Supervision (ADH): Arkansas Legal Environment (Update Module I) Course I.D. #1022659

Keeping Your Hometown HealthyArkansas Department of Health

Supervision (ADH):Supervision (ADH):Arkansas Legal Arkansas Legal EnvironmentEnvironment(Update Module I)(Update Module I)Course I.D. #1022659Course I.D. #1022659

Providers:Providers: Mary Mary LeathLeath

Reggie Reggie RogersRogers


Branches of State GovernmentBranches of State Government

Freedom of Information ActFreedom of Information Act(FOIA)(FOIA)

It’s The LawIt’s The Law

Fair Labor Standards ActFair Labor Standards Act


Branches OfBranches OfState GovernmentState Government


Overview of State Overview of State

GovernmentGovernment


Overview of State GovernmentOverview of State Government

Branches of Government:Branches of Government:

Executive BranchExecutive Branch

Legislative BranchLegislative Branch

Judicial BranchJudicial Branch



Constitution of the State of Arkansas Constitution of the State of Arkansas of 1874.of 1874.

Article Four (4) of the Constitution.Article Four (4) of the Constitution.

Departments of State Government:Departments of State Government:

LegislativeLegislativeExecutiveExecutiveJudicialJudicial



Article Six (6) of the Constitution.Article Six (6) of the Constitution.

Outlines the Executive Department of the Outlines the Executive Department of the State of Arkansas.State of Arkansas.

http://www.sos.arkansas.gov/ar-consitution/arcart6/arcart6.htm

Twenty-three (23) sections.Twenty-three (23) sections.


Overview of State GovernmentOverview of State Government Executive Branch:Executive Branch:

Elected Officials:Elected Officials:

Governor – Mike BeebeGovernor – Mike BeebeLieutenant Governor – Bill HalterLieutenant Governor – Bill HalterSecretary of State – Charles DanielsSecretary of State – Charles DanielsAttorney General – Dustin McDanielAttorney General – Dustin McDanielTreasurer of State – Martha ShoffnerTreasurer of State – Martha ShoffnerCommissioner of State Lands – Mark WilcoxCommissioner of State Lands – Mark WilcoxAuditor of State – Jim WoodAuditor of State – Jim Wood



Governor:Governor:

The Chief Executive Officer of the State.The Chief Executive Officer of the State.

““Section 2 – The Supreme Executive power of Section 2 – The Supreme Executive power of the State shall be vested in Chief Magistrate the State shall be vested in Chief Magistrate who shall be styled ‘The Governor of the State who shall be styled ‘The Governor of the State of Arkansas’.”of Arkansas’.”


Overview of State GovernmentOverview of State Government Lieutenant Governor:Lieutenant Governor:

Presides over Senate with tie-breaking vote.Presides over Senate with tie-breaking vote.

Acting Governor when Governor out-of-state.Acting Governor when Governor out-of-state.

Becomes Governor, if current governor:Becomes Governor, if current governor:

Is impeachedIs impeached Is removed from officeIs removed from office DiesDies Is otherwise unable to serveIs otherwise unable to serve



Secretary of State:Secretary of State:

Official Keeper of Records:Official Keeper of Records:

Keeps a full and accurate record of all official acts Keeps a full and accurate record of all official acts and proceedings of the Governorand proceedings of the Governor

Provides those records to the General Assembly Provides those records to the General Assembly when requiredwhen required

Superintendent of Public Instruction (until Superintendent of Public Instruction (until otherwise provided by law)otherwise provided by law)

Such duties as may be prescribed by lawSuch duties as may be prescribed by law



Attorney General:Attorney General:

State’s top law enforcement officer and its State’s top law enforcement officer and its chief consumer advocate.chief consumer advocate.


Overview of State GovernmentOverview of State Government Attorney General’s Major Duties:Attorney General’s Major Duties:

Representing most state agencies, boards and Representing most state agencies, boards and commissions in courts of law.commissions in courts of law.

Advocating for citizens with regard to Advocating for citizens with regard to environment, utilities, antitrust and consumer environment, utilities, antitrust and consumer protection issues.protection issues.

Providing opinions on legal issues presented Providing opinions on legal issues presented by legislators, prosecutors and heads by legislators, prosecutors and heads of state agencies.of state agencies.



Attorney General’s Major Duties (cont’d)Attorney General’s Major Duties (cont’d)

Pursuing civil remedies on behalf of the Pursuing civil remedies on behalf of the Arkansas Medicaid Program for fraud and Arkansas Medicaid Program for fraud and neglect.neglect.

Handling all criminal appeals and habeas Handling all criminal appeals and habeas corpus matters on behalf of the state.corpus matters on behalf of the state.



Commissioner of State Lands:Commissioner of State Lands:

The landed interests of this state shall be The landed interests of this state shall be controlled by the Commission of State Lands, controlled by the Commission of State Lands, and he or she shall dispose of them as and he or she shall dispose of them as provided by law.provided by law.



Treasurer of StateTreasurer of State““A bank for the State”A bank for the State”

““General accountant of the State” General accountant of the State”

Auditor of StateAuditor of State

““General accountant of the State”General accountant of the State”



Legislative Branch:Legislative Branch:

General Assembly:General Assembly:

SenateSenateHouse of RepresentativesHouse of Representatives



Arkansas Senate:Arkansas Senate:

Chosen by district electors:Chosen by district electors:

Every four (4) yearsEvery four (4) yearsThirty-five (35) districtsThirty-five (35) districts



Arkansas House of Representatives:Arkansas House of Representatives:

Chosen by county electors:Chosen by county electors:

Every two (2) yearsEvery two (2) yearsOne-hundred (100) districtsOne-hundred (100) districts



Arkansas General Assembly:Arkansas General Assembly:

Website – Website – www.arkleg.state.ar.us/

LegislatorsLegislators CommitteesCommittees CalendarsCalendars Search forSearch for

– BillsBills

– ActsActs

– Arkansas CodeArkansas Code



Judicial Branch:Judicial Branch:

Supreme Court.Supreme Court.

Court of Appeals.Court of Appeals.

Courts of original jurisdiction.Courts of original jurisdiction.

Circuit CourtsCircuit CourtsDistrict CourtsDistrict Courts


State GovernmentState Government

StructureStructure


Chief Fiscal Officer Chief Fiscal Officer

of the Stateof the State



The Chief Fiscal Officer of the State:The Chief Fiscal Officer of the State:

Director.Director.

Department of Finance & Administration.Department of Finance & Administration.



Chief Fiscal Officer:Chief Fiscal Officer:

Assist the Governor in the preparation of the Assist the Governor in the preparation of the financial plan.financial plan.

Develop procedures to produce the information Develop procedures to produce the information needed for effective policy decision-making.needed for effective policy decision-making.



Chief Fiscal Officer (cont’d):Chief Fiscal Officer (cont’d):

Assist agencies in developing:Assist agencies in developing:

Statement of goals and objectivesStatement of goals and objectivesProgram plans and budget requestsProgram plans and budget requestsSystems of evaluating and reporting of program Systems of evaluating and reporting of program

performanceperformance


Overview of State GovernmentOverview of State Government Chief Fiscal Officer:Chief Fiscal Officer:

Keeps the Legislative Council and any interim Keeps the Legislative Council and any interim committees of the General Assembly informed committees of the General Assembly informed of:of:

Actual performance of these agencies as compared Actual performance of these agencies as compared to that predicted in the program budget requeststo that predicted in the program budget requests

Administer responsibilities under the program budget Administer responsibilities under the program budget provisions so that the policy decisions and budget provisions so that the policy decisions and budget determinations of the General Assembly and determinations of the General Assembly and Governor are effectively implementedGovernor are effectively implemented


Department of Finance & Administration:Department of Finance & Administration:

FunctionsFunctions

Collection of revenuesCollection of revenues Control managementControl management

WebsiteWebsite

http://www.arkansas.gov/dfa/



Arkansas Arkansas

Department of HealthDepartment of Health



Arkansas Department of Health:Arkansas Department of Health:

Mission Statement:Mission Statement: To protect and improve To protect and improve the health and well-being of all Arkansans.the health and well-being of all Arkansans.

Vision Statement:Vision Statement: Optimal health for all Optimal health for all Arkansans to achieve maximum personal, Arkansans to achieve maximum personal, economic and social impact .economic and social impact .

Website:Website:

http://www.healthy.arkansas.gov


Break TimeBreak TimeTen (10) minutesTen (10) minutes


Freedom of Information ActFreedom of Information Act(FOIA)(FOIA)

Arkansas Attorney Arkansas Attorney General’s OfficeGeneral’s Office

Dustin McDaniel, Dustin McDaniel, Attorney GeneralAttorney General


Guides to InterpretationGuides to Interpretation

Freedom of Information Handbook, Freedom of Information Handbook, (12th Edition).(12th Edition).

Watkins and Peltz, Watkins and Peltz, Arkansas Freedom of Information Act Arkansas Freedom of Information Act (4th Edition, 2004).(4th Edition, 2004).

Attorney General’s Website: Attorney General’s Website: www.arkansasag.gov


History of the FOIAHistory of the FOIA

Arkansas Freedom of Information Act Arkansas Freedom of Information Act (FOIA) initially adopted in 1967.(FOIA) initially adopted in 1967.

Codified at Arkansas Code Annotated.Codified at Arkansas Code Annotated.

25-19-101 et seq25-19-101 et seq..


History of the FOIA (cont’d)History of the FOIA (cont’d)

Arkansas Freedom of Information Act Arkansas Freedom of Information Act initially adopted in 1967 (cont’d).initially adopted in 1967 (cont’d).

Covers two broad areas:Covers two broad areas:

Public meetingsPublic meetingsPublic recordsPublic records

– Amended to specifically include “Electronic or Amended to specifically include “Electronic or Computer-Based Information or data Computer-Based Information or data compilations in any medium.”compilations in any medium.”


Legislative IntentLegislative Intent

A.C.A. A.C.A. § § 25-19-10225-19-102::

To insure that electors or their representatives To insure that electors or their representatives are fully advised of the activities and decisions are fully advised of the activities and decisions of their public officials.of their public officials.

Case law sets forth liberal interpretation rule Case law sets forth liberal interpretation rule ((Laman v. McCord, Laman v. McCord, 245 Ark. 401 (1968))245 Ark. 401 (1968))..

Exemptions to be narrowly construed Exemptions to be narrowly construed ((Bryant v. MarsBryant v. Mars, 309 Ark. 480 (1992); , 309 Ark. 480 (1992); Orsini v. Orsini v. StateState, 340 Ark. 665 (2000)), 340 Ark. 665 (2000))..


Scope of the FOIAScope of the FOIA

Requires most meetings of “governing Requires most meetings of “governing bodies” to be open to the public.bodies” to be open to the public.

Allows the public to inspect and receive Allows the public to inspect and receive copies of public records of governmental copies of public records of governmental agencies unless the law makes an agencies unless the law makes an exception for them.exception for them.


Scope of the FOIA (cont’d)Scope of the FOIA (cont’d)

Can apply to meetings and records of Can apply to meetings and records of private organizations if they receive public private organizations if they receive public funding.funding.


FOIA Does Not Require:FOIA Does Not Require: Citizen participation at meetings (just Citizen participation at meetings (just

attendance):attendance): Refer to A.C.A. Refer to A.C.A. § § 14-14-109(b), requiring county 14-14-109(b), requiring county

boards to afford citizens “a reasonable opportunity boards to afford citizens “a reasonable opportunity to participate prior to the final decision.”to participate prior to the final decision.”

