quick, thorough & fair. Ø Prompt action sends a clear message that inappropriate conduct and policy violations will not be tolerated.

Beginning the Investigation Initial Meeting with the Complaining Employee • Three goals 1) 2) 3) Instill confidence. Identify all issues. Take the complaint seriously. Ask for – but don’t require – a written statement.

Beginning the Investigation Employment Actions Necessary During the Investigation • Do not take any interim actions (to protect the safety of the complainant, other witnesses, or the company’s property) without consulting HR. • Any changes in an employee’s working conditions may appear retaliatory and must be made only in consultation with HR!

Conducting the Investigation Gather Only the Facts About What Happened • Purpose of investigation is to uncover facts, not to prove your theory of what happened. • Have a clear scope for your investigation & stay within it.

Conducting the Investigation Gather Only the Facts About What Happened • Evaluate the facts: Ø Be relentless! Ø Vague facts? Check them out further. Ø Contradictory facts? See if you can resolve the contradiction; if not, label the facts as contradictory.

Conducting the Investigation Gather Only the Facts About What Happened Ø Rumors, not facts? • Ø Substantiate them or reconsider their use. Facts you wish you had? • Search for them further!

Conducting the Investigation Gather All Relevant Records • Keep organized as to date & source. • Keep confidential; share only with those who have the need to know. • Keep secure.

Conducting the Investigation Interview All Relevant Persons • Start with employee who complained, the accused employee, if any, and other witnesses. • Ask if there are others that could help with the investigation. • Arrange to interview witnesses immediately. • Ask for leads!

The Interviewing Do’s & Don’ts • • Who gets interviewed first? 1. Complainant. 2. Accused. 3. All other witnesses. Observe body language but don’t “overinterpret. ”

The Interviewing Do’s & Don’ts • For each person you interview: 1. 2. 3. 4. 5. 6. Review the scope of the investigation. Ask for leads – find out who else has information. Provide an opportunity to give input. Take notes. Find out what documents you need. Identify holes in stories – try to fill them.

The Interviewing Do’s & Don’ts Check the accuracy of facts. 8. Obtain admissions of confessions. 9. Get a “sign-off. ” 10. Conduct the interview in a private location. 7.

The Interview Taking Notes • Explain to the witness that you will be taking notes. • Note-taking may make some witnesses uncomfortable. Ø Do what you can to ease any discomfort. • If you decide to record interviews, make sure to first record the witness’ consent to be recorded. • Assume that all documents are “discoverable” if a lawsuit is filed.

The Interview Taking Notes • Document communications with all employees. • Document the names of other witnesses. • Document facts, not conclusions. • Accurate, legible, free from spelling and grammatical errors. • Include date, time, place & names of people present.

Concluding Your Investigation Reach a Conclusion Based On the Facts & Records • Review the documentation. • Determine the credibility of witnesses. • Weigh the facts. • Arrive at a fair, objective & defensible conclusion.

Concluding Your Investigation Reach a Conclusion Based On the Facts & Records • Address the hard-to-resolve claim. • Bring closure. • Communicate with the complaining employee, including in an “unsolvable complaint. ”

Reach a Conclusion & Write Your Report No Job is Complete Until the Paperwork is Done! • Prepare a preliminary investigate report & obtain the approval of HR. • Model report format. Ø Ø Statement of factual findings. Statement of conclusion(s) reached. Summary. Appendices (Relevant documents/data).

Reach a Conclusion & Write Your Report Get Approval From HR • Your investigative report may be “discoverable” in litigation. • You must have HR approval on the final report. • Do not include any discussions with attorneys.

Now That the Investigation is Over Potential Consequences of the Investigation 1. No adverse employment action taken: No infraction, discrimination or harassment, or inappropriate behavior. 2. Warning issued, along with clear message about expected workplace behavior.

Now That the Investigation is Over Potential Consequences of the Investigation 3. Some adverse employment action taken – suspension, demotion, formal reprimand. 4. Accused employee is terminated. Obtain approval from HR or whoever is authorized to take action!

Keep Thinking

Keep Thinking Question 1 True or false: If an employee acts in good faith to report inappropriate conduct and an investigation reveals that no inappropriate conduct occurred, the employee may be disciplined for making a false report. False.

