The Top 5 Critical Employment Laws Managers Need to Know

Report
The Top 5 Critical Employment Laws
Managers Need to Know
Third Annual Employment Law Summit
Prince William SHRM and Vanderpool Frostick & Nishanian PC
October 3, 2014
Presented by:
Kristina Keech Spitler, Esq.
And
Jennifer Massanova, PHR
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
1
DISCLAIMER
This presentation and information is designed to provide general information, is
not intended to constitute legal advice and should not be utilized as a substitute for
professional services in specific situations. If legal advice or other expert
assistance is required, the services of a professional should be sought.
Kristina Keech Spitler
Vanderpool, Frostick & Nishanian, PC
Jennifer Massanova
ManTech International Corporation
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
2
Kristina Keech Spitler, Esq.
3
Kristina Keech Spitler, Esq. is a shareholder with the law firm, Vanderpool, Frostick &
Nishanian, P.C., where she represents and advises businesses on business and employment
issues and litigation including representing employers in court, in mediation, and before
administrative agencies such as EEOC, assisting clients comply with laws on such issues as
discrimination, disabilities and accommodations, wage and hour, leave, hiring and firing , and
discipline. In addition, her practice includes drafting and updating handbooks and policies,
providing management and employee training, performing internal investigations, and
counseling on matters relating to breach of agreements, non-competes and restrictive covenant
agreements. Ms. Spitler is a highly rated speaker and trainer on employment law issues.
Ms. Spitler has been recognized as one of one of Virginia’s “Most Influential Women” by
Virginia Lawyers Media and as one of Virginia’s “Legal Elite” in Labor/Employment Law by
Virginia Business Magazine.
Contact Ms. Spitler at [email protected] or (703) 369-4738.
Kristina Keech Spitler
Vanderpool, Frostick & Nishanian, PC
Jennifer Massanova
ManTech International Corporation
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Jennifer Massanova, PHR
Jennifer Massanova, PHR is currently the Executive Director of Human Resource, EEO
and Employee Relations at ManTech International. Jennifer leads the administration of
policies, procedures and programs covering all areas of employee services to further the
development of employee/company relationships. She counsels corporate and business
operations regarding HR policies and procedures and advises HR staff, management and
employees in all areas of HR. Ms. Massanova ensures Compliance with all state/federal laws
regarding employee relations and researches, drafts, recommends and implements HR
policies and procedures. She ensures compliance with all applicable policies, rules,
regulations and laws; stays abreast of legal, regulatory and policy developments affecting
areas of responsibility; enforces legal and regulatory requirements impartially, and serves as
the company OFCCP audit representation and prepares submissions, and interfaces with
the OFCCP. She also coordinates development of the AAP plan, and in cooperation with
HRIS, she prepares, reviews and submits the annual EEO-1, VETS-100 and VETS-100a
reports and makes recommendations for legal review and reporting.
Contact Ms. Massanova at [email protected] or (703)
_________________
Kristina Keech Spitler
Vanderpool, Frostick & Nishanian, PC
Jennifer Massanova
ManTech International Corporation
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
4
A Note About Cell Phones
Please TAKE OUT your cell phones ??????????
Kristina Keech Spitler
Vanderpool, Frostick & Nishanian, PC
Jennifer Massanova
ManTech International Corporation
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
5
Agenda
Managers/supervisors need to know some basics about
employment laws before being sent into the wild:
•
•
•
•
•
Title VII/Discrimination
ADA
Retaliation
NLRA
FLSA
(Note Federal and State Laws)
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Overview of Discrimination Laws
Title VII, PDA, ADEA, ADA, GINA, and USERRA
prohibit discrimination based on:
Race/skin color
National origin
Religion
Sex
Pregnancy
Age (40+ years)
Disability
Genetic Information
Military Status
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Title VII Basics
Title VII prohibits discrimination in employment because
of a person’s race, color, national origin, religion, or
sex/gender.
Discrimination – What Is It?
Changing or affecting the terms and/or conditions of a
person’s employment (or application) because of their
membership in a protected class.
• Negative or Positive change (favoritism)
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Title VII Basics
Discrimination Can Be Intentional or Unintentional
• Intentional discrimination can flow from
stereotypes
• Unintentional discrimination: Facially neutral
practices that have the effect of discriminating
against individuals because of their race, color,
national origin, religion, or sex.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Supervisors
A Company is strictly liable for a supervisor’s discriminatory
misconduct if it involves a tangible employment action
- hiring and firing, promotion and failure to promote,
demotion, undesirable reassignment,
compensation, etc.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Supervisors
In Title VII discrimination cases, for a company to be strictly
liable for a supervisor’s discriminatory misconduct, the
supervisor must be able to take “tangible employment
actions.”
Tangible employment actions means the power to hire, fire,
demote, promote, transfer, or discipline an employee.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Supervisors
While an employer is not strictly liable if supervisor’s
discriminatory misconduct does not result in tangible
employment action, the Company may still be liable unless:
– the employer exercised reasonable care to prevent
and correct promptly any harassing and
discriminatory behavior
AND
– the employee unreasonably failed to take advantage
of any preventive or corrective opportunities
provided by the employer or to avoid harm
otherwise.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Supervisors
Your supervisors must know what is unlawful
discrimination and refrain from any type of discriminatory
conduct or s/he will be subject to disciplinary action
which may include termination
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Supervisors
Supervisors duty to respond to complaints:
The EEOC has stated:
“An employer’s duty to exercise due care includes
instructing all of its supervisors and managers to
address or report to appropriate officials complaints
of harassment regardless of whether they are officially
designated to take complaints and regardless of
whether a complaint was framed in a way that
conforms to the organization’s particular complaint
procedures.”
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Things Managers Need to Know
about Title VII
• Discrimination can happen in or out of the office
• There should be no “chain of command” for complaints
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Common Pitfalls – Title VII
• Supervisors participating/condoning bad behavior
• Supervisors not dealing with complaints promptly and/or
properly
• Supervisors not being aware of their statements, jokes,
and/or actions could be considered offensive by
someone in a protected status
• Supervisors talking about the complaint with
others/retaliation
• Supervisors making judgment calls on religious beliefs
– That’s not a real religion
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Title VII Legal Cases
• EEOC v. Century Shree Corp. & Century Rama Inc., Case No. 11-cv-2558REB-CBS (D. Colo. Oct. 2, 2012).
– In October 2012, a Hampton Inn franchise in Craig, Colorado agreed to pay $85,000 to
resolve a race and national origin discrimination lawsuit regarding the terminations of
three Caucasian and non-Latino employees. According to the lawsuit, the general
manager of the hotel allegedly was told by the business owners "to hire more qualified
maids, and that they preferred maids to be Hispanic because in their opinion Hispanics
worked harder" and that White or non-Hispanic workers were indolent.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Americans with Disabilities Act Basics
ADA prohibits discrimination on the basis of a disability
against a qualified individual in:
Job application procedures
Hiring and firing
Advancement
Compensation
Job training
Other terms, conditions and privileges of
employment
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Americans with Disabilities Act Basics
• Prohibits discrimination against “qualified
individuals” with a disability, those with a record of a
disability, or those “regarded as” having a disability.
• Requires employer to provide a reasonable
accommodation to a qualified individual with a
disability that will allow him/her to perform the
essential job functions.
• Requires strict confidentiality with regard to an
employee’s medical information and records.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Americans with Disabilities Act Basics
•
•
•
•
•
•
•
•
deafness
blindness
intellectual disability
partially or completely
missing limbs
mobility impairment
requiring use of a
wheelchair
autism
cancer
cerebral palsy
•
•
•
•
•
•
•
•
diabetes
epilepsy
HIV infection
multiple sclerosis
muscular dystrophy
major depressive disorder
bipolar disorder
post-traumatic stress
disorder
• OCD
• schizophrenia
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Things Managers Need to Know
about the ADA
Basic Employee Obligations:
• The employee must request an accommodation before
employer has a duty to discuss it, unless the disability
and the need for an accommodation are obvious.
• To cooperate with the employer in identifying a
reasonable accommodation.
• To provide medical documentation when required.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Things Managers Need to Know
about the ADA
Basic Employer Obligations:
• If the employee has a disability, the employer must
provide reasonable accommodations to allow the
person to perform the essential job functions, unless
doing so would impose an undue hardship
• To determine reasonable accommodations, you must
engage in the “interactive process” when
accommodations are requested. You MUST react when
an employee requests an accommodation.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Things Managers Need to Know
about the ADA
Basic Employer Obligations:
• Accommodations – NO MAGIC WORDS ARE REQUIRED.
Employee need only mention a medical condition and its
impact on his/her ability to perform the job.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Common Pitfalls – ADA
• Granting significant accommodations on the fly
– I decided to let her work from home for a couple of
weeks, but she can’t do that forever! I didn’t actually
say that to her (but employee may have perceived it
as being implied).
• NOT recognizing an employee’s request as one that
implicates the ADA and requires an interactive dialogue
and reasonable accommodations
• NOT granting reasonable accommodations
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Common Pitfalls – ADA
• Playing doctor
– I think he is depressed.
– I think she is bipolar!
• Discussion of issue with other employees
– Why does Suzie get Fridays off? Well, (stage whisper)
don’t say anything, but she has cancer (or she has a
disability)!
– I have to let her take off – I think it’s garbage and she
is goldbricking.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Managers – ADA
A manager is mostly likely to be in a position where
s/he has knowledge of a disability or possible
disability.
The manager must ensure that s/he does not engage
in discrimination (even inadvertently).
The mention of a employee’s health condition
(mental and physical) should trigger in the manager’s
mind the possibility that there may be a requirement
to provide accommodations for a disability.
The manager should promptly notify Human
Resources/President
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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ADA Legal Cases
• EEOC v. Starbucks Corp.
– A barista with mental impairments (including bipolar and attention deficit disorders)
performed well when she was accommodated with extra training and support, but a
new manager stopped accommodating her. When her performance suffered, he cut her
hours, berated her in front of customers, placed her on a performance improvement
plan, and discharged her.
• The case settled for $75,000 in monetary relief to the barista and an additional $10,000 to the
Disability Rights Legal Center
• EEOC v. Convergys Customer Management Group
– A jury found that Convergys violated the ADA by denying Ahmet Demirelli, who has
brittle bone disease and uses a wheelchair, an additional few minutes for his lunch break
as a reasonable accommodation for his disability, and then firing him for being late.
Demirelli needed the additional time because his wheelchair prevented him from
looking over the tops of the workstations to find an empty station, and he had to inspect
each workstation until he found an empty one. His supervisor refused to reserve a
workstation for him.
• The court rejected Convergys’ argument that extending Demirelli’s break time by 15 minutes
would eliminate the company’s punctuality requirement.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Retaliation Basics
Law prohibits employers from retaliating against employees
for engaging in protected conduct such as:
-
filing a charge of discrimination with EEOC or state
agency
complaining of discrimination to employer
being a witnesses in a discrimination investigation
opposing unlawful discriminatory practices
requesting accommodations under the ADA
requesting FMLA leave
complaining of wage and hour violations
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Retaliation Basics
Retaliation for engaging in legally protected activity can
include:
• Overt negative job actions such as firing, demotion,
discipline, firing, salary reduction, and job
reassignment; or
• Subtle negative actions such as a change in job shift
which could be very detrimental to a parent with
young children and a less flexible schedule.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Things Managers Need to Know
about Retaliation
Retaliations claims are the most claims filed with the
EEOC.
These claims are also significant because the
retaliation claim survives even if there was no
underlying misconduct (discrimination, wage and
hour violation, etc.).
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Common Pitfalls – