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?