Keep Thinking Answer: False. So long as the employee acted in good faith when he or she made the report, an employer may not retaliate against the complaining employee. This is true even if the employer ultimately determines that inappropriate conduct did not take place.

Keep Thinking Question 2 You have just completed an investigation of a physical altercation in the workplace involving two employees. Besides the two employees involved in the altercation, you have interviewed three other witnesses. These three witnesses not involved in the altercation have asked you what actions have been taken against the two employees involved in the altercation. You should: a) b) c) Say nothing. Tell them what disciplinary actions, if any, have been taken against the employee involved in the altercation. Inform them that the results are confidential, and thank them for their cooperation in the investigation.

Keep Thinking Answer: c) There is no need to consult with witnesses, other than the victim and the accused, after the investigation is completed. If witnesses ask about the results of your investigation, inform them that the results are confidential, and thank them for their cooperation in the investigation.

Top 10 HR Mistakes Part 7 – Mishandling Leave Issues

Overview Purposes ADA – Prohibits discrimination against applicants and employees who are “qualified individuals with a disability. ” • Requires reasonable accommodation. FMLA – Establishes minimum leave standards for employees. Workers’ Compensation – State laws that provide for compensation and rehabilitation of employees injured on the job, while minimizing employer liability.

Overview Employee Eligibility ADA – Must be a qualified individual with a disability – one who, with or without a reasonable accommodation, can perform the essential functions of the job held or sought. FMLA – Must have worked for the employer for at least 12 months, worked 1, 250 hours during the 12 month period prior to leave and who works at a site where there are 50 or more employees within a 75 -mile radius. Workers’ Compensation – Must be an employee who has an injury arising out of and in the course of employment.

FMLA - Basics • An employee is entitled to leave under the FMLA for more one or more of the following reasons: Ø The birth of a child, and to care for the new born child. Ø The placement of a child with the employee through adoption or foster care, or to care for the child. Ø To care for the employee’s spouse, son, daughter, or parent with a serious health condition. Ø Because a serious health condition makes the employee unable to perform one or more of the essential functions of his or her job.

FMLA - Basics • A serious health condition is an illness, injury or physical or mental condition that involves either: Ø Inpatient care, or • Ø An overnight stay at a hospital, hospice, or residential treatment facility. Continuing treatment by a healthcare provider.

FMLA - Basics Serious Health Condition – Continuing Treatment • Continuing treatment by a healthcare provider in any of these situations: Ø Ø Ø Three full calendar days or more of incapacity. Pregnancy/prenatal care. Chronic condition (e. g. , asthma, diabetes).

FMLA - Basics Serious Health Condition – Continuing Treatment Ø Ø Long-term/terminal condition (e. g. , Alzheimer's, severe stroke, terminal stages of disease). Multiple treatments – non-chronic conditions (e. g. , chemotherapy, physical therapy, kidney dialysis).

FMLA - Basics • Remember to think FMLA when the following occurs to an employee/covered family member: Ø Ø Ø Hospitalization. Absence of three days or longer. Repeated provider treatments. Employee is pregnant. Chronic serious illness. Multiple treatment therapy.

FMLA - Basics • Military Family Leave Ø Qualifying Exigency Leave. Ø Military Care Giver Leave.

FMLA - Basics Military Family Leave: Qualify Exigency Types: • • Short-term deployment activities. Military events/related activities. Childcare/school activities. Financial/legal arrangements. Military counseling. Rest and recuperation. Post-deployment activities. Additional activities (as agreed upon by employer and employee).

FMLA - Basics Special Rule for Service Member Families • 26 weeks to care for service member with serious injury or illness suffered in line of duty. • 12 weeks of leave for service member families in the event of qualifying exigency.

FMLA - Basics Intermittent Leave • May be taken for a serious health condition. Ø • But not for birth or adoption. Ø • (e. g. , several days per month, for six months, for chemo -therapy). Unless employer agrees. Service member families may take intermittent leave for qualifying exigency or to care for seriously ill or injured service member.

