Ch 21 - EmploymentRelationshipsCh 21 - EmploymentRelationships

• I was working for a subcontracted company inside of Bridgestone when my employer terminated me under the claim of insubordination, but I have never been insubordinate or written up for anything before. I would like to sue for wrongfully termination seeing as they have no grounds for their claim of insubordination. Being terminated for this causes me to be unable to ever work for any company inside of Bridgestone in the future. I was not the only one this happened to.

2

3

Employment-at-WillEmployment-at-Will

• Tennessee -

4

WhistleblowingWhistleblowing

• Whistleblowing -

Penn State CasePenn State Case

• The lawsuit states he was the only assistant football coach who was not invited to interview for employment with the incoming new head football coach after longtime coach Joe Paterno was fired amid the Sandusky scandal.

5

Penn StatePenn State• According to the lawsuit, after testifying in court, he was

placed on administrative leave and later terminated in July 2012.

• Damages: So McQueary waits, his life stuck in its third year of limbo. Last summer Savannah State approached him about an assistant coaching job, but the administration ultimately decided against it. He seems resigned to the fact that he probably won't coach again.

• McQueary also claims he was the only former employee who was not reimbursed for legal fees, and that he did not receive his severance payments on time.

6

TN Whistleblower 2014 changeTN Whistleblower 2014 change

Whistleblower Claims:

Under the new law, to maintain a whistleblower action, the employee must have reported the alleged illegal activities to an individual or entity other than the employer or corporate affiliate (i.e., outside the company), and the report of illegal activities must be the sole reason for the termination.

7

8

Wage-Hour LawsWage-Hour Laws

Fair Labor Standards Act (FLSA) –

•ER – interstate and $500k gross sales or federal, state, local gov’t.

9

Purpose of FLSAPurpose of FLSAPurpose of FLSAPurpose of FLSA

• 1. Establishes minimum wage & overtime standards

• 2. Establishes overtime threshold (40 hr. per week*) for non exempt employees

• 3. Record-keeping requirements

• President proposing to increase minimum wage

• President signed an executive order to raise min wage for minimum wage for Federal contractors and subcontractors to 10.10

10

• http://www.dol.gov/whd/minwage/america.htm

11

Minimum Wage Fairness ActMinimum Wage Fairness ActThe Minimum Wage Fairness Act would amend the Fair Labor Standards Act of 1938 (FLSA) to increase the federal minimum wage for employees to: (1) $8.20 an hour beginning on the first day of the sixth month after the enactment of this Act, (2) $9.15 an hour beginning one year after the date of such initial increase, (3) $10.10 an hour beginning two years after such date,

12

13

IC v. EEIC v. EE

IC or EE- why

What do you look at?

14

Issue regarding WagesIssue regarding Wages

• 1. Hours – how are they calculated.

15

Youth Minimum WagesYouth Minimum Wages

• The youth minimum wage allows employers to pay employees under 20 years of age for 90 days

• Wage must be above $4.25 an hour

16

17

OvertimeOvertime

Exempt –

Non-Exempt –

TRAP #4 OVERTIME PAYTRAP #4 OVERTIME PAY

True or False:

If you are on salary, you do not get paid overtime

What about if get calls or text on personal time

18

• Employees must earn at least $455 a week to be exempt. While all hourly employees are entitled to overtime, salaried workers may also qualify if they don't fall under any of the exemptions.

19

• Salary Employees –

• 1. Pay more than $455 per week AND

• 2. Primary Duty Test

Exempt PositionsExempt Positions

Executive ExemptExecutive Exempt

• 1. Pay not less than $455 per week

• 2. Primary duty management; AND

• 3. Hire/Fire 2 or more full time employees

• 750 assistant store managers of Big Lots suing for overtime.

• They say managerial functions — such as assigning tasks to employees — took up 10% to 15% of time, but they couldn't hire, fire or discipline workers.

• Typically worked about 60 hours a week and earned $43,000 a year.

22

How to calculate overtime for Big LotsHow to calculate overtime for Big Lots

• 1. Calculate employee’s equivalent hourly rate. Divide the weekly salary amount by the expected number of work hours to find the regular hourly rate. For example, if the employee is expected to work 40 hours each week and is paid $43000 per year or $826.92 per week, the hourly rate is $20.67 per hour.