Any Particular time period for record retention:Any Particular time period for record retention: Refer to A.C.A. Refer to A.C.A. §§§§ 25-18-601 to -605 concerning 25-18-601 to -605 concerning

records retention by “state agencies,” anrecords retention by “state agencies,” andd

County records retention requirements at County records retention requirements at A.C.A. A.C.A. §§§§ 13-4-301 to -308). 13-4-301 to -308).


Public MeetingsPublic Meetings

Which meetings Which meetings must be public?must be public?


Public Meetings (cont’d)Public Meetings (cont’d) A.C.A. A.C.A. § § 25-19-103(4) 25-19-103(4) defines public meetings as defines public meetings as

“meetings of any bureau, commission, or agency “meetings of any bureau, commission, or agency of the state, or any political subdivision of the of the state, or any political subdivision of the state, including municipalities and counties, state, including municipalities and counties, boards of education, and all other boards, boards of education, and all other boards, bureaus, commissions, or organizations in the bureaus, commissions, or organizations in the State of Arkansas, except grand juries, State of Arkansas, except grand juries, supported wholly or in part by public supported wholly or in part by public funds or expending public funds.”funds or expending public funds.”


Public Meetings (cont’d)Public Meetings (cont’d)

A.C.A. A.C.A. § § 25-19-106(a) 25-19-106(a) establishes the opening establishes the opening meeting requirement:meeting requirement: ““AllAll meetings, formal or informal, special or meetings, formal or informal, special or

regular” of the “governing bodies” of cities, regular” of the “governing bodies” of cities, counties, school districts, state entities, and counties, school districts, state entities, and some private entitiessome private entities

Act is triggered even if no official Act is triggered even if no official action is taken.action is taken.


Private EntitiesPrivate Entities

Private Entities can be Private Entities can be subject to the Act if . . .subject to the Act if . . .


Private Entities (cont’d)Private Entities (cont’d)

1)1) In receipt of direct public funding In receipt of direct public funding (whole or partial funding, (whole or partial funding, Sebastian Co. Chapter Sebastian Co. Chapter of of American Red Cross v. American Red Cross v. WeatherfordWeatherford, 311 Ark. , 311 Ark. 656 (1993))656 (1993)), , andand

2)2) Activities are of public concern and Activities are of public concern and intertwined with those of the intertwined with those of the government.government.


Private Entities (cont’d)Private Entities (cont’d)

2)2) Activities are of . . . Activities are of . . . Indirect public support not sufficient to trigger Indirect public support not sufficient to trigger

the Act.the Act.

Partial funding of discrete activity requires Partial funding of discrete activity requires openness only as to activity funded openness only as to activity funded ((City of City of Fayetteville v. EdmarkFayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 , 304 Ark. 179, 801 S.W.2d 275 (1990))(1990))..


Open Public Meetings Open Public Meetings A.C.A. A.C.A. § § 25-19-106(a)25-19-106(a)

Only applies to “Governing Bodies” with Only applies to “Governing Bodies” with decision-making power.decision-making power.

Subcommittees of governing bodies are Subcommittees of governing bodies are covered, as are any other committees with covered, as are any other committees with delegated power to decide delegated power to decide ((Baxter County Baxter County Newspaper, Inc., v. Medical Staff of Baxter General Newspaper, Inc., v. Medical Staff of Baxter General HospitalHospital, 273 Ark. 511 (622 S.W.2d 495 (1981) and , 273 Ark. 511 (622 S.W.2d 495 (1981) and Ark. Ark. Gazette Co. v. Pickens, Gazette Co. v. Pickens, 258 Ark. 69 (1975) & Op. 258 Ark. 69 (1975) & Op. 2002-092)2002-092)..


Open Public Meetings (cont’d) Open Public Meetings (cont’d)

A.C.A. A.C.A. § § 25-19-106(a)25-19-106(a) Does not apply to staff meetings Does not apply to staff meetings ((Nat’l. Park Nat’l. Park

Med. Ctr. v. Ark. DHSMed. Ctr. v. Ark. DHS, 322 Ark. 595 (1995), 322 Ark. 595 (1995).. Or to advisory bodies unless de facto Or to advisory bodies unless de facto

governing body; governing body; Op. 2006-059 Op. 2006-059 (but records (but records are subject).are subject).


Open Public Meetings (cont’d) Open Public Meetings (cont’d)

A.C.A. A.C.A. § § 25-19-106(a)25-19-106(a) Advisory committees composed partially of Advisory committees composed partially of

board members might be covered board members might be covered (Op. 2000-(Op. 2000-260)260)..

A specific statute may govern particular A specific statute may govern particular meetings.meetings.

Records may be open but meetings Records may be open but meetings closed, if not a “governing body.”closed, if not a “governing body.”


How many members make a How many members make a meeting?meeting?

Quorum not required Quorum not required ((El Dorado Mayor v. El El Dorado Mayor v. El Dorado BroadcastingDorado Broadcasting, 260 Ark. 821 (1976), 260 Ark. 821 (1976)..

Three (3) members to discuss government Three (3) members to discuss government business, must comply.business, must comply.


How many members make a How many members make a meeting? (cont’d)meeting? (cont’d)

Two (2) members can be a meeting Two (2) members can be a meeting depending on the facts; “polling” or pre-depending on the facts; “polling” or pre-meeting conferencing before a vote is meeting conferencing before a vote is covered covered Harris v. City of Fort Smith Harris v. City of Fort Smith (197 (197

S.W.3d 461 (2004))S.W.3d 461 (2004))..


How many members make a How many members make a meeting? (cont’d)meeting? (cont’d)

Telephone conferences are permissible if Telephone conferences are permissible if proper procedures are followed and notice proper procedures are followed and notice is given is given ((Rehab Hosp. Services Corp. v. Delta-Hills Rehab Hosp. Services Corp. v. Delta-Hills Health Systems AgencyHealth Systems Agency, 284 Ark. 397 (1985), 284 Ark. 397 (1985)..

There is a right to know how officials vote – There is a right to know how officials vote – no secret ballots no secret ballots ((Depoyster v.Cole, Depoyster v.Cole, 298 Ark 203 298 Ark 203 (1984)(1984)..


Social Gatherings and Social Gatherings and ConferencesConferences

What is considered What is considered a “meeting?”a “meeting?”


Social Gatherings and Social Gatherings and Conferences (cont’d)Conferences (cont’d)

Not if any discussion of government Not if any discussion of government business at the social gathering is business at the social gathering is incidental and intermittent incidental and intermittent (Op.95-020)(Op.95-020)..

Maybe not if the governing body has no Maybe not if the governing body has no control over the conference, function, or control over the conference, function, or proceeding proceeding (Op. 94-131)(Op. 94-131)..


Can E-mail be a meeting? Can E-mail be a meeting? (Op. 2005-166)(Op. 2005-166)

Electronically stored e-mail messages are Electronically stored e-mail messages are public records and “ordinarily” do not public records and “ordinarily” do not evidence a meeting – generally analogous evidence a meeting – generally analogous instead to written correspondenceinstead to written correspondence..

But possibility exists for violating the FOIA But possibility exists for violating the FOIA with “sequential or circular series of with “sequential or circular series of communications.”communications.”Harris v. City of Fort SmithHarris v. City of Fort Smith, 197 S.W.3d 461 (2004), 197 S.W.3d 461 (2004)


Other states distinguish mere informational Other states distinguish mere informational correspondence or “passive receipt of e-correspondence or “passive receipt of e-mail” from communications designed to mail” from communications designed to elicit substantive discussion.elicit substantive discussion.

Factual question in each instance as to Factual question in each instance as to whether violation occurred. Consider whether violation occurred. Consider substance of the e-mail and presence or substance of the e-mail and presence or absence of interaction among the absence of interaction among the governing body members. governing body members.

Can E-mail be a meeting? Can E-mail be a meeting? (Op. 2005-166) cont’d(Op. 2005-166) cont’d


Open Public Meetings (Notice)Open Public Meetings (Notice)A.C.A. A.C.A. § § 25-19-106(b)(1)25-19-106(b)(1)

The time and place of The time and place of each regular meeting each regular meeting shall be furnished to shall be furnished to anyone who requests anyone who requests the information.the information.


Open Public Meetings (Notice) Open Public Meetings (Notice) cont’dcont’d

No one entitled to notice unless requested No one entitled to notice unless requested ((Elmore v. BurkeElmore v. Burke, 337 Ark. 235 (1999), 337 Ark. 235 (1999)..

No particular form of notice required, but must be No particular form of notice required, but must be calculated to give actual notice calculated to give actual notice (Op. 96-074)(Op. 96-074)..

Exception:Exception: School boards must publish notice of School boards must publish notice of regular meetings on web (10 days prior to regular regular meetings on web (10 days prior to regular meeting; 24 hours prior to a rescheduled regular meeting; 24 hours prior to a rescheduled regular meeting, A.C.A. meeting, A.C.A. § 6-13-619§ 6-13-619).).

A.C.A. A.C.A. § § 25-19-106(b)(1)25-19-106(b)(1)


In the event of In the event of emergencyemergency oror special meetingsspecial meetings, , the person calling the meeting shall notify the the person calling the meeting shall notify the representatives of the newspapers, radio representatives of the newspapers, radio stations, and television stations, if any, located in stations, and television stations, if any, located in the county in which the meeting is to be held and the county in which the meeting is to be held and any news media located elsewhere which cover any news media located elsewhere which cover regular meetings of the governing body . . .regular meetings of the governing body . . .


A.C.A. § 25-19-106(b)(2)


. . . . . . and which have requested to be so and which have requested to be so notifiednotified of the emergency or special meetings, of the emergency or special meetings, of the time, place, and date of the meeting. of the time, place, and date of the meeting.

Notification shall be made at least two (2) hours Notification shall be made at least two (2) hours before the meeting takes place in order that the before the meeting takes place in order that the public shall have representatives at the public shall have representatives at the meeting.meeting.


A.C.A. § 25-19-106(b)(2)


Exceptions to Open MeetingsExceptions to Open Meetings(Private Meetings)(Private Meetings)

Executive sessions for Executive sessions for certain personnel issues.certain personnel issues. Only for the purpose of Only for the purpose of

considering employment, considering employment, appointment, promotion, appointment, promotion, demotion, disciplining or demotion, disciplining or resignation of a public resignation of a public officer or employee.officer or employee.


Exceptions to Open MeetingsExceptions to Open Meetings(Private Meetings) cont’d(Private Meetings) cont’d

Executive sessions of State Executive sessions of State Boards to prepare licensure test Boards to prepare licensure test questions and administer the questions and administer the tests. tests. (2001 law)(2001 law)..

Executive session for purposes Executive session for purposes of considering, evaluating or of considering, evaluating or discussing matters pertaining to discussing matters pertaining to public water system security public water system security (2003 law, amended 2007; July 1, (2003 law, amended 2007; July 1, 2009 sunset)2009 sunset)..


Executive SessionsExecutive Sessions

The provision for The provision for executive sessions executive sessions is is permissivpermissive.e.

Exception:Exception: A.C.A. A.C.A. § §

14-14-10914-14-109 authorizes authorizes the officer or the officer or employee to request employee to request an open meeting.an open meeting.


Executive Sessions (cont’d)Executive Sessions (cont’d)

A governing body may vote to hold an A governing body may vote to hold an executive session on personnel matters, executive session on personnel matters, but is not required to do so.but is not required to do so.