FMLA - Basics Job Restoration Upon return from FMLA Leave, employee must be restored to same (or equivalent) job. Virtually identical: Pay and benefits. • Duties and responsibilities. • Other terms and conditions of employment. •

FMLA - Basics Maintaining Health Benefits • Health benefits must be offered to employees on leave at same level and conditions as would have been offered if employee remained continuously employed. • Employee must continue to pay any employee share of health plan premiums.

ADA - Basics • Disability: Ø A physical or mental impairment that substantially limits one or more of the individual’s major life activities. Ø A record of such an impairment. Ø Regarded as having such an impairment.

ADA - Basics • Who is qualified? Ø An individual with a disability is considered qualified if the individual, with or without a reasonable accommodation, can perform the essential functions of the job held or desired.

ADA - Basics • Accommodation: Ø Reasonable accommodations to the known physical or mental limitations of a qualified employee or applicant with a disability must be made unless to do so would cause undue hardship on the operation of the employer’s business. Ø Contact HR if you believe the applicant or employee needs or has requested a reasonable accommodation.

Interplay Between FMLA, ADA and Workers’ Compensation • Is an FMLA serious health condition the same as an ADA disability? Ø No. Ø Some FMLA serious health conditions may be ADA disabilities, for example, most cancers and serious strokes.

Interplay Between FMLA, ADA and Workers’ Compensation Ø Other serious health conditions may not be ADA disabilities, for example, pregnancy or a routine broken leg or hernia. • This is because the condition is not an impairment (e. g. , pregnancy) or because the impairment is not substantially limiting (e. g. , routine broken leg or hernia).

Interplay Between FMLA, ADA and Workers’ Compensation • Does the FMLA’s limit of 12 work weeks of leave in a 12 month period mean that the ADA also limits employees to 12 weeks of leave per year? Ø No. Ø The FMLA does not mean that more than 12 weeks of unpaid leave automatically imposes an undue hardship for purposes of the ADA.

Interplay Between FMLA, ADA and Workers’ Compensation Ø An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship on the operation of the employer’s business.

Interplay Between FMLA, ADA and Workers’ Compensation • How do the ADA and the FMLA requirements compare regarding intermittent or occasional leave? Ø Under the ADA, a qualified individual with a disability may work part-time in his/her current position, or occasionally take time off, as a reasonable accommodation if it would not impose an undue hardship on the employer.

Interplay Between FMLA, ADA and Workers’ Compensation Ø Under the FMLA, an eligible employee may take leave intermittently or on a part-time basis for a serious health condition when medically necessary for treatment or recovery, until he or she has used up the equivalent of 12 work weeks in a 12 month period. Ø When such leave is foreseeable based on planned medical treatment, an employer may require the employee to temporarily transfer (for the duration of the FMLA leave) to an available alternative position for which the employee is qualified and which better suits his/her reduced hours.

Interplay Between FMLA, ADA and Workers’ Compensation • What are employee’s reinstatement rights under the ADA and FMLA? Ø Under the ADA, the employee is entitled to return to the same job unless the employer demonstrates that holding the job open would impose an undue hardship.

Interplay Between FMLA, ADA and Workers’ Compensation Ø Under the FMLA, an employee is entitled to return to the same position or to an equivalent position. • If, after the employee has used all of his or her FMLA leave time, he or she is still unable to perform an essential function of the same or equivalent job because of a physical or mental condition, the FMLA does not require the employer to reinstate the employee into another job.

Interplay Between FMLA, ADA and Workers’ Compensation • What are the ADA and FMLA requirements of continued health insurance during medical leave? Ø Under the ADA, an employer must continue health insurance coverage for an employee taking leave or working part-time only if the employer also provides coverage for other employees in the same leave or parttime status. • The coverage must be on the same terms normally provided to those in the same leave or part-time status.

Interplay Between FMLA, ADA and Workers’ Compensation Ø Under the FMLA, an employer always must maintain the employee’s existing level of coverage (including family and dependent coverage) under a group health plan during the period of FMLA leave, provided that the employee pays his or her share of the premiums.