• 2. For example, a regular rate of $20.67 times 1.5 equals $31.00 per hour. If the employee worked 60 hours, the 20 hours in excess of 40 are paid at $31.00 per hour, for total overtime pay of $620 per week.

23

Working on Personal Time/Required to come in early

to prepare

24

• Working on personal time – Paid???

• A Chicago Police Department sergeant says he received lots of e-mails, text messages and calls every weeknight.

• While dining with his family, mowing the lawn or watching his son play soccer, Allen often had to step away to coordinate search warrants and compile reports on seized assets, among other tasks.

25

AmazonAmazon

• Whenever he clocked out after his shift at an Amazon warehouse, Jesse Busk had to pass through the security checkpoint.

• What bothered Jesse was the time it required after an exhausting day -- up to 25 minutes, all of it unpaid.

• Should they be paid?

26

VerizonVerizon

• Customer service representative says she had to be at the call center 10 to 15 minutes before her shift officially started to log into their computers and open databases so they were ready to take calls.

• Should they be paid?

27

UNAUTHORIZED WORK

• Standard = whether the employer knows or has reason to believe

FLSA – Goodwill Store - DisabilityFLSA – Goodwill Store - Disability

• The FLSA allows employers upon being certified, to pay disabled workers wages less than the federal minimum wage when their disabilities impair their productive capacities for work performance.

29

MANDATORY RECORD KEEPING

•Must keep certain records for nonexempt

•No certain form – JUST DO IT

30

31

• U.S. Department of Labor enforces FLSA

• 2 years

FLSA ViolationsFLSA Violations

Comp TimeComp Time

Under certain prescribed conditions, employees of State or local government agencies, law enforcement, fire protection, and emergency response personnel and employees engaged in seasonal activities may accrue comp time

32

33

Worker Health and SafetyWorker Health and Safety

• The Occupational Safety and Health Act

• 8 or more employees –• interstate commerce

20 - 34

Administration & Enforcement of OSH ActAdministration & Enforcement of OSH Act

1. OSHA investigates, issues citations and penalties

2. Occupational Safety and Health Review Commission (OSHRC) - agency to hear claims

20 - 35

OSHAOSHA

• Section 5(a)of the OSHA : Shall…..

20 - 36

Employee RightsEmployee Rights

• Refusing to work

• Employees are exposed to a dangerous condition posing imminent risk of serious injury or death AND

• There is insufficient time, due to the nature of the hazard, to resort to report it to OSHA.

Whirlpool Corp v. MarshallWhirlpool Corp v. Marshall

• Facts: 2 employees refused to comply with supervisor’s order they perform maintenance work on mesh screens located 20 ft above the plant floor. 12 days before, employee had died from the screens.

20 - 37

TENNESSEE OSHATENNESSEE OSHA

• The Tennessee Occupational Safety and Health

• Tennessee OSHA also enforces the Tennessee Hazardous Chemical Right-To-Know Law

20 - 38

WORKPLACE VIOLENCEWORKPLACE VIOLENCE

• 1 MILLION people a year are victim of crimes while working.

• 500K employees lost 1.8 MILLION work days each year and $55 MILLION wages

20 - 39

• According to National Institute for Occupational Safety and Health,

17 workers are murdered on the job each week in the U.S.

• According to NIOSH, 33,000 workers are victims of non-fatal assaults on the job each week in the U.S

• On May 4, 1999, a North Carolina jury concluded that the employer failed to take adequate precautions for the safety of their employees and awarded $7.9 million to the families of two men killed at work by an estranged employee.

• Allman v. Dormer Tools, No. 97CVS1161 (N.C. Sup. Ct., May 4, 1999); Knox v. Union Butterfield, No. 07CVS2012 (N.C. Sup. Ct., May 4, 1999).

20 - 42

• The Oregon Court of Appeals upheld a jury award for $1.25 million for punitive damages and $275,000 for compensatory damages to an injured employee whose supervisor knew of a patient's violent history and refused to return to work, instructing the plaintiff to remain alone at the facility, after she had been assaulted by a patient.