A governing body may meet in executive A governing body may meet in executive session to screen and review applicants for session to screen and review applicants for employment (but must consider individual employment (but must consider individual applicants, not policies. applicants, not policies. Op. 93-403Op. 93-403).).


Executive Sessions (cont’d)Executive Sessions (cont’d) Notice requirements still apply.Notice requirements still apply.

Must announce specific purpose before Must announce specific purpose before going in.going in.

Who may not be present?Who may not be present?

Not attorney Not attorney ((Laman v. McCordLaman v. McCord, 245 Ark. 401 , 245 Ark. 401 (1968))(1968))..

No one other than members of the No one other than members of the governing body has a right to attend.governing body has a right to attend.



Who may be Present?Who may be Present?

Only the governing body and the top Only the governing body and the top administrator, immediate supervisor, and administrator, immediate supervisor, and employee may be present in executive employee may be present in executive session; session; oror person being interviewed for top person being interviewed for top administrative position.administrative position.



Cannot meet in executive session for the Cannot meet in executive session for the purpose of conducting an evidentiary purpose of conducting an evidentiary hearing hearing ((Ark. State Police Commission v. DavidsonArk. State Police Commission v. Davidson, ,

253 Ark. 1090 (1973))253 Ark. 1090 (1973));; but can hear testimony but can hear testimony from those persons who are permitted to from those persons who are permitted to attend. attend. Op. 97-130Op. 97-130..

Must vote in public afterward or action Must vote in public afterward or action is voidis void..


Executive Sessions (cont’d)Executive Sessions (cont’d) Other specific state laws may allow private Other specific state laws may allow private

meetings, meetings, e.ge.g., ., A.C.A.A.C.A.§§ 6-17-208 6-17-208 (school board (school board hearing on employee grievance to be “open or hearing on employee grievance to be “open or closed at the discretion of the employee.”)closed at the discretion of the employee.”)

A.C.A. A.C.A. §§ 6-18-507 6-18-507 (school board meeting on a (school board meeting on a student’s suspension or expulsion to be held in student’s suspension or expulsion to be held in executive session if requested by parent or executive session if requested by parent or guardian). guardian). A.C.A. A.C.A. § 6-17-1509 § 6-17-1509 (Teacher Fair (Teacher Fair Dismissal Act hearings are private Dismissal Act hearings are private unlessunless teacher or board requests public).teacher or board requests public).


Illegal meetingsIllegal meetings

Action taken at an illegal meeting will not Action taken at an illegal meeting will not be invalidated unless:be invalidated unless:

Plaintiff has given the body a chance to hold Plaintiff has given the body a chance to hold a meeting that conforms.a meeting that conforms.

Remedy is sought to vindicate public as Remedy is sought to vindicate public as opposed to private interest.opposed to private interest.


Illegal meetings (cont’d)Illegal meetings (cont’d)

Action taken at an illegal meeting will not Action taken at an illegal meeting will not be invalidated unless:be invalidated unless:

The FOIA violation was substantial, andThe FOIA violation was substantial, and

The defendant knowingly violated the Act. The defendant knowingly violated the Act.

Rehab Hospital Services Corp. v. Delta-Hills Health Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency,Systems Agency, 284 Ark. 397 (1985). 284 Ark. 397 (1985).


Public Records under the FOIAPublic Records under the FOIA

DefinitionDefinition

AccessAccess

Making FOIA Making FOIA requestsrequests

ComplianceCompliance

ExemptionsExemptions

Penalties and Penalties and EnforcementEnforcement

Meetings and Meetings and RecordsRecords


Public RecordsPublic Records

Definition of Public Definition of Public RecordsRecords


Public RecordsPublic Records

A.C.A. 25-19-103(5)(A)A.C.A. 25-19-103(5)(A) ““writings, recorded sounds, films, tapes, writings, recorded sounds, films, tapes,

electronic or computer-based information or electronic or computer-based information or data compilations in any medium required by data compilations in any medium required by law to be kept or otherwise kept” and which law to be kept or otherwise kept” and which “constitute a record of the performance or lack “constitute a record of the performance or lack of performance of official functions . . .”of performance of official functions . . .”

ExcludesExcludes software acquired by purchase, software acquired by purchase, lease or license.lease or license.


Public Records (cont’d)Public Records (cont’d) All records maintained in public offices or All records maintained in public offices or

by public employees within the scope of by public employees within the scope of their employment are presumed to be their employment are presumed to be public records. public records. A.C.A. 25-19-103(5)(A).A.C.A. 25-19-103(5)(A).

The presumption can be rebutted if the The presumption can be rebutted if the record does not reflect the “performance record does not reflect the “performance or lack of performance of official or lack of performance of official functions.” functions.” Op. 2005-095.Op. 2005-095.


Public Records (cont’d)Public Records (cont’d) Whether a particular record is a “public Whether a particular record is a “public

record” depends upon its content. record” depends upon its content. Pulaski Pulaski County v. Arkansas Democrat-GazetteCounty v. Arkansas Democrat-Gazette (Ark. Sup. Ct. 07-669, July 20, 2007).(Ark. Sup. Ct. 07-669, July 20, 2007).

If challenged, a court must make an “in If challenged, a court must make an “in camera” or private “in chambers” review to camera” or private “in chambers” review to determine whether the records are “public determine whether the records are “public records.” records.” IdId..


Access to Public RecordsAccess to Public RecordsA.C.A. A.C.A. §§ 25-19-10525-19-105

Unless exempt:Unless exempt:

““. . . . . . All public records All public records shall be open to shall be open to inspection and copying by inspection and copying by any citizen during regular any citizen during regular business hours . . .”business hours . . .”


ScopeScope

The FOIA covers “records” not The FOIA covers “records” not “information.”“information.”

An agency does not need to create new An agency does not need to create new records to comply.records to comply.

If records are part public and part exempt, If records are part public and part exempt, then redact exempt material and provide then redact exempt material and provide the rest.the rest.


Scope (cont’d)Scope (cont’d)

E-mails or letters sent to private e-mail E-mails or letters sent to private e-mail addresses or private residences of public addresses or private residences of public officials are subject to FOIA if they involve officials are subject to FOIA if they involve the public’s business. the public’s business.

Bradford v. Director, ESD, Bradford v. Director, ESD, 83 Ark. App. 332, 128 83 Ark. App. 332, 128 S.W.3d 20 (2003); Opinion 2000-220.S.W.3d 20 (2003); Opinion 2000-220.

Otherwise the FOIA could be Otherwise the FOIA could be circumvented.circumvented.


Scope (cont’d)Scope (cont’d)

A public entity can be the custodian of A public entity can be the custodian of public records even if it does not have public records even if it does not have physical possession of them, as long as it physical possession of them, as long as it has “administrative control” of the records. has “administrative control” of the records.

A.C.A. 25-19-103(1)(A). A.C.A. 25-19-103(1)(A). Fox v. PerroniFox v. Perroni, 358 Ark. 251 , 358 Ark. 251 (2004).(2004).


FOIA RequestsFOIA Requests

Only “citizens” may request FOIAs.Only “citizens” may request FOIAs.

Incarcerated felons are denied Incarcerated felons are denied access to Department of Correction access to Department of Correction and Department of Community and Department of Community Correction records.Correction records.


FOIA Requests – Mode & FOIA Requests – Mode & SpecificitySpecificity

Requests may be made in person, by Requests may be made in person, by telephone, mail, facsimile, electronic mail, telephone, mail, facsimile, electronic mail, or any other electronic means provided by or any other electronic means provided by the custodian.the custodian.

The request shall be sufficiently specific to The request shall be sufficiently specific to enable the custodian to locate the records enable the custodian to locate the records with reasonable effort.with reasonable effort.


FOIAFOIA

Citizens may request Citizens may request copies in “any medium copies in “any medium in which the record is in which the record is readily available or in readily available or in any format to which it is any format to which it is readily convertible” with readily convertible” with existing software.existing software.


FOIA (cont’d)FOIA (cont’d)

Custodian is still not Custodian is still not required to compile required to compile information or create a information or create a record in response to a record in response to a request.request.


FOIA ComplianceFOIA Compliance

Requires immediate access unless Requires immediate access unless records are in “active use or storage.”records are in “active use or storage.”

If If inin active use or storage, custodian must active use or storage, custodian must certify that fact in writing and set time certify that fact in writing and set time within three (3) working days to provide within three (3) working days to provide the records.the records.


FOIA Compliance (cont’d)FOIA Compliance (cont’d)

Determine to what extent records are Determine to what extent records are public or non-public; redact exempt public or non-public; redact exempt portions; and provide the public records.portions; and provide the public records.

An agency that is not the custodian of An agency that is not the custodian of requested records should identify the requested records should identify the proper custodian, if known or readily proper custodian, if known or readily ascertainable.ascertainable.


SEGREGATION OF EXEMPT SEGREGATION OF EXEMPT INFORMATIONINFORMATION

““No request to inspect, copy, or obtain No request to inspect, copy, or obtain copies of public records shall be denied copies of public records shall be denied on the ground that information exempt on the ground that information exempt from disclosure is commingled with from disclosure is commingled with nonexempt information.”nonexempt information.”


SEGREGATION OF EXEMPT SEGREGATION OF EXEMPT INFORMATION (cont’d)INFORMATION (cont’d)

““Any reasonably segregable portion of a Any reasonably segregable portion of a record shall be provided after deletion of record shall be provided after deletion of the exempt information.”the exempt information.”

Computer hardware and software acquired Computer hardware and software acquired after July 1, 2001 shall not impede public after July 1, 2001 shall not impede public access to records in electronic form.access to records in electronic form.

A.C.A. A.C.A. § 25-19-105(g).§ 25-19-105(g).



““No request to inspect, copy, or obtain No request to inspect, copy, or obtain copies of public records shall be denied copies of public records shall be denied on the ground that information exempt on the ground that information exempt from disclosure is commingled with from disclosure is commingled with nonexempt information.”nonexempt information.”



““Any reasonably segregable portion of a Any reasonably segregable portion of a record shall be provided after deletion of record shall be provided after deletion of the exempt information.”the exempt information.”

Computer hardware and software acquired Computer hardware and software acquired after July 1, 2001 shall not impede public after July 1, 2001 shall not impede public access to records in electronic form.access to records in electronic form.

A.C.A. A.C.A. § 25-19-105(g).§ 25-19-105(g).



““The amount of information deleted shall The amount of information deleted shall be indicated on the released portion of the be indicated on the released portion of the record and, if technically feasible, at the record and, if technically feasible, at the place in the record where the deletion was place in the record where the deletion was made.”made.”

Custodian shall bear the cost of separating Custodian shall bear the cost of separating exempt from nonexempt information.exempt from nonexempt information.


COPIESCOPIES

A citizen may:A citizen may:

““inspect, copy or inspect, copy or receivereceive copiescopies of of public records.”public records.”


COPIES (Cont’d)COPIES (Cont’d)

““Upon request and Upon request and payment of a fee, the payment of a fee, the custodian shall furnish custodian shall furnish copies of public records copies of public records if the custodian has the if the custodian has the necessary duplicating necessary duplicating equipment.”equipment.”


COPY CHARGESCOPY CHARGES

Any fee for copies Any fee for copies may not exceed may not exceed the actual costs of the actual costs of reproductionreproduction


Copy Charges (cont’d)Copy Charges (cont’d) Any fee for copies may not exceed the Any fee for copies may not exceed the

actual costs of reproduction.actual costs of reproduction.

Custodian may charge actual costs of Custodian may charge actual costs of mailing or transmitting record by mailing or transmitting record by electronic means.electronic means.