Interplay Between FMLA, ADA and Workers’ Compensation • May an employer refuse to hire a person with a disability simply because it assumes, correctly or incorrectly, that he or she poses some increased risk of occupational injury and increased workers’ compensation costs? Ø No, unless the employer can show that the employment of the person in the position poses a “direct threat. ”

Interplay Between FMLA, ADA and Workers’ Compensation Ø “Direct threat” means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation. Ø The determination that a direct threat exists must be the result of a fact-based individualized inquiry that takes into account the specific circumstances of the individual with a disability. • The duration of the risk. • The nature and severity of the potential harm. • The likelihood that the potential will occur. • The imminence of the potential harm.

Interplay Between FMLA, ADA and Workers’ Compensation • May an employer discharge an employee who is temporarily unable to work because of a disability-related occupational injury? Ø No. Ø An employer may not discharge an employee who is temporarily unable to work because of a disabilityrelated occupational injury where it would not impose an undue hardship to provide leave as a reasonable accommodation.

Interplay Between FMLA, ADA and Workers’ Compensation • Does the ADA require an employer to create a light-duty position for an employee when he or she is injured on the job? Ø No.

Top 10 HR Mistakes Part 8 – Laying Off Employees Instead of Terminating Their Employment

Layoff Means Lawsuit During the last twenty (20) years, wrongful termination lawsuits have risen 260%. The median employer payout to settle an employee lawsuit in 2009 was $326, 640. 00. Not many employers, small or large, are able to easily swallow this pill.

Layoff Means Lawsuit Terminating employees is one of the most unpleasant aspects of owning a business or performing your job as a Manager. However, sometimes it is absolutely necessary in order to continue the business of the employer. Can’t I just call it a layoff? No!!

Layoff Means Lawsuit It is a bad idea to hide behind the word “layoff” if you are actually terminating an employee for poor performance or misconduct. The trouble is that the term “layoff” has a specific meaning. Historically, a layoff was a temporary suspension from work. Workers might be laid off during the slow season of a cyclical business and return when business picks up again. Now, however, a layoff usually refers to a permanent termination of employment unrelated to performance or discipline. A company might decide to layoff employees when eliminating a product line, closing a factory, reducing the size of a department or trimming staff to save money.

Layoff Means Lawsuit The hallmark distinction between a layoff and a firing is that the discharged employee’s position is refilled, whereas a laid off employee’s position is eliminated and not refilled. At their heart, firings are triggered by an employee’s poor job performance or misconduct rather than the company’s economic health. As a result, another employee is hired to replace the vacancy created by the termination of the employee who is discharged.

Layoff Means Lawsuit The intention of calling a termination a layoff is usually to avoid having to confront the employee with the actual reasons for his or her termination. In fact, some employers believe that calling a discharge a layoff can help avoid liability for a risky termination where the particular employee is in a protected classification (for example, pregnant or disabled) or if they have failed to document the performance problem or misconduct as it occurred. By calling a termination a “layoff” when it is not, you essentially lose the advantage of being able to show in writing the legitimate reasons for your decision and use them as a defense.

Layoff Means Lawsuit Don’t set a trap for yourself by calling a disciplinary or poor performance termination a “layoff”, especially if you plan to turn around and hire someone else to fill the position. If you do, the former employee could make the case that the layoff was, in fact, just a pretext for the real reason, alleged discrimination or retaliation. Because you did not document the real reason as performance related or disciplinary, trying to establish those reasons as the legitimate, non-discriminatory reasons after calling it a layoff makes you look like a liar.

Layoff Means Lawsuit There is no need to hide from a discharge. Most employees are employed “at-will”. At-will employees can be terminated at any time, for any reason, as long as it is not an illegal reason. The common notion that an employer must have “good cause” for terminating an employee’s employment is, most of the time, false.

Layoff Means Lawsuit However, there are ways an employee can challenge the “atwill” relationship. Therefore, it is generally a better practice to terminate an employee as opposed to laying off the employee if there is a demonstrable legitimate, non-discriminatory business reason for making the termination decision. In wrongful termination cases, information such as performance evaluations and/or disciplinary notices must be maintained in an effort to show that the termination of employment was non-discriminatory. If the employer has documented the performance or disciplinary history, and has treated employees who have similar performance or have engaged in similar misconduct consistently the same, then it actually benefits the employer to state the reason for termination.