• MacCrone v. Edwards Center, Inc., 980 P.2d 1156 (Or. Ct. App. 1999).

43

• Class Exercise

44

PART II

45

•The Family and Medical Leave Act

46

• Employers are violating FMLA with alarming frequency.

• Nearly one quarter of the employers questioned in a nationwide survey failed to instruct their supervisors about FMLA

• 1 in 5 organizations didn't inform workers of the law's existence.

47

FAMILY MEDICAL LEAVE ACTFAMILY MEDICAL LEAVE ACT

• Basics: Can take 12 weeks leave to care for the employee’s spouse, child, or parent who has a serious health condition

• How are weeks calculated

48

• The FMLA entitles eligible employees to take 12 weeks of leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

49

Family and Medical Leave ActFamily and Medical Leave Act

Employee :

An employee’s eligibility - minimum of 1250 hours during the 12-month period immediately prior to the leave request.

Employer: 50 or more employees (within 75 miles of each other)

PURPOSEPURPOSE

• 1. the birth of a child or adoption

• 2. spouse, child, or parent who has a serious health condition;

• 3. a serious health condition•

51

DefinitionDefinition

• “serious health condition”

• requires 3 consecutive days,

• and at least 2 in-person dr appt.

52

• Chronic- require periodic visits (at least twice a year) for treatment

• Examples:

53

ExamplesExamples

Chronic conditions require periodic visits (at least twice a year) for treatment, continue over an extended period of time and may cause episodic incapacity.

Asthma

Diabetes

Incapacity due to a condition which is not curable but which requires medical supervision.

Terminal illness

Multiple sclerosis

Absences to receive treatment for a chronic condition.

Kidney dialysis

Any period of incapacity due to pregnancy or for prenatal care.

Prenatal doctor visits

Absences due to morning sickness

Postpartum recovery54

Intermittent leave Intermittent leave

• FMLA leave may be taken in periods of whole weeks, single days, hours, and in some cases even less than an hour.

55

• Your wife has horrible morning sickness. You want to stay home to take care of her and go to all the doctor appt with her.

• FMLA?

56

Intermittent leave Intermittent leave

• Mary provides requests FMLA and gives the company a note from her child’s doctor certifying Mary needs to periodically take time off to care for her child, who has chronic asthma that is exacerbated by high pollen levels in the air.

• FMLA?

57

Conditions usually don’t qualify seriousConditions usually don’t qualify serious

• Common cold

• Voluntary or cosmetic procedures

• Routine dental and orthodontic work

• Non-migraine headaches

58

• Dave has the flu and stays out two days, then returns to work on the third day. Two days later he calls in sick again for another day.

• Dave’s is fired for violating the company’s strict attendance policy.

59

• Dave sues, claiming that because he was out for three days, he qualifies for FMLA leave and the company can’t fire him.

• Does Dave win?

60

• Mary’s father has cancer. Mary needs to come in late one hour every Monday and leave early every Friday at 3p to take her father for his chemotherapy.

• FMLA?

61

• Mary misses various days throughout the summer when the pollen count is high and her child consequently suffers from severe asthma attacks that require temporary care.

• FMLA?

62

Pressuring Employees to work during FMLAPressuring Employees to work during FMLA

• Evans, Books-A-Million's Payroll Manager, was to start her maternity leave beginning in September 2006. As her due date approached, the new payroll system for which Evans was responsible got delayed to Nov.

• Evans' supervisor, Meeks, told Evans that instead of the 10 weeks of maternity leave she had planned, they had decided she needed to work from home and gave her a laptop computer.

• The work began the day she got home from the hospital, and Evans worked nearly full-time during her leave, sometimes more than eight hours a day, even going to the office for some meetings. Evans received her regular salary.

•After her leave, Evans said Meeks was cold and hostile. Although Evans successfully completed the payroll project, a few months later, she was to be reassigned to a Risk Manager position.

64

FMLA/Sick Time/ STDFMLA/Sick Time/ STD• Deborah is also about to go on maternity leave. She has

one week of sick time remaining. Her company offers six weeks of short-term disability

• So, in Deborah's case, the first week would be sick time (full pay); the next six weeks would be disability (two-thirds pay); and the final five weeks would be FMLA leave (no pay).