Fee may not include existing agency Fee may not include existing agency personnel time for searching, retrieving, personnel time for searching, retrieving, reviewing or copying records.reviewing or copying records.


Copy Charges (cont’d)Copy Charges (cont’d)

Copies may be furnished without charge Copies may be furnished without charge or at reduced cost if the custodian or at reduced cost if the custodian determines that the request is primarily determines that the request is primarily noncommercial or that fee reduction is in noncommercial or that fee reduction is in the public interest.the public interest.



If the estimated fee exceeds $25, the If the estimated fee exceeds $25, the custodian may require the requester to custodian may require the requester to pay that fee in advance.pay that fee in advance.

The custodian shall provide an itemized The custodian shall provide an itemized breakdown of charges.breakdown of charges.



Special statutes may authorize higher copy Special statutes may authorize higher copy charges, for example:charges, for example:

Accident reports are $10.00 plus $1.50 per Accident reports are $10.00 plus $1.50 per page for supplemental reports.page for supplemental reports.

A.C.A. A.C.A. § § 27-53-210, as amended by Act 2158 of 2005.27-53-210, as amended by Act 2158 of 2005.


Copy Charges (con’t)Copy Charges (con’t)

Special statutes may authorize higher Special statutes may authorize higher copy charges, for example:copy charges, for example:

Voter registration lists on computer disk or Voter registration lists on computer disk or tape from $10 to $50, depending on the tape from $10 to $50, depending on the number of registered voters included. Cost of number of registered voters included. Cost of a printed list may be no more than two cents a printed list may be no more than two cents ($0.02) per name and address.($0.02) per name and address.

A.C.A. A.C.A. § § 7-5-109.7-5-109.


Exemptions to Access in the Exemptions to Access in the FOIAFOIA

State Income Tax RecordsState Income Tax Records Individual and Corporate Income Tax ReturnsIndividual and Corporate Income Tax Returns Any State Income Tax RecordAny State Income Tax Record Employee Payroll Withholding Employee Payroll Withholding

Medical RecordsMedical Records Records containing information relating Records containing information relating

to the treatment or diagnosis of a to the treatment or diagnosis of a medical conditionmedical condition


Exemptions to Access in the Exemptions to Access in the FOIA (cont’d)FOIA (cont’d)

Adoption Records.Adoption Records. Education Records, as defined in federal Education Records, as defined in federal

law, “Family and Educational Right to law, “Family and Educational Right to Privacy Act.” Privacy Act.”

20 USC 20 USC § § 1232g1232g.. Certain Historical Preservation and Certain Historical Preservation and

Archeological Survey Records.Archeological Survey Records.



Grand Jury minutes.Grand Jury minutes. Unpublished drafts of judicial & quasi-Unpublished drafts of judicial & quasi-

judicial opinions.judicial opinions. Unpublished memoranda, working papers Unpublished memoranda, working papers

and correspondence of certain state and correspondence of certain state officials – Governor, Attorney General, officials – Governor, Attorney General, General Assembly members and General Assembly members and appellate judges.appellate judges.



Documents protected from disclosure by Documents protected from disclosure by order or rule of court. order or rule of court.

SeeSee alsoalso Arkansas Supreme Court, Administrative Arkansas Supreme Court, Administrative Order #19.Order #19.


Exemptions to Access Exemptions to Access (Cont’d(Cont’d))

Files that would give advantage to Files that would give advantage to competitors or bidders.competitors or bidders.

Certain AEDC Records.Certain AEDC Records. Identities of current undercover officers:Identities of current undercover officers:

Identified as undercover at State Minimum Identified as undercover at State Minimum Standards Office.Standards Office.



Records containing: Records containing:

Measures,Measures, Procedures,Procedures, Instructions, orInstructions, or Related data used to cause a computer . . .Related data used to cause a computer . . .



. . . to perform security functions, including but . . . to perform security functions, including but not limited to:not limited to:

Passwords Passwords Personal identification numbers, and Personal identification numbers, and Other means of preventing access to computers or Other means of preventing access to computers or

any data residing therein.any data residing therein.



Non-elected state, county and municipal Non-elected state, county and municipal employees’ home addresses are exempt.employees’ home addresses are exempt.

Notwithstanding the exemption, the Notwithstanding the exemption, the custodian shall “verify”:custodian shall “verify”: An employee’s city or county of residenceAn employee’s city or county of residence Or “address of record” upon request.Or “address of record” upon request.



Home addresses of non-elected school Home addresses of non-elected school district and other employees subject to the district and other employees subject to the FOIA may be exempt under the FOIA may be exempt under the 25-19-105(b)25-19-105(b)

(12) (12) exemption for personnel records. exemption for personnel records. SeeSee

Stilley v. McBride, Stilley v. McBride, 332 Ark. 306 (1998)332 Ark. 306 (1998)..



Examinations for Licensure:Examinations for Licensure:

State agency materials, information, State agency materials, information, examinations, and answers … utilized by examinations, and answers … utilized by boards and commissions for … testing boards and commissions for … testing applicants for licensure …applicants for licensure …



Military Discharge Records Military Discharge Records (DD Form 214)(DD Form 214).. A.C.A. 25-19-105 A.C.A. 25-19-105 exempts “Military Service exempts “Military Service

discharge records or DD Form 214 for discharge records or DD Form 214 for veterans discharged from service less than veterans discharged from service less than seventy (70) years from the current date and seventy (70) years from the current date and filed with the county recorder as provided filed with the county recorder as provided under under 14-2-10214-2-102.”.”



Reports, analyses, investigations, and any Reports, analyses, investigations, and any other records containing information that, if other records containing information that, if disclosed, might jeopardize or compromise disclosed, might jeopardize or compromise efforts to secure and protect the public efforts to secure and protect the public water system. water system.

A.C.A. 25-19-105(18)(A) & (B).A.C.A. 25-19-105(18)(A) & (B).


More ExemptionsMore Exemptions

Vulnerability Assessments submitted by a Vulnerability Assessments submitted by a public water system on or before June 30, public water system on or before June 30, 2004 to the EPA for ten (10) years after 2004 to the EPA for ten (10) years after submission. submission.

25-19-105(b)(16)25-19-105(b)(16)..


More Exemptions (cont’d)More Exemptions (cont’d)

Records relating to DHS risk or security Records relating to DHS risk or security assessments or regarding compliance with assessments or regarding compliance with “HIPAA,” the Federal Health Insurance “HIPAA,” the Federal Health Insurance Portability and Accountability Act. Portability and Accountability Act.

Act 726 of 2007Act 726 of 2007..


Exemptions – Exemptions – Law Enforcement InvestigationsLaw Enforcement Investigations

““Undisclosed investigations Undisclosed investigations by law by law enforcement agencies of suspected enforcement agencies of suspected criminal activity.”criminal activity.” Applies only when criminal investigation is Applies only when criminal investigation is

“ongoing.” “ongoing.”

Martin v. MusteenMartin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 , 303 Ark. 656, 799 S.W.2d 540 (1990).(1990).


Exemptions – Exemptions – Law Enforcement Investigations Law Enforcement Investigations

(cont’d)(cont’d)

Records must be sufficiently investigative to Records must be sufficiently investigative to qualify. Arrest reports, jail logs, and shift qualify. Arrest reports, jail logs, and shift sheets maintained by police department do sheets maintained by police department do not qualify. not qualify.

Hengel v. City of Pine Bluff, Hengel v. City of Pine Bluff, 307 Ark. 457, 821 307 Ark. 457, 821 S.W.2d 761 (1991).S.W.2d 761 (1991).




““Internal work product” containing details of Internal work product” containing details of an investigation such as officers’ speculations an investigation such as officers’ speculations and views on suspect’s guilt, credibility of and views on suspect’s guilt, credibility of witnesses, informant statements, ballistics witnesses, informant statements, ballistics reports or laboratory tests are included. reports or laboratory tests are included. Id.Id.




Court must conduct in camera review before Court must conduct in camera review before determining exemption. determining exemption. Johnson v. Stodola, Johnson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994).316 Ark. 423, 872 S.W.2d 374 (1994).


Exemptions (con’t)Exemptions (con’t)

When is an investigation “When is an investigation “closedclosed?”?”

No bright line rule .No bright line rule .

Op. 2002-303.Op. 2002-303.

Has been held no longer ongoing when Has been held no longer ongoing when closed by “closed by “administrative actionadministrative action.” .”

McCambridge v. City of Little Rock, McCambridge v. City of Little Rock, 298 Ark. 298 Ark. 219, 766 S.W.2d 909 (1989).219, 766 S.W.2d 909 (1989).


Exemptions (con’t)Exemptions (con’t)

When is an investigation “When is an investigation “closedclosed?”?”

Can remain ongoing even though charges are Can remain ongoing even though charges are filed against one of several suspects. filed against one of several suspects.

Martin v. Musteen, Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 303 Ark. 656, 799 S.W.2d 540 (1990).(1990).

Ultimately a question of fact for court. Ultimately a question of fact for court. Id.Id.


Homeland SecurityHomeland Security

The “Homeland The “Homeland Security Security

Information Act”Information Act”


Homeland Security (cont’d) Homeland Security (cont’d) A.C.A. 12-75-subch.1 (note) (Act 1366 of 2003) A.C.A. 12-75-subch.1 (note) (Act 1366 of 2003)

The “Homeland Security Information Act” The “Homeland Security Information Act” shields certain terrorism threat shields certain terrorism threat assessments, plans, operational policies assessments, plans, operational policies or procedures, and training developed or or procedures, and training developed or maintained by “emergency service maintained by “emergency service agencies.”agencies.”


Homeland Security (cont’d) Homeland Security (cont’d) A.C.A. 12-75-subch.1 (note) (Act 1366 of 2003) A.C.A. 12-75-subch.1 (note) (Act 1366 of 2003)

Also shields certain investigative records Also shields certain investigative records until after “until after “final adjudicationfinal adjudication.”.”

And records received from the federal And records received from the federal government, other states and cities if government, other states and cities if shielded in those jurisdictions.shielded in those jurisdictions.


Personnel RecordsPersonnel Records

Are generally OPEN, except “to the extent Are generally OPEN, except “to the extent disclosure would constitute a clearly disclosure would constitute a clearly unwarranted invasion of privacy.”unwarranted invasion of privacy.”

Exemption applies to both current and Exemption applies to both current and former employees:former employees:

What is clearly unwarranted?What is clearly unwarranted? Arkansas Supreme Court applies a balancing Arkansas Supreme Court applies a balancing

test.test.


Personnel Records (cont’d)Personnel Records (cont’d)

References:References:

Young v. RiceYoung v. Rice, 308 Ark. 593, 826 S.W.2d , 308 Ark. 593, 826 S.W.2d 252 (1992)252 (1992)

Stilley v. McBrideStilley v. McBride, 332 Ark. 306, 965 S.W.2d , 332 Ark. 306, 965 S.W.2d 125 (1998)125 (1998)


Personnel Records (cont’d)Personnel Records (cont’d)

Commonly Exempted Items:Commonly Exempted Items: Social Security numbersSocial Security numbers Medical informationMedical information Insurance, pension & benefit informationInsurance, pension & benefit information GarnishmentsGarnishments Educational transcriptsEducational transcripts Home phone numbers and addressesHome phone numbers and addresses Date of birthDate of birth Anything else which would cause a clearly Anything else which would cause a clearly

unwarranted invasion of privacyunwarranted invasion of privacy


Personnel Records (cont’d)Personnel Records (cont’d) Common Items Open to Inspection:Common Items Open to Inspection:

NameName Salary informationSalary information ContractsContracts Employment Employment

applicationsapplications ResumesResumes

Educational Educational backgroundbackground

QualificationsQualifications Leave RecordsLeave Records Change of status Change of status

recordsrecords


Employee Evaluation or Employee Evaluation or Job Performance RecordsJob Performance Records

Includes formal evaluations, or any Includes formal evaluations, or any document created by or at document created by or at behestbehest of a of a supervisor to detail job performance.supervisor to detail job performance.

