Employment Law for HR Professionals · 2019. 7. 20. · EEOC Charge Statistics for FY 2018 • Sex...

7/19/2019

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Copyright © 2005-2019

Employment Law for HR Professionals

[Slides not included in Manual]

Jonathan K. Driggs, Attorney at Law, P.C.Employment Law Consulting & Seminars

(801) 361-6706 | [email protected] | jkdlawpc.com

Employment Law For HR Professionals

Scenario

• Sara has serious concerns about Luke’s performance and meets with him to discuss.

• She starts with a lot of praise (some undeserved).

• She then says, “Luke, I have a small concern about <performance problem>.”

• She follows up with a lot more praise (again, some undeserved) and ends the meeting.

• Luke walks out thinking what?

• Sara walks out thinking, “I hope Luke got the hint.”


Section 5: Retaliation Claims

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EEOC Charge Statistics for FY 2018

• Sex 24,655 (32.3%)

• Disability 24,605 (32.2%)

• Race 24,600 (32.2%)

• Age 16,911 (22.1%)

• Nat’l Origin 7,106 (9.3%)

• Color 3,166 (4.1%)

• Religion 2,859 (3.7%)

• Genetic Info 220 (.3%)

• Total Charges: 76,418



• Retaliation 39,469 (51.2%)

• Sex 24,655 (32.3%)

• Disability 24,605 (32.2%)

• Race 24,600 (32.2%)

• Age 16,911 (22.1%)

• Nat’l Origin 7,106 (9.3%)

• Color 3,166 (4.1%)

• Religion 2,859 (3.7%)




Scenarios

• Two employees call OSHA about a safety violation without giving OC an opportunity to fix the problem. They do this in bad faith (they are upset about something else). The manager wants to fire them for “disloyalty.”

• Eli is accused of sexual harassment by his employee, Zoe. As a result of the investigation, Eli is cleared of any wrongdoing. However, Eli is upset that his reputation has been damaged. He withholds a pay increase Zoe otherwise deserved.

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Excerpts from EEOC’s Retaliation—Making it Personal

How evidence of retaliation is found:

• Temporal proximity

• Verbal or written statements

• Comparative evidence that a similarly situated employee was treated differently

• Falsity of the employer's proffered reason for the adverse action



The act of retaliation is equivalent to revenge where a person perceives unfair treatment and attempts to restore equilibrium by taking the matter into his or her own hands.

Research has consistently demonstrated that the desire for retaliation is common upon experiencing an offensive interpersonal encounter, particularly if the encounter threatens one's self image.



The process of retaliation begins with a perceived offense (e.g., initiating a discrimination claim).

If those accused sincerely believe that they have done nothing wrong, or if they believe that their offensive behavior was somehow justified, they may begin to ruminate and desire retaliation.

In this regard, retaliation is a coping mechanism –a way of alleviating the psychological discomfort associated with perceived injustice.



Several factors ultimately affect whether a manager will engage in retaliation. These include the manager's psychological traits, perceptions of the organizational culture, and organizational opportunities.

Personalities with higher risk of retaliating:

• Those with a sense of entitlement will experience offenses much more emotionally than others and take them much more personally.

• Authoritarian personalities, people who place a high value on status in group settings



Individuals are also more likely to retaliate, if:

• The accusation is very serious

• The accusation will negatively impact future relationships with others at work

• The accused feels that he or she is being judged

• The accused believes that his or her job is in jeopardy

• There is reason to believe that the accusation will harm perceived employability.


Excerpts from EEOC’s Retaliation—Making it Personal ‐‐ How HR Can Help Managers

Talk to the manager who has been accused:

• Acknowledge the potential emotional response involved with being accused of a discriminatory action

• Discuss the problematic implications of seeking to avenge any perceived offense

• Review examples of both constructive and problematic responses with the manager

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Scenario

More than a year after being accused of sexual harassment, Eli approaches his HRG and presents a strong case for putting Zoe on a PIP.

Shortly thereafter, Zoe is terminated as a result of Eli’s recommendation.


Scenario

More than a year after being accused of sexual harassment, Eli has approached his HRG and presented a strong case for putting Zoe on a PIP (with a strong possibility of termination following).

Cat’s paw legal doctrine: employee seeks to hold employer liable based on the retaliatory intent of a supervisor who was not responsible for making the ultimate employment decision.