65

CalculationCalculation

• For example, an employee who regularly works a five-day work week and eight hours a day, is entitled to 480 hours of leave: 12 weeks x 40 hrs/wk. Similarly, an employee who works a four-day week and eight hours each day is entitled to 384 hours of leave: 12 weeks x 32 hrs/wk.

66

• Fluctuating work week: If an employee’s schedule varies from week to week, the employer should average of the hours scheduled over the 12 months prior to the beginning of the leave

67

Work Comp/Intermittant LeaveWork Comp/Intermittant Leave

• Jane hurts her knee at work and misses 12 weeks of work and gets paid work comp benefits. She goes back to work and 3 months later she needs off work because her husband is seriously ill. Does she qualify for FMLA.

68

Returning JobReturning Job

• When an employee returns from FMLA leave, FMLA state that the returning employee has to go back to the same job or one of equal pay, responsibility, and benefits.

69

Returning to JobReturning to Job

• An employee must be reinstated immediately, after giving two days notice. Some employers force employees to wait for their position to open up or for the employer to shift schedules and job duties; this is not allowed under the law. 

70

• Jane after leave was placed into a new position: Quality Analyst II, which maintained the same pay, benefits, work hours and location

• She performed more clerical duties

• She reported to a former peer

• The new position did not require the same use of legal expertise

• Her opportunities for career advancement were diminished in the new role

71

Key EmployeesKey Employees

• Reinstatement for KEY Employees

• A "key employee" is a salaried, FMLA-eligible employee; highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite.

72

Returning JobReturning Job

• Mary, the company’s accounts payables manager, takes three months pregnancy leave. Jane, who replaced Mary, ends up doing the job better.

• Dave, her supervisor, is thinking, “Why did I put up with Mary for so long? She was incompetent and I didn’t even realize it.

• I think I’ll just put Mary in another role and hope she’s happy.”

73

Returning JobReturning Job

• Mary said: “When I left I had a position of authority and responsibility; now they’ve put me out to pasture in a low-level role. Sure, my pay is the same, but it’s not a ‘similar or equivalent’ position. This is

retaliation and I’m going to sue.”

Mary rights? 74

Returning JobReturning Job

• Bill was out on leave for six months for a major health crisis. When he returned to work he was still not 100%. He couldn’t lift things as well as before. He wasn’t as focused, and he tired easily. Fact is, he

• couldn’t perform his old job at the level he used to.

75

• Bill’s boss, Jackie, carefully documented Bill’s inability to handle the basic tasks of the job. She talked many times with Bill about his deficiencies and finally offered to transfer him to another position that was much less demanding. He refused to take it. So Jackie fired him. Bill then sued for violation of his FMLA rights.

76

• Frank Brown, a customer service analyst. In June 2008 he received negative reviews, which noted excessive Internet usage, lack of respect for personal boundaries in the workplace, and that he was argumentative with co-workers. After the review, his performance issues continued.

• On November 19, 2008, Brown asked for time off to attend his wife’s doctor’s appointment. His employer terminated his employment two days later on November 21 because of “unresolved, previously discussed performance issues.”

77

Violating Privacy through FMLAViolating Privacy through FMLA

• Ed had been Bruce’s manager for several years, and it pained him to learn that Bruce was HIV positive.

• While Bruce was out on leave, Ed mentioned Bruce’s condition to another senior colleague, whom he expected to be discreet about it.

• The day Bruce returned to work he stormed into Ed’s office and complained that “everyone in the company knows I’ve got AIDS.”

78

FMLAFMLA• Diane walks into your office and tells you she intends to

have non emergency knee surgery the next day, and that she’ll be out of work for 6 weeks.

• Your company policy requires two weeks’ advance notice for foreseeable leave. You have no one to replace her so you tell Diane that if she takes the leave on such short notice, you’ll have to fire her.

• FMLA protection?

79

FMLAFMLA

• John gets in a car accident and suffers a head injury. His wife calls you the same day to report John’s condition and tells you he’ll likely be out at least two weeks. She calls you continually during the following days to report on John’s progress.