Behest [bih-hest]:Behest [bih-hest]:

- noun- noun

1. a command or directive.1. a command or directive.

2. an earnest or strongly worded request.2. an earnest or strongly worded request.


Employee Evaluation or Employee Evaluation or Job Performance Records Job Performance Records

(cont’d)(cont’d) Are generally CLOSED, unless there has been a Are generally CLOSED, unless there has been a

ffinal administrative resolution of:inal administrative resolution of:

Any suspension or termination proceeding, whereAny suspension or termination proceeding, whereThe records form a basis for the decision to The records form a basis for the decision to

suspend or terminate, andsuspend or terminate, andThere is a compelling public interest in There is a compelling public interest in

disclosure.disclosure.


Personnel and Evaluation Personnel and Evaluation RecordsRecords

Each employee has Each employee has a right to see his/her a right to see his/her own personnel or own personnel or evaluation records evaluation records despite these despite these exemptions.exemptions.


Personnel and Evaluation Personnel and Evaluation Records ComplianceRecords Compliance

Notice Requirements:Notice Requirements:

Notify employee and requester within 24 hours of Notify employee and requester within 24 hours of the agency decision.the agency decision.

Overnight mail notice is required if other notice Overnight mail notice is required if other notice fails.fails.

The requester, custodian or subject may request The requester, custodian or subject may request an opinion from the Attorney General.an opinion from the Attorney General.

Redact any exempt information and Redact any exempt information and provide the records.provide the records.


Exemptions Not Contained in Exemptions Not Contained in the FOIAthe FOIA

CAUTION!CAUTION!

CAUTION!CAUTION!

CAUTION!CAUTION!


Exemptions Not Contained in Exemptions Not Contained in the FOIA (cont’d)the FOIA (cont’d)

Exemptions in other State Statutes.Exemptions in other State Statutes.

Exemptions in federal law.Exemptions in federal law.

Constitutional right to privacyConstitutional right to privacy

McCambridge v. City of Little RockMcCambridge v. City of Little Rock, 298 Ark. 219, 766 , 298 Ark. 219, 766 S.W.2d 909 (1989)S.W.2d 909 (1989)


Penalties and EnforcementPenalties and Enforcement

A.C.A. 25-19-104.A.C.A. 25-19-104.

Criminal PenaltyCriminal Penalty

Negligent violation is a Negligent violation is a Class “C” misdemeanor.Class “C” misdemeanor.

See Act 1994 of 2005, Sec. See Act 1994 of 2005, Sec. 413.413.


Penalties and EnforcementPenalties and Enforcement(cont’d)(cont’d)

A.C.A. 25-19-104 (Criminal Penalty)A.C.A. 25-19-104 (Criminal Penalty)

Former specific language authorizing public Former specific language authorizing public service or education or both repealed. service or education or both repealed.

Act 1994 of 2005, Sec. 413Act 1994 of 2005, Sec. 413


Penalties and EnforcementPenalties and Enforcement(cont’d)(cont’d)

A.C.A. 25-19-107.A.C.A. 25-19-107.

Civil Judicial EnforcementCivil Judicial Enforcement

Any citizen denied their Any citizen denied their FOIA rights may appeal FOIA rights may appeal to circuit court.to circuit court.


Attorneys’ Fees May be Attorneys’ Fees May be AwardedAwarded

Against a defendant where the plaintiff Against a defendant where the plaintiff substantially prevails unless the position of substantially prevails unless the position of the defendant was substantially justified, the defendant was substantially justified, or other circumstances would make an or other circumstances would make an award unjust.award unjust.

Against a plaintiff where the defendant Against a plaintiff where the defendant substantially prevails only if the action was substantially prevails only if the action was initiated primarily for frivolous or initiated primarily for frivolous or dilatory purposes.dilatory purposes.


Attorneys’ Fees May be Attorneys’ Fees May be AwardedAwarded

No attorneys’ fees may be awarded No attorneys’ fees may be awarded against the State or any of its departments against the State or any of its departments or agencies. or agencies.

Sovereign immunity concernsSovereign immunity concerns


Questions?Questions?Call us Anytime!Call us Anytime!

Arkansas Attorney General’s Arkansas Attorney General’s OfficeOffice

Opinions DepartmentOpinions Department

501-682-5086501-682-5086


It’s The LawIt’s The Law

InterpretationsInterpretations


The Laws & InterpretationsThe Laws & Interpretations Arkansas State government does not Arkansas State government does not

discriminate on the basis of race, creed, discriminate on the basis of race, creed, color, sex, age, national origin, religion or color, sex, age, national origin, religion or disability. disability.

The State’s Affirmative Action goals dictate The State’s Affirmative Action goals dictate that all citizens have equal access and that all citizens have equal access and opportunity for employment in Arkansas opportunity for employment in Arkansas State government.State government.


Equal EmploymentEqual Employment Opportunity Commission Opportunity Commission

(EEOC)(EEOC) The EEOC is responsible for coordinating The EEOC is responsible for coordinating

the Federal government's employment the Federal government's employment non-discrimination effort. non-discrimination effort.


Equal EmploymentEqual Employment Opportunity Commission Opportunity Commission

(EEOC) cont’d(EEOC) cont’d The EEOC is required to review The EEOC is required to review

regulations and other EEO policy-related regulations and other EEO policy-related documents before they are issued to documents before they are issued to ensure consistency in the Federal ensure consistency in the Federal government's effort to combat government's effort to combat workplace discrimination. workplace discrimination.


THE PENALTIESTHE PENALTIES

MONETARY LOSS.MONETARY LOSS.

ADMINISTRATIVEADMINISTRATIVEDISCRETION LOSS.DISCRETION LOSS.

ORGANIZATIONAL ORGANIZATIONAL TRAUMA.TRAUMA.


Know the PoliciesKnow the Policies

Ask questions.Ask questions.

Get assistance when needed from the Get assistance when needed from the proper resources.proper resources.


Federal Equal Employment Federal Equal Employment Opportunity (EEO) LawsOpportunity (EEO) Laws

Title VII of the Civil Rights Act of 1964:Title VII of the Civil Rights Act of 1964:(Title VII) - Race, color, religion, sex, or national origin(Title VII) - Race, color, religion, sex, or national origin

Equal Pay Act of 1963:Equal Pay Act of 1963:(EPA)--Sex-based wage discrimination (EPA)--Sex-based wage discrimination

Age Discrimination in Employment Act of Age Discrimination in Employment Act of 1967:1967:(ADEA), Individuals 40 years of age or older(ADEA), Individuals 40 years of age or older


Federal Equal Employment Federal Equal Employment Opportunity (EEO) Laws Opportunity (EEO) Laws


Americans with Disabilities Act of 1990Americans with Disabilities Act of 1990(ADA)--Qualified individuals with disabilities (ADA)--Qualified individuals with disabilities

Civil Rights Act of 1991Civil Rights Act of 1991Monetary damages in cases of intentional employment Monetary damages in cases of intentional employment discriminationdiscrimination


Reflection MomentReflection Moment

Why do you think discrimination exist?Why do you think discrimination exist?

Have you ever been discriminated Have you ever been discriminated against?against?

What would you do to cope with What would you do to cope with discrimination?discrimination?


Reflection Moment (cont’d)Reflection Moment (cont’d)

How do people fight discrimination? How do people fight discrimination?

Have you ever discriminated against Have you ever discriminated against someone? someone?

What could you do to reduce What could you do to reduce

discrimination?discrimination?


Civil Rights Act 1964 Civil Rights Act 1964 (Title VI & VII)(Title VI & VII)

Title VI of the Civil Rights Act of 1964 Title VI of the Civil Rights Act of 1964 prevents discrimination by government prevents discrimination by government agencies that receive federal funding. If an agencies that receive federal funding. If an agency is found in violation of Title VI, that agency is found in violation of Title VI, that agency can lose its federal funding.agency can lose its federal funding.


Civil Rights Act 1964 Civil Rights Act 1964 (Title VI & VII) cont’d(Title VI & VII) cont’d

Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination prohibits employment discrimination because of race, color, religion, sex, or because of race, color, religion, sex, or national origin.national origin.


Civil Rights Act 1991Civil Rights Act 1991

To To amendamend the Civil Rights Act of 1964 to the Civil Rights Act of 1964 to strengthen and improve Federal civil rights strengthen and improve Federal civil rights laws, to provide for damages in cases of laws, to provide for damages in cases of intentional employment discrimination, to intentional employment discrimination, to clarify provisions regarding disparate clarify provisions regarding disparate impact actions, and for other purposes. impact actions, and for other purposes.


Vietnam Era Veterans Vietnam Era Veterans Readjustment Act of 1974Readjustment Act of 1974

Vietnam era veterans, special disabled Vietnam era veterans, special disabled veterans, and veterans who served on veterans, and veterans who served on active duty during a war or in a campaign active duty during a war or in a campaign or expedition for which a campaign badge or expedition for which a campaign badge has been authorized are protected in has been authorized are protected in employment by the Vietnam Era employment by the Vietnam Era Veterans' Readjustment Assistance Act of Veterans' Readjustment Assistance Act of 1974, as amended.1974, as amended.


EEOC Title VII ChargesEEOC Title VII Charges

FY 2006FY 2006 FY 2007FY 2007ReceiptsReceipts 56,15556,155 61,159 61,159Resolutions*Resolutions* 44,22844,228 53,631 53,631

Monetary Monetary $126.5M$126.5M $220.0M$220.0MBenefitsBenefits


Age Discrimination ActAge Discrimination Act

Protects individuals who are 40 years of Protects individuals who are 40 years of age or older from employment age or older from employment discrimination based on age. discrimination based on age.

Protections apply to both employees and Protections apply to both employees and job applicants. job applicants.


Age Discrimination Act Age Discrimination Act (cont’d)(cont’d)

It is unlawful to discriminate against a It is unlawful to discriminate against a person because of his/her age with person because of his/her age with respect to any term, condition, or privilege respect to any term, condition, or privilege of employment, including, but not limited of employment, including, but not limited to, hiring, firing, promotion, layoff, to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, compensation, benefits, job assignments, and training.and training.


Age Discrimination Act Age Discrimination Act (cont’d)(cont’d)

The ADEA applies to employers with 20 or The ADEA applies to employers with 20 or more employees, including state and local more employees, including state and local governments. governments.


EEOC Age Discrimination EEOC Age Discrimination ChargesCharges


Monetary Monetary $51.5M $51.5M $66.8M $66.8MBenefitsBenefits


Religious AccommodationReligious Accommodation

An employer is required to reasonably An employer is required to reasonably accommodate the religious belief of an accommodate the religious belief of an employee or prospective employee, unless employee or prospective employee, unless doing so would impose an undue doing so would impose an undue hardship.hardship.


Sex DiscriminationSex Discrimination

Title VII's broad prohibitions against sex Title VII's broad prohibitions against sex discrimination specifically cover:discrimination specifically cover:

Sexual Harassment.Sexual Harassment. Pregnancy Based Discrimination.Pregnancy Based Discrimination.