Layoff Means Lawsuit There is no way to inform an employee that he or she is being terminated without the risk of inflicting some emotional pain or making you, as the manager, feel uncomfortable. In our experience, however, it is actually easier to provide the reason for termination during the termination meeting. Nearly every termination meeting leads to questions from the employee and the employee often disagrees with the employer’s decision. Providing a reason for termination allows employers to better control the termination meeting, maintain a one way conversation throughout it, and keep it as short and seamless as possible.

Top 10 HR Mistakes Part 9 – Failing to Make Reasonable Accommodations

Types of Reasonable Accommodations Job Restructuring Job restructuring includes modifications such as: Ø Reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability; and Ø Altering when and/or how a function, essential or marginal, is performed. An employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes.

Types of Reasonable Accommodations If, as a reasonable accommodation, an employer restructures an employee’s job to eliminate some marginal functions, may the employer require the employee to take on other marginal functions that she/he can perform? Ø Yes, an employer may switch the marginal functions of two (or more) employees in order to restructure a job as a reasonable accommodation.

Types of Reasonable Accommodations Example: A cleaning crew works in an office building. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. The marginal functions of a second crew member include cleaning the small kitchen in the employee’s lounge, which is something the first crew member can perform. The employer can switch the marginal functions performed by these two employees.

Types of Reasonable Accommodations Leave Ø Permitting the use of accrued paid leave, or unpaid leave, is a form of a reasonable accommodation when necessitated by an employee’s disability.

Types of Reasonable Accommodations An employee with a disability may need leave for a number of reasons related to the disability, including, but not limited to: Ø Obtaining medical treatment (e. g. , surgery, psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; or physical or occupational therapy; Ø Recuperating from an illness or an episodic manifestation of the disability; Ø Obtaining repairs on a wheelchair, accessible van, or prosthetic device; Ø Avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis); Ø Training a service animal (e. g. , a guide dog); or Ø Receiving training in the use of braille or to learn sign language.

Types of Reasonable Accommodations May an employer apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period? Ø No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “nofault” leave policy to provide the employee with the additional leave, unless it can show that: Ø (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or Ø (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of a reasonable accommodation.

Types of Reasonable Accommodations Can an employer penalize an employee for work missed during leave taken as a reasonable accommodation? Ø No. To do so would be retaliation for the employee's use of a reasonable accommodation to which she/he is entitled under the law. Ø Moreover, such punishment would make the leave an ineffective accommodation, thus making an employer liable for failing to provide a reasonable accommodation.

Types of Reasonable Accommodations Example: A salesperson took five months of leave as a reasonable accommodation. The company compares the sales records of all salespeople over a one-year period, and any employee whose sales fall more than 25% below the median sales performance of all employees is automatically terminated. The employer terminates the salesperson because she had fallen below the required performance standard. The company did not consider that the reason for her lower sales performance was her five-month leave of absence; nor did it assess her productivity during the period she did work (i. e. , pro-rate her productivity). Penalizing the salesperson is this manner constitutes retaliation and denial of a reasonable accommodation.

Types of Reasonable Accommodations Modified or Part-Time Schedule Must an employer allow an employee with a disability to work a modified or part-time schedule as a reasonable accommodation, absent undue hardship? Ø Yes. A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees.

Types of Reasonable Accommodations Example: An employee with HIV infection must take mediation on a strict schedule. The mediation causes extreme nausea about one hour after ingestion, and generally lasts about 45 minutes. The employee asks that he be allowed to take a daily 45 -minute break when the nausea occurs. The employer must grant this request absent undue hardship.

Types of Reasonable Accommodations Modified Workplace Policies Is it a reasonable accommodation to modify a workplace policy? Ø Yes. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual’s disability-related limitations, absent undue hardship. But, a reasonable accommodation only requires that the employer modify the policy for an employee who requires such action because of a disability; therefore, the employer may continue to apply the policy to all other employees.