Scenario

Liza discovers that one of her employees has flamed her on Facebook by posting the following statement online:

“My manager, Liza, is a total b----.” She’s making us work tons of overtime and doesn’t give a %@&! about the impact on our personal lives. My fellow coworkers, I know you’re lurking out there. “Like” my comment if you agree that we should get this slave-driving pathetic-excuse-for-a-human-being fired! I am TIRED of dealing with her abusive and despicable treatment! SHE IS THE WORST MANAGER I HAVE EVER WORKED FOR IN MY 20 YEAR CAREER!”


Scenario

A manager approaches you about concerns about Tom, an employee. His coworkers are upset about the frequent posts he is making on social media regarding his political views (his coworkers consider his views to be a bit extreme/insensitive). Coworkers are pressuring the manager to take action against Tom.

All of Tom’s social media activity happens outside of work. While Tom’s views may be outside the mainstream, Tom is not making any threats, violating policies, etc.

What should you do?


Section 2: An Overview of the Legal System

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How Compliance Obligations are Created

• Statutory law• Created by legislative branch

• Case law• Created by judicial branch

• Regulations• Created by executive branch (government agencies)

• Executive Orders• Created by head of executive branch

• Referendums• The people!

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Understanding the Interplay between Different Levels of Government

FEDERAL GOVERNMENT:• LB: Congressional gridlock• EB: Gov’t agencies and

Executive Orders• JB: Conservative majority

in Sup. Court maintained

STATE GOVERNMENTS:• Response depends

upon political orientation• Liberal: Passing pro-Ee

laws they wish Congress would pass

• Conservative: Some try to limit local gov’ts power to pass pro-Ee ordinances

LOCAL GOVERNMENTS:• Response depends upon

political orientation• Liberal: Passing pro-Ee

laws they wish Congress would pass


Examples of Different Types of Laws being Passed by State & Local Governments

• Paid sick leave

• Fair pay laws: CA, MA, MD, NE, NJ, NY, OR

• Salary inquiry bans: DE, OR, MA and misc. cities

• Predictable scheduling

• Legalization of marijuana

• “Ban the Box” (limiting criminal background inquiries)

• Vive la France! The right to disconnect (Ers must negotiate with Ees about when they don’t have to respond to calls/emails)


Section 4: Employment Discrimination Laws

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The Protected Classes

Federal Law:

• Race

• Color

• National Origin

• Religion

• Sex

• Age

• Disability

• Genetic Information

• Military Status*

• Citizenship & Immigration Status*

Honeywell Policy AlsoIncludes:

• Ethnicity

• Affectional/Sexual Orientation

• Gender Identity

• Pregnancy

• Marital Status

• Civil Union Status

• Any other protected class

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The Protected Classes Simplified

• Race • Color

• National Origin

• Religion

• Sex• Marital/Family Status

• Pregnancy

• Age

• Disability

• Sexual Orientation

• Gender Identity

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• Sex 24,655 (32.3%)

• Disability 24,605 (32.2%)

• Race 24,600 (32.2%)

• Age 16,911 (22.1%)

• Nat’l Origin 7,106 (9.3%)

• Color 3,166 (4.1%)

• Religion 2,859 (3.7%)



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Legal Trend: Some States & Local Gov’ts Passing Laws Regarding Applicant Salary History (SH)

• Laws include a mix of the following provisions:• Banning questions about SH

• Prohibiting adverse actions or retaliation against applicants who don’t disclose

• Banning use of SH when setting comp

• When inquiries or use of SH is permissible

• Requiring pay ranges to be disclosed to applicants

• A few states have “banned SH bans!” (MI & WI)

• When no ban in Ers jurisdiction: when are these laws applicable for out of state applicants?

• It is lawful in all jurisdictions to ask: “What are your salary expectations?”


Gender Wage Equity Debate: Federal Level

• Paycheck Fairness Act (unpassed bill)

• Replaces weak Equal Pay Act

• Gaining traction 2009+

• Passed in House 2019

• Now: not likely to pass until political change in White House & Congress

• Passing PFA is #1 legislative priority once political change happens


Gender Wage Equity: States Passing Aggressive Wage Equity Laws (Paycheck Fairness Act)

• The following states have recently passed versions of the Paycheck Fairness Act:• California

• Illinois

• Maryland

• Massachusetts

• New Jersey

• Oregon

• Washington

• More states likely to follow!


California Fair Pay Act

• Comparing workers doing “substantially similar work”

• Ers must justify entire pay differential and may onlyuse the following defenses:1. A seniority system

2. A merit system

3. A system that measures earnings by quantity or quality of production

4. A bona fide factor (BFF) other than sex, including skills, education, training, experience, shift or geography

• To use BFF (#4) defense Er must prove:• Any difference not derived from sex-based factor

• Factor is job-related and consistent with business necessity (i.e., employer must show an overriding legitimate business purpose to use BFF)


LGBTQ Issues

• Harassment

• “Is he or isn’t he?” gossip

• Name-calling

• Shunning/excluding

• Bathroom usage

• Transitions

• Name changes

• “Respect” allows for differences in opinion but not for disrespectful treatment.


