Legal Issues Regarding Employment: What a Supervisor …
Transcript of Legal Issues Regarding Employment: What a Supervisor …
Legal Issues Regarding Employment: What a Supervisor Needs to Know
Champlain CollegeAugust 11, 2009
Presented by Jeffrey J. NolanDinse, Knapp & McAndrew, P.C.
Agenda
• Your legal responsibilities and role as a supervisor
• Anti-discrimination law concepts
• A supervisor’s role in preventing, addressing harassment / discrimination
• Retaliation issues
• Disability Law Issues
• Selected Wage and Hour Law Issues
• Other pertinent employment laws
Agenda
• Confidentiality Issues
• Documentation Issues
• Record Maintenance and Retention
• Performance Evaluation Concepts
The Supervisor’s Role and Responsibilities
“Protected Characteristics”
• Harassment or discrimination based on or because of the following characteristics violates federal and/or Vermont law, and violates College policy:
• race, color, ancestry, national origin
• religion, age
• sex /gender/gender identity
• disability (including duty of reasonable accommodation), genetic information, HIV-positive status (Vt.)
• sexual orientation (Vt.)
• military service
Types of Discrimination
• Disparate treatment
– basing employment decisions or terms on unlawful criteria, stereotypes, or perceptions
• Disparate impact
– using test or requirement that has effect of excluding members of particular group, but is not bona fide occupational qualification
• “Hostile work environment” harassment
Unlawful harassment
• Harassment based on characteristic includes, e.g.:
– jokes, comments, e-mails, graphics, threats, etc. that refer to characteristic
– comments, graphics, conduct, etc., or conduct that person finds offensive because he or she has characteristic
• Harassment because of a characteristic includes: other types of (general) harassment directed at a person because he or she has characteristic
Unlawful harassment
• Harassment is unlawful when it is:
• based on or because of a protected characteristic, and
• so severe and pervasive that it:
• (objectively) creates an environment that a reasonable person would find hostile or abusive, and
• (subjectively) is actually perceived as hostile or abusive, and/or that interferes with work performance
Unlawful harassment
• Single incidents can be severe enough to create unlawful hostile environment
• Aggregation of a series of comments, incidents, etc. is more common basis for claims
• Sexual harassment can occur regardless of genders of employees involved
• Off-campus incidents can constitute harassment
• Practical advice: consult with HR and take appropriate action on questionable conduct, whether technically unlawful or not
Liability Issues- Federal Law
• Under federal law (Title VII)
• employers will be automatically liable for harassment by supervisors that results in adverse job action
• why? in part because supervisors have “apparent authority” of employer, and employer is in best position to select and train supervisors
Liability Issues- Federal Law
• Where a supervisor creates hostile work environment only (no adverse action), employer still automatically liable unless:
• employer shows it exercised reasonable care (e.g., training) to prevent and correct harassment, and
• the plaintiff employee unreasonably failed to take advantage of corrective or preventive opportunities
Liability Issues- Federal Law
• Liability for co-worker harassment is not automatic--rather, it is usually based on:
• employer’s tolerating or permitting a hostile environment of which it knew/ should’ve known
• and/or failing to take prompt, appropriate corrective action after complaint is made
– all aspects of complaint process (procedures, supervisor reactions, confidentiality, quality of investigation, remedial action taken) are important
Liability Issues- Vermont Law
Under Payne v. U.S. Airways and Michael Cline (Vt., 9/25/09), supervisors may be held individually liable for:
• Workplace discrimination/harassment that violates Vermont’s Fair Employment Practices Act
– Could include individual liability for compensatory damages (i.e., back and front pay), punitive damages, and payment of employee’s attorney’s fees
• Under Payne, supervisors may also be held liable for retaliation against an employee because she made a workers’ compensation claim
Prohibited Retaliation
• Discrimination / harassment-related retaliation is unlawful-protected conduct includes:
– making a complaint of harassment
– supporting another employee’s complaint
– participating in an investigation
– making a workers’ compensation claim
• Retaliation can include:
– adverse actions taken in retaliation
– creating or tolerating work environment hostility that is motivated by protected conduct
Supervisor responsibilities
• pay attention to environment
• be attuned to practically low threshold for what some staff may subjectively find offensive
• personally set highest standard of intolerance for potentially harassing comments, conduct, etc.
• identify and report suspected or reported harassment to HR
Supervisor responsibilities
• follow procedures if complaint is made
• be discrete with staff if complaint is made
• when communicating regarding harassment complaints or issues, recognize that all non-privileged documents, notes, e-mails, etc. may be discoverable
• be very sensitive to potential for retaliation
• follow up (in consultation with HR) after complaint is resolved
Disability Law Discussion Objective: Sensitize, not Memorize
• Goal of discussion: issue spotting
• This training is to help supervisors spot issues and respond appropriately to initial requests for accommodation, not to master intricacies of ADA/Vermont Fair Employment Practices Act
Fundamental Disability Law ConceptsUnder ADA, as broadened substantially by the ADA
Amendments Act of 2008 (“ADAAA”), a “disability” is:
– A physical or mental impairment that substantially limits one or more major life activities, such as, e.g.:
• eating, sleeping, standing, lifting, bending, breathing, learning, reading, concentrating, thinking and communicating
• Includes the operation of major bodily function, i.e. immune, digestive, bladder, neurological, respiratory, circulatory, reproductive systems
Fundamental Disability Law Concepts
• Disability laws also prohibit discrimination against an individual who:
– Has a “record of” having a disability, or
– Is “regarded as” having a disability
• Under ADAAA, a perceived impairment does not have to (be perceived to) limit a major life activity (i.e., be a “qualified ADA disability”) to invoke the “regarded as” protection
Fundamental Disability Law Concepts• Under ADAAA, “The determination of whether an
impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigation measures . . . .”
– Formerly, e.g., successfully-medicated mental illnesses, medically-controlled conditions or mobility impairments might not be covered
• Under ADAAA, “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”
Fundamental Disability Law Concepts
• “Reasonable Accommodations”
• Essential functions of the job
– Importance of job descriptions in defining them
– Marginal functions
• Example reasonable accommodations
• Supervisor’s role in “accommodation dialogue”
Fundamental Disability Law Concepts
• Do not have to provide accommodations that would create an “undue hardship”
– Administrative
– Financial (cost of accommodations is not a supervisor’s immediate concern)
Fundamental Disability Law Concepts
• Do not have to accommodate employee who poses a “direct threat” to self or others, considering:
– the nature, duration and severity of risk;
– the probability that potentially threatening injury actually will occur; and
– whether reasonable modifications of policies, practices or procedures will sufficiently mitigate the risk.
Fundamental ADA Concepts
• General disparate treatment principles apply
• General anti-harassment principles apply
• General anti-retaliation principles apply
Fundamental Disability Law Concepts
• Medical and other ADA-related information is confidential-
– to be shared on “need to know” basis only
– Do’s and Don’ts of interviewing (discussed in more detail in a moment)
Practical Disability Law Issues
• Emphasize importance of following College practices or procedures in all cases
• When is a disability “known”?
• What do you do with an ambiguous “request for accommodation”?
• How do you manage an apparent psychological impairment which affects performance?
• Discussion of interaction between ADA, FMLA, workers’ compensation
• Telecommuting issues
Interviewing (Generally and for Disability Law Purposes)Do:
– Ask generally similar questions of all interviewees
– Follow similar process, at various stages, with all interviewees
– Limit questions to job-related areas
– Use job description as a guide, and specific reference in interview
– Ask whether applicants can perform the essential functions of the job, with or without reasonable accommodations
– Prepare notes and other documents carefully, and maintain them for appropriate time periods
Interviewing (continued)• Don’ts:
– Avoid promises
– Don’t ask questions that would solicit information about protected characteristics (e.g., national origin, religion, age, family obligations)
– Don’t ask questions about potential disability-related issues
– Don’t ask questions about workers’ compensation history
– Don’t ask questions about military or national guard obligations
– Don’t ask about arrest history
– Don’t forget that all aspects of interaction, formal and informal, are part of interview process
Selected Wage and Hour Issues
• Exempt vs. Non-Exempt Classifications
• Importance of recognizing all “hours worked” by non-exempt employees
– PDA issues
– Telecommuting issues
• “Unauthorized” overtime issues
• Overtime/“Workweek” issues
• Working time/”sick time” issues
• Supervisors’ responsibilities re time reporting
Other laws
• Vermont workplace smoking law
– Effective 2009, prohibition extends to any “enclosed structure where employees perform services for an employer”; designated indoor “smoking areas”, allowed under former law, are not longer permitted
• Workers’ compensation law
• National Labor Relations Act
• Family Medical Leave Act/Vt. Parental Family Leave Act
• Uniformed Services Employment and Reemployment Rights Act (“USERRA”)
Records issues
• Confidentiality Issues
• Documentation Issues
• Record Maintenance and Retention
Performance evaluation/discipline
Questions?