Types of Reasonable Accommodations Example: An employer has a policy prohibiting employees from eating or drinking at their workstations. An employee with insulin-dependent diabetes explains to her employer that she may occasionally take too much insulin and, in order to avoid going into insulin shock, she must immediately eat a candy bar or drink fruit juice. The employee requests permission to keep such food at her workstation and to eat or drink when her insulin level necessitates. The employer must modify its policy to grant this request, absent undue hardship. Similarly, an employer might have to modify a policy to allow an employee with a disability to bring in a small refrigerator, or to use the employer’s refrigerator, to store mediation that must be taken during working hours.

Types of Reasonable Accommodations Reassignment The ADA specifically lists “reassignment to a vacant position” as a form of a reasonable accommodation. This type of a reasonable accommodation must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current positon, with or without a reasonable accommodation, unless the employer can show that reassignment to a vacant position would be an undue hardship.

Types of Reasonable Accommodations An employee must be “qualified” for the new position. An employee is “qualified” for a position if she/he: Ø (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and Ø (2) can perform the essential functions of the new position, with or without a reasonable accommodation. The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.

Types of Reasonable Accommodations Before considering reassignment as a reasonable accommodation, employer should first consider those accommodations that would enable an employee to remain in his/her current position. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: Ø (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or Ø (2) all other reasonable accommodations would impose an undue hardship. However, if both the employer and the employee voluntarily agree that transfer is preferable to remaining in the current position with some form of reasonable accommodation, then the employer may transfer the employee.

UNDUE HARDSHIP ISSUES An employer does not have to provide a reasonable accommodation that would cause an “undue hardship” to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.

UNDUE HARDSHIP ISSUES A determination of undue hardship should be based on several factors, including: The nature and cost of the accommodation needed; The overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); The type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and The impact of the accommodation on the operation of the facility.

UNDUE HARDSHIP ISSUES Undue hardship cannot be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees. Also, if an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation.

UNDUE HARDSHIP ISSUES Example: Ø An employee with breast cancer is undergoing chemotherapy. As a consequence of the treatment, the employee is subject to fatigue and finds it difficult to keep up with her regular workload. So that she may focus her reduced energy on performing her essential functions, the employer transfers three of her marginal functions to another employee for the duration of the chemotherapy treatments. The second employee is unhappy at being given extra assignments, but the employer determines that the employee can absorb the new assignments with little effect on his ability to perform his own assignments in a timely manner. Since the employer cannot show significant disruption to its operation, there is no undue hardship.

“CASE STUDY” PREGNANCY DISCRIMINATION

Light Duty’s Heavy Burden; Young v. UPS In 2015, the U. S. Supreme Court issued a much anticipated decision in Young v. UPS. The decision was anticipated as hopefully providing helpful clarification on whether employers must provide light-duty and other workplace accommodations to pregnant employees in the same manner that they provide accommodations to employees who are injured on the job.

Light Duty’s Heavy Burden; Young v. UPS The Supreme Court held that a pregnant employee can establish a prima facie case of disparate treatment (on the basis of pregnancy) by showing that: She belongs to a protected class (i. e. , pregnant); She sought an accommodation from her employer; The employer failed to accommodate her; and The employer accommodated others “similar in their ability or inability to work”.

Light Duty’s Heavy Burden; Young v. UPS If a Plaintiff can establish these elements, the employer has the burden of production to provide a legitimate, non-discriminatory reason for denying the accommodation; The Supreme Court, however, noted that this reason must be more than an employer’s claim that it is more expensive or less convenient to add pregnant woman to the categories of those whom the employer accommodates; and If the employer provides a legitimate, non-discriminatory reason, the employee must then establish that the employer’s reason is prextextual.

Light Duty’s Heavy Burden; Young v. UPS Ø The Supreme Court, in its ruling, explained that a pregnant employee can establish a prima facie case of pregnancy discrimination by alleging that the employer denied a request for an accommodation and the employer accommodated others (similar in their ability or inability to work). Ø The Court also explained that a pregnancy discrimination plaintiff could reach a jury by providing significant evidence that the employer’s facially neutral policies impose a “significant burden” on pregnant employees and that the employers legitimate, non-discriminatory reasons are not “sufficiently strong” to justify the burden. Ø According to the Court, this burden may be met simply by showing that the employer accommodated a large percentage of nonpregnant employees while failing to accommodate a large percentage of pregnant employees.