• Protected under FMLA80

Do’s and Don’tsDo’s and Don’ts

• Don’t make any changes in compensation, duties or other conditions of employment for any reason related to FMLA leave. 

• Don’t reference FMLA leave in a performance review. • Don’t harass the employee about coming back to work • Don’t tell other employees about the employee’s medical

condition.

• Do tell the employee if time taken off will be counted toward the employee’s FMLA leave.

81

FMLAFMLA

Enforcement –

United States Dept of Labor Wage and Hour Division OR

file a lawsuit in court within 2 years

82

• How about cutting the 50-employee requirement for covered employers in half?

• So, if you have 25 or more employees working within 75 miles of one another, they would be eligible to take leave under the Family and Medical Leave Act.

• And that's just part of the Family and Medical Leave Enhancement Act of 2014, which Rep. Carolyn B. Maloney (D-NY) introduced in the U.S. House of Representatives in 2014.

83

Military FMLAMilitary FMLA

• FMLA was amended to provide two leave entitlements for military families.

• 1. spouse, son, daughter, or parent deploy

• 2. spouse, son, daughter, parent or next of kin of a covered service member may take up to 26 weeks medical treatment

84

• Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (Military Caregiver Leave)

85

New Military FMLANew Military FMLA

• March 8, 2013

• “Covered military member” includes National Guard and Reserves AND

• Veterans – 5 years after service

86

• NEW – If husband was deployed, Wife could take FMLA to care for HIS ailing parents.

87

4-21-408. TN MATERNITY4-21-408. TN MATERNITY

• Tennessee maternity leave - 100 or more full-time employees, as well as state employers.

88

4-21-408. TN MATERNITY4-21-408. TN MATERNITY

• 1. Employed 12 straight months

• 2. Male or female given up to 4 months for adoption, pregnancy, childbirth and nursing an infant,

• 3. MUST give 3 months advance notice (if possible)

• 4. Job guarantee -

89

ADA

90

AMERICAN DISABILTY ACTAMERICAN DISABILTY ACT

• 1. Cannot discrimination based on disability

• AND

91

REASONABLE ACCOMODATIONSREASONABLE ACCOMODATIONS

• 1. Can the EE perform the ESSENTIAL FUNCTION of the job

• 2. THEN ER must make reasonable accommodations for those with disability 3. unless is creates a undue burden.

92

ADAADA

• Americans with Disabilities Act – Disabiltiy

• 15 or more employees

• The U.S. Equal Employment Opportunity Commission (EEOC) enforces

93

Americans with Disabilities ActAmericans with Disabilities Act

• What is a disability: – physical or mental impairment that

substantially limits major life activities of such individual

– seeing, hearing, walking

• One court has recognized that morbid obesity may be a disability, while another court held that, morbid obesity is not a disability.

• The American Medical Association adopted a new policy that officially labels obesity -- not morbid obesity, but obesity -- as a disease.

95

96

Reasonable AccomodationsReasonable Accomodations

• 1. The ADA requires employers to offer reasonable accommodation to employees or applicants with a “disability” who are otherwise is qualified and can perform the ESSENTIAL functions of job.

• Cannot create an undue hardship on employer

Undue HardshipUndue Hardship

• Reasonable accommodation results in significant difficulty or expense

• Look to see if easier or cheaper way to accomodate

97

DocumentationDocumentation• When the disability and/or the need for

accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations.

• The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.

98

• An employee says to an employer, "I'm having trouble reaching tools because of my shoulder injury."

• The employer may ask the employee for documentation describing the impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee's ability to perform the activity or activities (i.e., the employer is seeking information as to whether the employee has an ADA disability).

99

• An employee brings a note from her treating physician explaining that she has diabetes and that, as a result, she must test her blood sugar several times a day. The note explains that a hyperglycemic reaction can include extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually would result in unconsciousness. Depending on the results of the blood test, the employee might have to take insulin. The note requests that the employee be allowed three or four 10-minute breaks each day to test her blood, and if necessary, to take insulin.

• The doctor's note constitutes sufficient documentation that the person has an ADA disability because it describes a substantially limiting impairment and the reasonable accommodation needed as a result. The employer cannot ask for additional documentation.