ADH Prohibits Sexual ADH Prohibits Sexual HarassmentHarassment

Sexual and Other Sexual and Other Unlawful Unlawful

Harassment PolicyHarassment Policy


ADH Prohibits Sexual ADH Prohibits Sexual Harassment (cont’d)Harassment (cont’d)

The Arkansas Department of Health The Arkansas Department of Health encourages employees to discuss encourages employees to discuss problems of sexual harassment with problems of sexual harassment with appropriate supervisors, to explain, to appropriate supervisors, to explain, to reach resolution, to make adjustments, if reach resolution, to make adjustments, if necessary, and to foster better necessary, and to foster better understanding between employees understanding between employees and supervisors.and supervisors.


How Widespread Is Sexual How Widespread Is Sexual Harassment?Harassment?

About 70% of women and 20% of men About 70% of women and 20% of men have experienced sexual harassment.have experienced sexual harassment.

About 15,000 sexual harassment cases About 15,000 sexual harassment cases are filed each year.are filed each year.


How Widespread Is Sexual How Widespread Is Sexual Harassment? (cont’d)Harassment? (cont’d)

Charges of sexual harassment cost U.S. Charges of sexual harassment cost U.S. workforce almost $40 million each year.workforce almost $40 million each year.

Complaints filed by men have more than Complaints filed by men have more than tripled in recent years.tripled in recent years.


Why You Need to KnowWhy You Need to Know

Sexual harassment:Sexual harassment:

Damages organizations.Damages organizations. Undermines trust and respect.Undermines trust and respect. Exposes us to damaging liabilities.Exposes us to damaging liabilities.


Harassment and the LawHarassment and the Law

Title VIITitle VII

The courtsThe courts

State lawState law


Harassment and the Law Harassment and the Law (cont’d)(cont’d)

Equal Employment Opportunity Equal Employment Opportunity Commission Commission (EEOC)(EEOC)

ADHADH


Harassment and the Law Harassment and the Law (cont’d)(cont’d)

UnwelcomeUnwelcome

HarmfulHarmful

IllegalIllegal

EEOC defines sexual harassment as EEOC defines sexual harassment as sexual conduct that is:sexual conduct that is:


Our PolicyOur Policy

. . . provides a clear . . . provides a clear statement of our statement of our position against position against sexual harassment.sexual harassment.


Our Policy (cont’d)Our Policy (cont’d)

It promotes compliance and prevention by It promotes compliance and prevention by defining responsibilities, anddefining responsibilities, and

Protects your rights and fosters respect Protects your rights and fosters respect for all.for all.



The criteria of sexual harassment are:The criteria of sexual harassment are: Submission to the sexual conduct is either an Submission to the sexual conduct is either an

explicit or implicit term or condition of explicit or implicit term or condition of employment.employment.

Submission to or rejection of the Submission to or rejection of the sexual conduct is used as a basis for sexual conduct is used as a basis for employment decisions affecting the person employment decisions affecting the person who did the submitting or rejecting.who did the submitting or rejecting.



The conduct creates an objectively hostile The conduct creates an objectively hostile or abusive work environment, so as to or abusive work environment, so as to alter the condition of the victim’s alter the condition of the victim’s employment.employment.


Our Policy (cont’d)Our Policy (cont’d) Actions that may be defined as sexual Actions that may be defined as sexual

harassment are not limited to the harassment are not limited to the “supervisor to employee” situation, but “supervisor to employee” situation, but may include actions of co-workers, actions may include actions of co-workers, actions of the same or opposite sex and actions of of the same or opposite sex and actions of individuals external to ADH, but who have individuals external to ADH, but who have contact with employees in the work contact with employees in the work environment, that create an environment, that create an objectively hostile work environment.objectively hostile work environment.


Is This Sexual Harassment?Is This Sexual Harassment?

A female employee wears miniskirts to work. A female employee wears miniskirts to work.

Is this inviting harassment?Is this inviting harassment?

A female supervisor makes frequent A female supervisor makes frequent comments about a male employee’s physique. comments about a male employee’s physique.

Is this sexual harassment?Is this sexual harassment?

A male supervisor makes frequent A male supervisor makes frequent comments about a male employee’s physique. comments about a male employee’s physique.


YES

YES

NO


Is This Sexual Harassment? Is This Sexual Harassment? (cont.)(cont.)

Two co-workers forward each other off-Two co-workers forward each other off-color jokes they receive in e-mails.color jokes they receive in e-mails.


An employee asks a co-worker out.An employee asks a co-worker out.


Two co-workers develop a personal Two co-workers develop a personal relationship.relationship.


NO

NO

NO


Is This Sexual Harassment? Is This Sexual Harassment? (cont.)(cont.)

An employee posts a swimsuit calendar An employee posts a swimsuit calendar in his work area. in his work area.


An employee posts a male pinup in her An employee posts a male pinup in her work area. work area.

Is this sexual harassment? Is this sexual harassment?

A good customer makes provocative A good customer makes provocative comments to employees. comments to employees.

Is this sexual harassment? Is this sexual harassment?

YES

YES

YES


Reflection MomentReflection Moment

Do you understand . . .Do you understand . . .


Reflection Moment (cont’d)Reflection Moment (cont’d)

Why it’s important to learn about sexual Why it’s important to learn about sexual harassment and how it violates the law?harassment and how it violates the law?

The terms of our policy and your role in The terms of our policy and your role in publicizing and enforcing it? publicizing and enforcing it?

What sexual harassment is and what it is What sexual harassment is and what it is not?not?


Economic HarassmentEconomic Harassment

Tangible Tangible employmentemployment

action, or action, or economic economic

harassment.harassment.

Quid Pro Quo Quid Pro Quo or “this for or “this for

that”that”


Hostile Work EnvironmentHostile Work Environment

Severe or pervasive Severe or pervasive conduct (or both). conduct (or both).

Intimidating, hostile, Intimidating, hostile, or offensive displays.or offensive displays.


Hostile Work Environment Hostile Work Environment (cont.)(cont.)

Examples include:Examples include:

Sexually explicit Sexually explicit pictures, calendars, pictures, calendars, graffiti, or objectsgraffiti, or objects


Hostile Work Environment Hostile Work Environment (cont.)(cont.)

Regularly:Regularly:

Using dirty words.Using dirty words.

Making sexual jokes.Making sexual jokes.

Using obscene gestures.Using obscene gestures.

Making rude comments of a sexual Making rude comments of a sexual nature.nature.


Is it Economic Harassment or Is it Economic Harassment or Hostile Work Environment?Hostile Work Environment?

An employee is asked to talk about her raise An employee is asked to talk about her raise with her supervisor after business hours at a with her supervisor after business hours at a romantic restaurant.romantic restaurant.

An employee brings a sexually explicit gag gift An employee brings a sexually explicit gag gift into work for a co-worker’s birthday present.into work for a co-worker’s birthday present.

This is economic harassment.

This describes a hostile work environment.


Is it Economic Harassment or Is it Economic Harassment or Hostile Work Environment?Hostile Work Environment?

A supervisor regularly uses obscene language A supervisor regularly uses obscene language when talking to his employees.when talking to his employees.

An employee who appears to be “very close” to An employee who appears to be “very close” to the boss always gets the easiest job the boss always gets the easiest job assignments.assignments.

This is economic harassment.

This describes a hostile work environment.


Preventing LiabilityPreventing Liability

ImplementImplement

CommunicateCommunicate

EnforceEnforce


Who’s Affected?Who’s Affected?

Those who commit acts Those who commit acts of sexual harassment, of sexual harassment, including:including:

Employees at any level.Employees at any level.

Clients or customers.Clients or customers.

Members of the Members of the same sex. same sex.


Who’s Affected?Who’s Affected? (cont’d) (cont’d)

Those who Those who experience, including:experience, including:

Direct targetsDirect targets

Bystanders and Bystanders and witnesseswitnesses


Sexual HarassmentSexual Harassment Do you understand the Do you understand the

two main forms of two main forms of sexual harassment — sexual harassment — economic and hostile economic and hostile work environment? work environment?

Do you understand Do you understand who may be affected who may be affected by sexual harassment by sexual harassment in the workplace?in the workplace?


Handling ComplaintsHandling Complaints Encourage reporting. Encourage reporting.

Respond to all Respond to all complaints.complaints.

Allow employees to Allow employees to bypass the normal bypass the normal chain of command.chain of command.


Handling Complaints (cont.)Handling Complaints (cont.) Respect confidentiality.Respect confidentiality.

Strike a balance Strike a balance between confidentiality between confidentiality and the need to and the need to investigate.investigate.

Protect everyone’s Protect everyone’s rights.rights.


Dealing with Dealing with Isolated IncidentsIsolated Incidents

Determine the exact nature of the incident.Determine the exact nature of the incident.

Counsel the alleged harasser.Counsel the alleged harasser.

Reassure the victim.Reassure the victim.

Monitor the situation carefully.Monitor the situation carefully.


Conducting InvestigationsConducting Investigations

What are the questions for which the What are the questions for which the employee must ask while filling out the employee must ask while filling out the complaint?complaint?


Conducting Investigations Conducting Investigations (cont’d)(cont’d)

Questions for the Questions for the alleged harasser.alleged harasser.

Questions for Questions for witnesses.witnesses.


Taking Corrective ActionTaking Corrective Action

Take effective Take effective remedial action.remedial action.

Balance competing Balance competing concerns.concerns.


Taking Corrective Action Taking Corrective Action (cont.)(cont.)

Make certain the Make certain the victim is not victim is not adversely affected.adversely affected.

Stop the harassment Stop the harassment and make sure it and make sure it doesn’t recur.doesn’t recur.


EEOC Sexual Harassment EEOC Sexual Harassment ChargesCharges




Taking Corrective Action Taking Corrective Action (cont’d)(cont’d)

Correct the effects Correct the effects of the harassment. of the harassment.

Follow up to make Follow up to make sure the problem sure the problem is solved.is solved.


Sexual harassment is prohibited by law and Sexual harassment is prohibited by law and workplace policy.workplace policy.

It involves more than physical conduct; it It involves more than physical conduct; it can also be verbal or visual.can also be verbal or visual.

Sexual harassment harms us all.Sexual harassment harms us all.

You have a responsibility to help prevent You have a responsibility to help prevent it.it.


Pregnancy Discrimination Pregnancy Discrimination

The Pregnancy Discrimination Act is an The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights amendment to Title VII of the Civil Rights Act of 1964.Act of 1964.

Discrimination on the basis of pregnancy, Discrimination on the basis of pregnancy, childbirth or related medical conditions childbirth or related medical conditions constitutes unlawful sex discrimination constitutes unlawful sex discrimination under Title VII. under Title VII.


Pregnancy Discrimination Pregnancy Discrimination (cont’d)(cont’d)

Women affected by pregnancy or related Women affected by pregnancy or related conditions must be treated in the same conditions must be treated in the same manner as other applicants or employees manner as other applicants or employees with similar abilities or limitations.with similar abilities or limitations.


EEOC Pregnancy EEOC Pregnancy Discrimination ChargesDiscrimination Charges




National Origin DiscriminationNational Origin Discrimination

BirthplaceBirthplace AncestryAncestry CultureCulture Linguistic characteristics Linguistic characteristics


Equal Pay ActEqual Pay Act

The Equal Pay Act requires that men and The Equal Pay Act requires that men and women be given equal pay for equal work women be given equal pay for equal work in the same establishment. The jobs need in the same establishment. The jobs need not be identical, but they must be not be identical, but they must be substantially equal. It is job content, not substantially equal. It is job content, not job titles, that determines whether jobs are job titles, that determines whether jobs are substantially equal. substantially equal.