Light Duty’s Heavy Burden; Young v. UPS Next step for employers: Employers should take a careful look at their accommodation policies and practices, and to whom they extend those policies and practices. Employers that have policies that provide accommodations or other types of benefits to categories of employee, which does not include pregnancy as one of them, need to ensure that they have legitimate, nondiscriminatory reasons for doing so. The Court left open the question of what constitutes such a legitimate non-discriminatory reason, but held that cost alone wouldn’t normally not meet the standard. The Court also stated that if categories of employees to whom accommodations or other benefits are offered constitutes a substantial number of employees, but still excludes pregnant employees, the risk of denying such benefits to pregnant employees will be high.

Light Duty’s Heavy Burden; Young v. UPS Next step for employers: Although the Supreme Court rejected the notion that an employer is per se required to provide light-duty to a pregnant employee simply because it provides light-duty to one set of employees injured on-thejob, it is unclear at what point the refusal to provide a similar accommodation to a pregnant employee constitutes a pretext for discrimination. Suffice it to say that accommodating a large number of employees injured on-the-job, while refusing to provide light-duty to pregnant women, will make it difficult of the employer to legally justify the burden placed on pregnant employees.

Top 10 HR Mistakes Part 10 – Misclassifying Employees as Independent Contractors

IRS Definition of Employee • The IRS has identified 20 factors as an aid to determining whether an individual is an employee or an independent contractor.

IRS Definition of Employee • The IRS has attempted to simplify and refine the “employee” test, organizing the 20 factors into three main groups: Ø Ø Ø Behavioral control. Financial control. Type of relationship of the parties.

IRS Definition of Employee Behavioral Control • Facts that show whether the business has a right to direct and control how the worker does the task for which the worker is hired include the type and degree of: • Instructions the business gives the worker. Ø When and where to do the work.

IRS Definition of Employee Behavioral Control Ø What tools or equipment to use. Ø What workers to hire or assist with the work. Ø Where to purchase the supplies and services. Ø What work must be performed by a specified individual. Ø What order or sequence to follow.

IRS Definition of Employee Behavioral Control • Training the business gives the worker. Ø Periodic and on-going training provided by a business about procedures to be followed is strong evidence of an employer-employee relationship. Ø Training should be distinguished from orientation about the business’ policies and product lines.

IRS Definition of Employee Financial Control • Facts that show whether the business has a right to control the business aspects of the worker’s job include: Ø The extent to which the worker has reimbursed expenses. Ø The extent of the worker’s investment. Ø The extent to which the worker makes services available to the relevant market. Ø How the business pays the worker. Ø The extent to which the worker can realize a profit or loss.

IRS Definition of Employee Type of Relationship • Facts that show the parties type of relationship include: Ø Incorporation. Ø Written documents describing the relationship the parties intended to create. Ø Whether the business provides the worker with employee benefits, such as insurance, a pension plan, vacation pay, or sick pay. Ø The permanency of the relationship. Ø The extent to which services performed by the worker are a key aspect of the regular business of the company.

Employment Relationship Fair Labor Standards Act (“FLSA”) • The FLSA applies only to employees – not to independent contractors. Ø Economic Realities test.

Employment Relationship FLSA • What makes an independent contractor “independent” for purposes of the FLSA? Ø The extent to which the services the individual provides are an integral part of the company’s business. Ø How permanent the relationship has been. Ø The amount the individual has invested in facilities and equipment. Ø The individual’s opportunities for profit or loss.

Employment Relationship FLSA Ø The degree of independent business organization and operation by the individual. Ø The nature and degree of control by the company. Ø The degree of independent initiative, judgment, or foresight exercised by the individual who performs the services. We believe the information contained herein is accurate as of August 5, 2018. However, requirements for employers are constantly changing. The information contained in this document is not a substitute for legal counsel on a case-by-case basis. © 2009 CCH/2017 Hesse Martone, P. C. All Rights Reserved. Content is provided to the user for the personal use of the user and not for re-sale. Content may be used only for the purpose of the user’s internal affairs, the conduct of its business, or providing professional services to user’s clients.