100

• Cashier – Jane works at grocery store and voluntarily discloses have diabetes and needs breaks for medicine.

• Employer?

101

• Rule – no eating at desk

• Diabetic states must eat occasionally to regulate glucose.

• Special treatment – what say to others

• Does employer have to ask for reasonable accommodations

102

• Custodian tells his boss that he recently been diagnosed with diabetes and needs three days off to attend a class on how to manage the condition.

• Go through ADA requirements

103

• Nurse with insulin treated diabetes rotated from working 6am to 2pm and midnight to 8am. Doctor writes note that the interference with her sleep and eating routine making difficult to manage diabetes.

• ADA? 104

• Ironworker at construction site hoisting iron beams weighing tons. People help him load beams and position them. During a break, supervisor becomes concerned because he is sweating and shaking. The employee explains blood sugar dropped.

105

• A cashier easily becomes fatigued because of lupus and, as a result, has difficulty making it through her shift. The employee requests a stool because sitting greatly reduces the fatigue.

106

• A cleaning company rotates its staff to different floors on a monthly basis. One crew member has a psychiatric disability.

• While his mental illness does not affect his ability to perform the various cleaning functions, it does make it difficult to adjust to alterations in his daily routine.

• The employee has had significant difficulty adjusting to the monthly changes in floor assignments.

• He asks for a reasonable accommodation and proposes three options: staying on one floor permanently, staying on one floor for two months and then rotating, or allowing a transition period to adjust to a change in floor assignments.

107

• Bonnie suffered from an inflammatory bladder condition causing frequent trips to the bathroom as often as every 20 minutes.

• Bonnie claimed that, upon Bonnie’s return to her desk, her boss allegedly would shake his head disapprovingly.

• After a short leave of absence, Bonnie’s desk was moved and her duties reassigned. Days later, she was terminated.

• ADA? • FMLA?

108

ADA - LeaveADA - Leave• Permitting the use of accrued paid leave,

or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability

109

Examples of ADA leaveExamples of ADA leave

• obtaining medical treatment; • obtaining repairs on a wheelchair, or prosthetic device; • 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);

• training a service animal (e.g., a guide dog); or • receiving training in the use of braille or to learn sign

language.

110

Return to JobReturn to Job

• An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship

111

Medical ExamsMedical Exams

• an employer may require a medical examination after making a job offer as long as it requires the same medical examination of other applicants offered the same type of job

112

INTERVIEW QUESTIONSINTERVIEW QUESTIONS

• Do you have a heart condition? Do you have asthma or any other difficulties breathing?

• How many days were you sick last year? • Have you ever filed for workers' compensation? Have

you ever been injured on the job? • Have you ever been treated for mental health problems? • What prescription drugs are you currently taking?

113

AFTER JOB OFFERAFTER JOB OFFER

• An employer can ask all of the questions listed previously and others that are likely to reveal the

existence of a disability after it extends you a job offer as long as it asks the same questions of other applicants offered the same type of job.

114

• All information about employees’ conditions is confidential. It is not to be shared with anyone except under the tight framework of the ADA, FMLA, HIPAA and other privacy laws.

• In EEOC v. Thrivent Financial for Lutherans (E.D. Wis., 2010),

• it is alleged that the company revealed medical information about a former temporary employee’s migraine condition as part of giving references.

115

ADA and FMLAADA and FMLA

• How should an employer handle leave for an employee covered by both the ADA and the Family and Medical Leave Act (FMLA)

116

• An employee with an ADA disability needs 13 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation.

• What do you do?

117

•PRIVACY ISSUES

118

• An employer may not conduct a credit or background check of an employee or a prospective employee unless authorization

119

Monitoring MessagesMonitoring Messages

• Employers Can monitor electronic messages where employees have consented to such monitoring, and

• Employers may monitor electronic communications whenever such monitoring is “in the ordinary course of business”

120

• polygraph (lie-detector test).

• ALLOWED - If suspected of economic loss or injury to the employer or work in armored car, security company, work with controlled substances or work in national security.

121

• What are the differences of working for a public federal governmental employer and private employer?