Equal Pay Act (cont’d)Equal Pay Act (cont’d)

Employers may not pay unequal wages to Employers may not pay unequal wages to men and women who perform jobs that men and women who perform jobs that require substantially equal skill, effort and require substantially equal skill, effort and responsibility, and that are performed responsibility, and that are performed under similar working conditions within the under similar working conditions within the same establishment. same establishment.


Equal Opportunity andEqual Opportunity andAffirmative ActionAffirmative Action


ADH Prohibits DiscriminationADH Prohibits Discrimination

The Arkansas Department of Health The Arkansas Department of Health prohibits discrimination based on race, prohibits discrimination based on race, color, religion, sex, age, national origin, color, religion, sex, age, national origin, political beliefs, or disability that impairs political beliefs, or disability that impairs one or more major life activities as defined one or more major life activities as defined in the Americans with Disabilities Act.in the Americans with Disabilities Act.Policy 1009 Policy 1009 Equal Opportunity/Affirmative ActionEqual Opportunity/Affirmative Action


Affirmative ActionAffirmative Action

The affirmative action obligation entails: The affirmative action obligation entails:

Thorough, systematic efforts to prevent Thorough, systematic efforts to prevent discrimination from occurring or to detect discrimination from occurring or to detect it and eliminate it as promptly as possible, it and eliminate it as promptly as possible, and and

Recruitment and outreach measuresRecruitment and outreach measures


Bona Fide Occupational Bona Fide Occupational QualificationsQualifications

A defense allowing an employer to limit a A defense allowing an employer to limit a particular job to members of one sex, particular job to members of one sex, religion, or national origin group.religion, or national origin group.

Race cannot ever be a BFOQ for any job.Race cannot ever be a BFOQ for any job.


Bona Fide Occupational Bona Fide Occupational Qualifications (cont’d)Qualifications (cont’d)

An employer claiming that sex is a BFOQ An employer claiming that sex is a BFOQ for a job must show that all or substantially for a job must show that all or substantially all members of the excluded sex are all members of the excluded sex are incapable of performing the duties of the incapable of performing the duties of the job and that failure to allow the exclusion job and that failure to allow the exclusion would undermine the "essence" (i.e., the would undermine the "essence" (i.e., the central purpose or mission) of the central purpose or mission) of the employer's business.employer's business.


Discriminatory PracticesDiscriminatory Practices

Under Title VII of the Civil Rights Act of Under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in (ADA), and the Age Discrimination in Employment Act (ADEA), it is illegal to Employment Act (ADEA), it is illegal to discriminate in any aspect of employment, discriminate in any aspect of employment, including:including:

List on next slide.List on next slide.


Discriminatory Practices (cont’d)Discriminatory Practices (cont’d) Hiring and firing,Hiring and firing,

Compensation, Compensation, assignment, or assignment, or classification of classification of employees,employees,

Transfer, promotion, Transfer, promotion, layoff, or recall, layoff, or recall,

Job advertisements,Job advertisements,

Recruitment,Recruitment,

Testing,Testing,

Use of company facilities, Use of company facilities,

Training and Training and apprenticeship programs, apprenticeship programs,

Pay, retirement plans, and Pay, retirement plans, and disability leave; ordisability leave; or

Other terms and conditions Other terms and conditions of employment, and of employment, and

Fringe benefits. Fringe benefits.


Federal RulesFederal Rules Federal laws concerning workplace Federal laws concerning workplace

discrimination are enforced by different discrimination are enforced by different Federal agencies. Unless the government Federal agencies. Unless the government speaks with one voice on matters of speaks with one voice on matters of employment nondiscrimination, workers may employment nondiscrimination, workers may be confused as to what rights they have and be confused as to what rights they have and how to protect them and employers may be how to protect them and employers may be uncertain of their obligations and how to uncertain of their obligations and how to voluntarily comply with their legal duties.voluntarily comply with their legal duties.


Federal Rules (cont’d)Federal Rules (cont’d) The EEOC is responsible for coordinating The EEOC is responsible for coordinating

the Federal government's employment the Federal government's employment non-discrimination effort. The EEOC is non-discrimination effort. The EEOC is required to review regulations and other required to review regulations and other EEO policy-related documents before they EEO policy-related documents before they are issued to ensure consistency in the are issued to ensure consistency in the Federal government's effort to combat Federal government's effort to combat workplace discrimination.workplace discrimination.


Americans with Disabilities ActAmericans with Disabilities Act

An otherwise qualified person with a disability An otherwise qualified person with a disability will not, on the basis of disability, be excluded will not, on the basis of disability, be excluded from participating in, be denied benefits of, from participating in, be denied benefits of, or otherwise be subjected to discrimination or otherwise be subjected to discrimination under any program, service, activity or under any program, service, activity or employment opportunity in violation of the employment opportunity in violation of the Rehabilitation Act of 1973, as amended and Rehabilitation Act of 1973, as amended and the Americans with Disabilities Act of the Americans with Disabilities Act of 1990 (ADA), as amended.1990 (ADA), as amended.


Americans with Disabilities ActAmericans with Disabilities Act


PurposePurpose

You will be able to:You will be able to:

Identify the purpose of the ADA.Identify the purpose of the ADA.Define “disability” correctly.Define “disability” correctly.Make reasonable accommodations.Make reasonable accommodations.Handle job interview discussions.Handle job interview discussions.Avoid discrimination based on Avoid discrimination based on

disability.disability.


ADA at a GlanceADA at a Glance

One in Six One in Six Americans have Americans have

a disability.a disability.


The ActThe Act ““No covered entity shall discriminate No covered entity shall discriminate

against a qualified individual with a against a qualified individual with a disability because of the disability of such disability because of the disability of such individual in regard to job application individual in regard to job application procedures; the hiring, advancement, or procedures; the hiring, advancement, or discharge of employees; employee discharge of employees; employee compensation; job training; and other compensation; job training; and other terms, conditions, and privileges of terms, conditions, and privileges of employment.”employment.”


ADA Applies to . . .ADA Applies to . . .

Eligible employees:Eligible employees:

Qualified individuals who can do the job with Qualified individuals who can do the job with or without accommodations.or without accommodations.

Part-time and full-time.Part-time and full-time.


Defining DisabilityDefining Disability Physical or mental Physical or mental

impairment that impairment that substantially limits one substantially limits one or more of the major or more of the major life activities.life activities.

Record of impairment.Record of impairment.

Regarded as having Regarded as having an impairment.an impairment.


Major Life ActivitiesMajor Life Activities

Caring for one’s Caring for one’s self.self.

Performing manual Performing manual tasks.tasks.

Walking.Walking.

Seeing.Seeing.

Hearing.Hearing.

Speaking.Speaking.

Breathing.Breathing.

Learning.Learning.


Defining Disability (cont’d)Defining Disability (cont’d) Covered:Covered:

AIDS or HIV virus,AIDS or HIV virus,Epilepsy,Epilepsy,Learning disability,Learning disability,Limited or no use of limbs,Limited or no use of limbs,Hearing, vision, or speech impairment,Hearing, vision, or speech impairment,Paralysis,Paralysis,Mental retardation.Mental retardation.


Defining Disability (cont’d)Defining Disability (cont’d)

NotNot covered: covered:

Impairments of short duration.Impairments of short duration.Temporary impairments.Temporary impairments.Current illegal drug use.Current illegal drug use.


ADA and AddictionsADA and Addictions

Recovering Recovering alcoholism covered.alcoholism covered.

Current use of illegal Current use of illegal drugs drugs notnot covered. covered.

Drug tests allowed.Drug tests allowed.

Other addictions Other addictions notnot covered. covered.

StarEAPStarEAP is administered by is administered by

CorpHealthCorpHealth

The Arkansas regionalThe Arkansas regional

office is located at:office is located at:

1701 Centerview Drive,1701 Centerview Drive,

Suite 101Suite 101

Little Rock, AR 72211Little Rock, AR 72211

Phone: 1-866-378-1645Phone: 1-866-378-1645

available 24 hours a day,available 24 hours a day,

7 days a week.7 days a week.


Basic Statutory ObligationsBasic Statutory Obligations We may not We may not

discriminate based discriminate based on disabilities.on disabilities.

We must make We must make reasonable reasonable accommodations.accommodations.

We may hire the best We may hire the best qualified applicant.qualified applicant.


Reasonable AccommodationReasonable Accommodation

Modifications or Modifications or adjustments to a job, the adjustments to a job, the work environment or the work environment or the way things usually are way things usually are done that enables a done that enables a qualified individual with qualified individual with a disability to enjoy an a disability to enjoy an equal employment equal employment opportunity.opportunity.


Examples of Reasonable Examples of Reasonable AccommodationsAccommodations

Acquiring or modifying equipment or Acquiring or modifying equipment or devices.devices.

Making the workplace accessible to and Making the workplace accessible to and usable by individuals with disabilities.usable by individuals with disabilities.

Part-time or modified work schedules.Part-time or modified work schedules.

Providing readers or interpreters.Providing readers or interpreters.


Examples of Reasonable Examples of Reasonable Accommodations (cont.)Accommodations (cont.)

Job restructuring.Job restructuring.

Intermittent leave.Intermittent leave.

Exception:Exception:

Undue hardship.Undue hardship.


Undue HardshipUndue Hardship

Changes that are:Changes that are:

Unduly costly,Unduly costly, Extensive,Extensive, Substantial,Substantial, Disruptive, orDisruptive, or Alter the nature of the Alter the nature of the

business.business.


Undue Hardship (cont’d)Undue Hardship (cont’d)

Types:Types:

Work interruption.Work interruption. Intermittent leave.Intermittent leave.

Prejudice is Prejudice is notnot hardship. hardship.


ADA BasicsADA Basics

Questions?Questions?


Posting and RecordkeepingPosting and Recordkeeping

Post ADA notices and information in forms Post ADA notices and information in forms and handbooks.and handbooks.

Postings must be accessible.Postings must be accessible.

Record all requests and reports on action.Record all requests and reports on action.


Medical InformationMedical Information

All medical All medical information must information must be kept strictly be kept strictly confidential.confidential.


Job InterviewsJob Interviews

Don’t ask about Don’t ask about the:the:

Existence of a Existence of a disability.disability.

Nature of a Nature of a disability.disability.

Severity of a Severity of a disability.disability.


Job Interviews (cont’d)Job Interviews (cont’d)

Ask only about reasonable accommodations Ask only about reasonable accommodations when:when:

Describing the hiring process.Describing the hiring process. Disability is obvious or disclosed.Disability is obvious or disclosed. Describing or demonstrating how Describing or demonstrating how

the job is performed.the job is performed.


Talking AccommodationTalking Accommodation

Identify non-obvious disabilities.Identify non-obvious disabilities.

Discuss accommodations.Discuss accommodations.

Employees are not guaranteed their Employees are not guaranteed their choice of accommodation.choice of accommodation.


Direct ThreatDirect Threat

An employee with a disability poses a An employee with a disability poses a significant risk of substantial harm in the significant risk of substantial harm in the workplace.workplace.

We are We are notnot required to accommodate. required to accommodate.

We must determine direct threat.We must determine direct threat.


Reinstatement RequirementsReinstatement Requirements Employees get:Employees get:

Same or equivalent Same or equivalent position.position.

Vacant job at lower Vacant job at lower level.level.

NoNo promoting or promoting or bumping required.bumping required.

Termination Termination possible.possible.