How Appearances of Discrimination are Created

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1. Favoring those Most like Ourselves

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Scenario

Bryson manages both male and female employees.

But he is more comfortable hanging out with his male employees and talking/doing “guy stuff.”

As a result, female employees don’t get to spend as much time with their boss as do their male coworkers.

Bryson then has to select one of his employees for promotion… and he selects a male employee.

What appearance is potentially created?


2. Poisoning the Well

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• “We could hire two good young engineers for what we’re paying Charlie.”

• “At least your husband has a good job.”

• Military service was “bull----” and “a bunch of smoking and joking” and “a waste of taxpayer’s money”

• COO referred to employee as an “old, gray-haired f---.” (rhymes with “tart”)

• Use of racially offensive language

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Excerpts from My Sad Catalog of Racial Slur Cases

• Employee standing next to coworker who is talking to their boss on the phone (overhears boss use racial slur)

• Supervisor jokingly uses racial slurs in attempt to “bond” with employee… “we’re buddies, right?”

• White, male supervisor really into hip-hop culture mistakenly sends text with racial slur to his African American employee instead of his outside of work friend



• School superintendent told older employee “I need 21st century communication skills” and that a younger coworker “is better at that”

• Superintendent gave PP presentation to staff on “21st century communication skills” that included the following definitions:• “Digital immigrants” = people born before

computer technology had developed

• “Digital natives” = people born after computer technology had developed

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• Plant manager commented that he “was not a big fan of hiring people with physical disabilities.”

• Then manager sent out a group text to other managers about employees in question in which he stated, “Well I don't think it's gonna work out guys bc of the physical issues and needing to take pain meds for them. [Plant Manager] is not a big fan of hiring people with physical disabilities. Sorry if I would have known about them before I would have said something to u guys.”

• Shortly thereafter, the manager sent an email to the staffing company regarding the employees, in which he stated that they “have some physical disabilities that they are taking pain meds for on [an] as needed basis and [P.M.] is not a fan of that nor am I. If I would have known this prior I would have never sent them or given them the offer.”


2. Poisoning the Well (HR Version! )

• Caucasian head of HR Dept. said “let’s change the complexion of the group.”

• “Men have a propensity to commit sexual harassment.”

• “That’s so gay!”

• “You know what’s in your file.”

• HR Director began termination meeting with, “we’re not letting you go because you’re sick.” Then, when asked for the reason, she said without further explanation, “I think you know what it is.”

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3. Creating your own Monsters

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Scenario

New hire Dane is assigned to Ava’s team.

Ava quickly finds out that Dane has a toxic personality.

Ava doesn’t have time or energy to deal with Dane.

Dane does things that should trigger a warning, but no warnings are issued. Perf. evaluations come and go and everything is marked “good/excellent.”

After 3 years, Dane is transferred to a new manager who IS willing to grapple with Dane and…


Section 7: Illegal Harassment

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Things That Leaders Really Should Never Say or Do

• Commenting on sexual attractiveness of employees• “Evaluating” sexual attractiveness

• Flirtatious behavior

• Making references to sex• Sexualizing conversations

• Wandering eyes

• Watch out for rationalizations:• “Work is stressful, I am just providing comic relief…”

• “Had I known someone would be offended, I wouldn’t have said it.”

• Allowing “favored” employees greater leniency

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Section 8: The Rights of Disabled Employees

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Pop Quiz!

An employee approaches her supervisor and discloses that she has a medical condition. She implies that she may need an accommodation.

What should the supervisor say in response?

• “Please tell me more about your medical condition.”

• “How can I help you?”


Scenarios

An applicant tests positive for marijuana. When informed of test results, she produces a prescription for medical marijuana (for back pain).

Lex is in a safety sensitive position. One day, he appears to be under the influence at work and is tested. He tests positive for marijuana. When informed of test results, he produces a prescription for medical marijuana (for anxiety).


Legalization of Marijuana

• Marijuana is illegal under federal law

• ADA excludes illegal substances

• Failure to accommodate cases being brought under state disability laws

• 33 states and DC have legalized marijuana in some form

• 11 of these states have legalized recreational usage

• Level of protection varies significantly from state to state

• Many of these laws are ambiguous regarding employment protections (focus mainly on protection from criminal prosecution)

Employment Law For HR Professionals Employment Law For HR Professionals

Marijuana and the Workplace: Questions to Ask

• What type of usage and where? • Medical or recreational, on or offsite?