• Paterno -

122

PublicPublic

• Employer searches – Public Employment – 4TH Amendment

• Did the search violate an employee's reasonable expectation of privacy?

123

O’Connor v. OrtegaO’Connor v. Ortega• Dr. Ortega was accused on sexual harassment. Hospital officials

searched his office and seized personal items from his desk and file cabinets that were used in proceedings resulting in his discharge.

• Ortega sued, alleging that the search and seizure of his office and materials violated the Fourth Amendment.

• The U.S. Supreme Court - searches and seizures by government employers of the private property of their employees are subject to the restraints of the Fourth Amendment.

• Expectation Privacy – Does it need a warrant

124

PrivatePrivate

• SCT –Employees of private companies have almost no expectation of privacy when using company-issued equipment, including computers and hand-held devices.

• Sign

125

PART III

126

TENNESSEE LAWS

127

• Can’t fire for smoking away from work Tenn. Code Ann. § 50-1-304(e)(2).

• In Tennessee, an employer may have a no-smoking policy at work. An employee CAN be fired for violated that policy.

128

• Negligent Hiring - Negligence in hiring is measured on facts available pre-employment.

129

Negligent HiringNegligent Hiring

• Wisdom v. Maddry. In that case, two hospital patients sued a hospital after they were sexually assaulted by a male nurse. The plaintiffs claimed the hospital had failed to adequately investigate the employee's background, which would have shown his propensity to sexually abuse females.

130

October 2014October 2014

131

October 2014October 2014

• Semi Truck Driver plowed his truck into side of the home killing 66-year-old Carol Boo instantly.

• NewsChannel 5 has learned that the driver employed by Ice Line Logistics, pleaded guilty to a number of driving charges in the past.

• In 2011 and 2012, Wilson pleaded guilty to Operating Unsafe Equipment while in Pennsylvania. He was also cited for being out of service, or driving past his allotted log hours, in 2011.

132

• Non Compete Clauses -

133

Work Comp Retaliation Work Comp Retaliation

134

Drug TestingDrug Testing

• Private – allowed

• Government – Bill of Rights

• TN – drug test for work related injury

135

• Social Media – Employers checking it out prior during and after hiring

136

Tennessee recently passed the Employee Online Privacy Act of 2014 (Online Privacy Act) which will prohibit employers from requiring an employee or applicant to give the employer access to the employee or applicant’s personal social media account.

This law will go into effect in January 2015.

137

The Online Privacy Act prohibits an employer from:

1.Requiring an employee or applicant to disclose a password

2. Compelling an employee or applicant to add the employer to account

3. Compelling an employee or applicant to access a account in the presence of the employer

4. Discharging, failing to hire or penalizing an employee or applicant because of a refusal to disclose the password or comply with a request for one of the above prohibited actions.

138

• Individuals whose rights are violated under this law may sue the employer and recover up to $1,000.00 in damages for each violation, plus reasonable attorney’s fees and court costs.

139

•MISC

140

• So, would you be willing to tattoo the company's logo on your body if you were promised a 15 percent raise in return?

• Rapid Reality, a New York-based residential real estate brokerage firm, made that offer to its 800 employees, and nearly 40 employees permanently inked themselves with the company logo, according to Inman News, the online real estate news site.

141

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• I have over 4 years of experience in the health club industry and was hired by AF because of my experience. I left a sales management position and turned down other job offers at other health clubs because of what they promised and to better my career.

• I was hired by AF as the general manager. After about a week of employment with them, I was terminated for “not fitting their culture.“

• I felt that I was discriminated against. • I was also humiliated/embarrassed because they terminated me at

Starbucks at their morning rush hour after being told to meet there for outside training. I was only trained by the owners for 2 days after being told when hired I would get properly trained. Then they refused to give me a termination letter as well.

• Do I have a claim?

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• Tennessee Lawful Employment Act –

Er with 6 or more ees must verify new hires

Employers must request and maintain a copy of an approved identification document.

The law does not require employers to use the federal E-Verify program, but it does provide a safe harbor for employers that do.

• 20 days to report

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• Additional Tennessee Laws to be discussed in class:

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