Liability under ADALiability under ADA

Acts for which we may be liable.Acts for which we may be liable.

What employees, who can sue, ask for.What employees, who can sue, ask for.


REASONABLE REASONABLE ACCOMMODATIONACCOMMODATION

Any necessary adaptation that will enable an Any necessary adaptation that will enable an otherwise qualified individual with a disability otherwise qualified individual with a disability to perform the essential functions of a job.to perform the essential functions of a job.

Examples:Examples:

HoursHoursFacilitiesFacilitiesPaper cubs at water fountainPaper cubs at water fountainModifications in job, equipment and work areaModifications in job, equipment and work area


EEOC ADA EEOC ADA ChargesCharges




EEOC ADA Charges (Examples)EEOC ADA Charges (Examples)

ImpairmentImpairment # # of Charges of Charges 20072007

Anxiety DisorderAnxiety Disorder 488 488

AsthmaAsthma 269 269

CancerCancer 578 578

DepressionDepression 1,200 1,200

DiabetesDiabetes 912 912

Record of DisabilityRecord of Disability 1,052 1,052

Regarded as DisabledRegarded as Disabled 3,143 3,143

Relationship/AssociationRelationship/Association 253 253


Liability under ADA (cont’d)Liability under ADA (cont’d)

Compensation Compensation determined by determined by extent of liability extent of liability and damage to and damage to victim.victim.

Retaliation Retaliation prohibited.prohibited.


Avoid making assumptions about a Avoid making assumptions about a disability and its impact on the job.disability and its impact on the job.

Judge individuals only on their Judge individuals only on their abilityability to to perform essential job functions.perform essential job functions.

Make reasonable accommodations to Make reasonable accommodations to provide equal opportunities to people provide equal opportunities to people with disabilities.with disabilities.


Questions or Accommodations??Questions or Accommodations??

ADA Coordinator.ADA Coordinator.

Office of Legal Counsel.Office of Legal Counsel.

HR-Employee Relations.HR-Employee Relations.


Fair Labor Standards ActFair Labor Standards Act


Session ObjectivesSession Objectives

You will be able to:You will be able to:

Comply with the basic requirements of FLSA.Comply with the basic requirements of FLSA.

Determine whether an employee is exempt or Determine whether an employee is exempt or nonexempt.nonexempt.

Apply FLSA requirements to part-time workers Apply FLSA requirements to part-time workers and independent contractors.and independent contractors.


FLSA BasicsFLSA Basics

Minimum wage and compensatory time Minimum wage and compensatory time requirements.requirements.

Hours of work and how to calculate Hours of work and how to calculate compensatory time.compensatory time.

Recordkeeping requirements.Recordkeeping requirements.

Exemptions from compensatory time Exemptions from compensatory time requirements.requirements.


Why You Need to KnowWhy You Need to Know

Wage and hour issues are critical to the Wage and hour issues are critical to the operation of the organization.operation of the organization.

FLSA determinations may be difficult.FLSA determinations may be difficult.

The law affects employee compensation.The law affects employee compensation.

You play an important role in compliance.You play an important role in compliance.


Non-Exempt and ExemptNon-Exempt and Exempt

Nonexempt Nonexempt employeesemployees

Exempt employeesExempt employees


Minimum WageMinimum Wage

ApplicationApplication

Federal versus state requirementsFederal versus state requirements

Minimum wage/overtime postersMinimum wage/overtime posters


Equal PayEqual Pay

Equal Pay Act.Equal Pay Act.

Comparison of jobs.Comparison of jobs.

Prohibited pay Prohibited pay differentials.differentials.

Permitted pay Permitted pay differentials.differentials.


Hours of WorkHours of Work FLSA requires FLSA requires

regular and regular and overtime pay.overtime pay.

Hours worked.Hours worked.

Work week.Work week.

Preparatory and Preparatory and concluding concluding activities.activities.


Hours of Work (cont.)Hours of Work (cont.)

Waiting time.Waiting time.

On-call time.On-call time.

Travel time.Travel time.


Hours of Work (cont.)Hours of Work (cont.)

Split shifts.Split shifts.

Training programs, lectures, and meetings.Training programs, lectures, and meetings.

Holidays, vacations, and sick days.Holidays, vacations, and sick days.

Medical attention.Medical attention.


OvertimeOvertime

FLSA requires FLSA requires overtime payment overtime payment

for nonexempt.for nonexempt.


Overtime (cont’d)Overtime (cont’d)

Comp time for hours worked over forty (40):Comp time for hours worked over forty (40):

Averaging hours prohibited.Averaging hours prohibited.

Holiday/sick pay not included.Holiday/sick pay not included.

On-call and travel time may be included.On-call and travel time may be included.

Employee rights. Employee rights.

Time of payment.Time of payment.


Calculating OvertimeCalculating Overtime

Fixed 40-hour Fixed 40-hour workweek.workweek.

Fixed work week of Fixed work week of fewer than 40 fewer than 40 hours.hours.


Overtime: Other IssuesOvertime: Other Issues

Authorized overtime.Authorized overtime.

Unauthorized overtime.Unauthorized overtime.


Rest PeriodsRest Periods

LunchLunch

Breaks (Privilege) Breaks (Privilege)


Recording Work TimeRecording Work Time

Means of tracking Means of tracking hours.hours.

Regular starting Regular starting and stopping times.and stopping times.

Discrepancies.Discrepancies.

Rounding off.Rounding off.


FLSA RecordkeepingFLSA Recordkeeping Employee Employee

information.information.

Basic employment Basic employment and earnings and earnings records.records.

Minimum Minimum requirements.requirements.


FLSA RequirementsFLSA Requirements

Questions?Questions?


FLSA is a federal law that applies to most FLSA is a federal law that applies to most organizations.organizations.

This law governs minimum wage, This law governs minimum wage, overtime, and child labor issues.overtime, and child labor issues.

Most employees are covered.Most employees are covered.

Be aware of the impact of this law.Be aware of the impact of this law.


Family Medical Leave ActFamily Medical Leave Act


How FMLA Helps EmployeesHow FMLA Helps Employees

Allows leave for family and medical issues.Allows leave for family and medical issues.

Provides for the maintenance of benefits.Provides for the maintenance of benefits.

Guarantees reinstatement to the same or Guarantees reinstatement to the same or an equivalent position.an equivalent position.


FMLA HistoryFMLA History Federal law enacted Federal law enacted

in 1993.in 1993.

Helps employees Helps employees balance work and balance work and family.family.

Federal law allows Federal law allows states to include more states to include more expansive provisions.expansive provisions.


Amount of Leave AllowedAmount of Leave Allowed FMLA allows 12 weeks of FMLA allows 12 weeks of

unpaid leave for the care unpaid leave for the care of:of:

A newly born, adopted, or A newly born, adopted, or foster-placed child.foster-placed child.

A spouse, child, or parent A spouse, child, or parent with a “serious health with a “serious health condition.”condition.”

Your own serious Your own serious health condition.health condition.


Amount of Leave Allowed Amount of Leave Allowed (cont.)(cont.)

During a 12-month During a 12-month period:period:

LeaveLeave——12 weeks.12 weeks.


Amount of Leave Allowed Amount of Leave Allowed (cont.)(cont.)

FMLA allows substitution of paid leave in FMLA allows substitution of paid leave in certain circumstances, including:certain circumstances, including:

Vacation leave.Vacation leave.

Sick leave.Sick leave.

Short-term disability insurance.Short-term disability insurance.

Workers’ compensation leave.Workers’ compensation leave.


Serious Health ConditionSerious Health Condition

Physical or Physical or mental condition.mental condition.

Pregnancy or Pregnancy or prenatal care.prenatal care.

Chronic, serious Chronic, serious condition.condition.


Serious Health Condition Serious Health Condition (cont.)(cont.)

Multiple medical Multiple medical treatments.treatments.

““Bonding” leave.Bonding” leave.

Illness or injury Illness or injury suffered on suffered on active duty.active duty.


Would You Approve Would You Approve These Requests?These Requests?

Employee requests 12 weeks of leave:Employee requests 12 weeks of leave:

Wife has cancer and needs home care.Wife has cancer and needs home care.

>> HOWEVER <<>> HOWEVER <<

Employee used 3 weeks of leave 6 months Employee used 3 weeks of leave 6 months ago for surgery.ago for surgery.

Would you approve this leave ??Would you approve this leave ??Would you STILL approve this leave ??Would you STILL approve this leave ??


Would You Approve Would You Approve These Requests? (cont.)These Requests? (cont.)

Employee requests 12 weeks of leave:Employee requests 12 weeks of leave:

Husband was injured on active duty, andHusband was injured on active duty, and Employee used 12 weeks of leave 9 months Employee used 12 weeks of leave 9 months

ago.ago.

Would you approve this leave?Would you approve this leave?


Would You Approve Would You Approve These Requests? (cont.)These Requests? (cont.)

Employee requests 30 days of leave:Employee requests 30 days of leave:

Needs inpatient treatment for alcoholism.Needs inpatient treatment for alcoholism. Has never requested leave before.Has never requested leave before.

Would you approve this leave?Would you approve this leave?


Certificate of Health Care Certificate of Health Care ProviderProvider

Medical certification Medical certification may be requested may be requested

before granting leave.before granting leave.


Certificate of Health Care Certificate of Health Care Provider (cont’d)Provider (cont’d)

Medical certification may be requested for Medical certification may be requested for a serious health condition or active duty a serious health condition or active duty and caregiver leave.and caregiver leave.

Certification includes:Certification includes:

A statement of the need for time off.A statement of the need for time off. The starting date and the expected The starting date and the expected

duration.duration.


Certificate of Health Care Certificate of Health Care Provider (cont’d)Provider (cont’d)

Certificate of health care provider formCertificate of health care provider form::

Form DHHS-1186Form DHHS-1186


FMLA: Basic ProvisionsFMLA: Basic Provisions

Do you understand?Do you understand?


FMLA: Basic Provisions FMLA: Basic Provisions (cont’d)(cont’d)

Do you understand:Do you understand:

The purpose of FMLA?The purpose of FMLA?

The amount of leave FMLA allows?The amount of leave FMLA allows?

What a “serious health condition” is?What a “serious health condition” is?

The requirements for medical certification The requirements for medical certification and consultation?and consultation?


Who’s Covered?Who’s Covered?

Private employers.Private employers.

State and local governments State and local governments and most federal employers.and most federal employers.


Eligible EmployeesEligible Employees

Who is eligible for Who is eligible for FMLA?FMLA?


Eligible Employees (cont’d)Eligible Employees (cont’d)

Worked for 12 months for our Worked for 12 months for our organization.organization.

Worked for a total of 1,250 hours in the Worked for a total of 1,250 hours in the most recent 12 months.most recent 12 months.

Consecutive months of service not Consecutive months of service not required.required.


Notice RequirementsNotice Requirements Employees must:Employees must:

Give at least 30 days’ notice or reasonable Give at least 30 days’ notice or reasonable notice where leave is foreseeable.notice where leave is foreseeable.

Give notice “as soon as practicable” Give notice “as soon as practicable” (2-day rule) where leave is not foreseeable.(2-day rule) where leave is not foreseeable.

Give notice “as soon as possible” if the need Give notice “as soon as possible” if the need for military leave is foreseeable.for military leave is foreseeable.

Provide certification as required. Provide certification as required.

Supervision (ADH): Arkansas Legal Environment (Update Module I) Course I.D. #1022659

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Transcript of Supervision (ADH): Arkansas Legal Environment (Update Module I) Course I.D. #1022659