• What are the applicable laws for the jurisdiction?• Does law provide employment protections?

• Options: 1) Employee protections, 2) employer protections, 3) do not address

• Is usage within scope protected by law?

• Company’s policy issues• How did issue arise? (test, voluntary disclosure?)

• Job-specific issues• Was the person impaired at work? Impacting performance?

• Safety sensitive position?

• Governmental restrictions? (e.g., FAA, DOT)

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Scenario

Jerry is a skilled machinist working in a position that requires mandatory overtime (which happens frequently). He has some ongoing problems with his back.

One day he hands you a note from his doctor requesting the accommodation of limiting his work hours to no more than eight per day.


Scenario

Assembly workers are required to rotate through four different work stations.

Manny brings in a note from his doctor stating that due to his back condition (a workplace injury originating in 2017), he can only work stations #1 and #3.

This is a union environment and some of Manny’s requested accommodations conflict with seniority rights.


Scenarios

• An otherwise qualified applicant at an industrial site has a medical condition that prevents her from wearing an oxygen mask.

• An otherwise qualified applicant is overweight and cannot wear the required fall apparatus.


Scenario

During the interview process, Lindsey enthusiastically indicates that she can perform various manual labor tasks required for the job.

However, during her first week on the job, she struggled to perform these functions.

On the second week, she brought in a note from her physician indicating that she has ongoing shoulder/neck impairments and that she needs various accommodations.


Scenario: Inconsistent Use of Medication

Tonya has been diagnosed with bipolar disorder.

When she takes her meds consistently, she can perform the essential functions of her job with reasonable accommodation.

When she doesn’t take her meds, her performance falls below acceptable levels.


Scenario

Kylie asks for a red Titan Osaki 3D Pro Cyber Massage Chair (only $5,795!) as an accommodation for her back problem.

However, there is a chair available for $500 that meets her doctor’s requirements.

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Scenario: The Long, Slow Decline

Michael’s performance has been declining. Warnings have been issued. If improvements are not made, he will likely be terminated.

Michael informs HR that he has been diagnosed with depression. He utilizes both the FMLA & ADA.

He exhausts his FMLA through use of a full time and intermittent leave.

He continues to miss a lot of work on an intermittent basis, his performance remains poor.

His supervisor is becoming increasingly frustrated. Some communications (including via text) reflect this frustration.


EEOC: Factors to Consider when Determining if Undue Hardship Exists

• Amount of leave requested (including leave already taken)

• Frequency of leave

• Degree of flexibility regarding days leave is taken

• Whether need for intermittent leave on specific dates is predictable or unpredictable

• Impact of the employee’s absence on coworkers and on whether specific job duties are able to be performed in an appropriate and timely manner

• Impact on employer’s operations and ability to serve customers in appropriate and timely manner

--Employer Provided Leave and the Americans with Disabilities Act, U.S. EEOC, May 9, 2016


Scenario

Tony (supervisor) and Mario have a somewhat complicated working relationship.

One day, Mario brings in a note from his doctor verifying that he has a sleep disorder and needs a flexible start time (1-2 hours).

This really irritates Tony. But when questioned, Tony struggles to come up with a meaningful reason as to why a flexible start time wouldn’t work for Mario’s position (other than the fact that the company doesn’t normally allow flexible start times).


Scenario

Cheryl is a Purchasing Agent. Her current performance problems would typically result in a PIP being issued.

However, her manager is taking a “hands off” approach because Cheryl has a disability (migraine headaches) that requires fairly extensive accommodations (with frequent dialogues about effectiveness, etc.)


Case Law: Failing to Discipline is Disparate Treatment Discrimination

Employer may have discriminated against disabled employee by not counseling him for performance problems, when non-disabled employees were counseled and therefore given the opportunity to improve.

--Caldwell v. KHOU TV, 5th Circuit, 2017


Scenario

A manager you support is planning on terminating Natalie on Friday for a mix of performance problems and policy violations.

However, on Thursday she informs you that he has been diagnosed with chronic depression and needs an accommodation. She claims there is a link between her condition and her performance problems.

Alternative scenario: during performance evaluation meeting, while the manager is giving Natalie feedback about improving her performance, Natalie discloses depression condition.

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ADA: Accommodations are Always Prospective:Dewitt v. Southwestern Bell Tel. Co., 10th Circuit., 2017)

Facts: Ee with diabetes worked as a call-center CSR. She was on a LCA for performance. Two months later, she dropped two calls. Her supervisors conducted a suspension meeting, and Ee explained she did not remember ever taking the calls and that she was experiencing dangerously low blood sugar levels at time. She was terminated. She filed suit for failure to accommodate.

Holding: for employer. Accommodations are always prospective. Ers not required to excuse past misconduct even if related to disability (no requirement for “retroactive leniency”).


Scenario

Tia has OCD. She is having ongoing conflicts with her supervisor regarding how her job assignments are given to her. Tia has asked her supervisor to put her assignments in writing, along with listing a completion date.

The supervisor prefers to stop by Tia’s cubicle and give her instructions verbally. The supervisor thinks Tia is just being difficult, but Tia claims that she feels overwhelmed and stressed when her manager just “dumps stuff on her.”


Scenario

Ami claims her supervisor is causing her severe panic/anxiety attacks and is requesting that either she or her supervisor be transferred.

Federal District Court ruled:

• Severe emotional distress caused by one person in one setting not a disability.

• Request for transfer to another supervisor not a reasonable accommodation.

--Summers v. Target Corp., E.D. Wisconsin (2019)


Scenario: Anti‐Social Behavior

At times Tom can be a little rude, abrasive and argumentative when interacting with team members. He is often a little intense, causing coworkers to avoid him at times. There aren’t specific concerns about violence from Tom. His performance is otherwise satisfactory.

He has been diagnosed with PTSD as a result of military service in Iraq and his physician has indicated that his condition will cause him to struggle in his interactions with others.


Scenario

Val, an Administrative Assistant, asks if she can bring Fluffy to work because he (i.e., Fluffy) needs to take medicine on a set schedule.

Val then says Fluffy is an emotional support animal (ESA) and she needs to bring him to the office with her to help manage her anxiety.

Fluffy has growled and bared his teeth at other employees. He’s also messed on the floor.


ADA: Service Animals as Accommodations

• Title I of ADA does not define “service animal” (SA)

• Obligation to accommodate trained SAs is high unless undue hardship/safety issue

• Obligation to accommodate ESAs is unclear

• Per Job Accomm. Network:

1. No animals policy?

2. Medical verification

3. Interactive dialogue

• Animal trained, under employee control at all times?

4. Trial basis? (in writing)

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Section 10: The Family & Medical Leave Act

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FMLA Scenario

Jennifer applies for FML for her own SHC. An Eligibility Notice is given to her (she is eligible) along with a medical certification (MC) for her physician to complete. Because the need was unforeseeable (sudden onset), the employer allows her to begin leave immediately pending final confirmation (the completion of her MC).

However, despite repeated requests, after more than three weeks Jennifer has still not returned her MC. What are the employer’s options?


Scenario

Liz is ready to return from FML/STD leave due to her knee surgery. However, per her doctor, she is requesting a part-time/light-duty position. What is your obligation under this situation?

You become aware that Liz’s manager’s initial response was, “you can’t come back to work until you are 100%.”

So, how do you handle situations in which employees appear to no longer be able to do their jobs?


Section 11: Responding to Employee Misconduct & Poor

Performance

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The Coaching Model

• If your son or daughter were playing on a sports team, what would you expect from the coach?

• If the coach never gave your son or daughter feedback about his/her performance, would you feel you’re getting value from the relationship?


Setting the Expectation to be Coached

• Discuss: the role of a coach

• To give feedback (praise and correction) in order to maximize performance Inform employee:

• “I am your coach”

• Reveal motivation: “I am committed to helping you be successful in your role”

• Set expectation: “I will be giving you feedback”

• Make agreement: are you willing to receive feedback?

• New hires:

• Have this conversation during onboarding process

• Have this conversation during the job interview

• Are you hiring employees who are willing to be coached?

• Existing employees:

• Reset expectations during one-on-one meetings

• Can be discussed in team meetings as well

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Scenario

Michelle manages Ali. They went to high school together years ago and played on the same volleyball team. They fellowship at the same church and have many shared family and friend connections (resulting in them often seeing each other outside work).

Ali’s performance has been poor for some time and is getting worse. Michelle, however is reluctant to take action against Ali because their history and social connections make it all, well… complicated.

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Employment Law for HR Professionals · 2019. 7. 20. · EEOC Charge Statistics for FY 2018 • Sex...

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Transcript of Employment Law for HR Professionals · 2019. 7. 20. · EEOC Charge Statistics for FY 2018 • Sex...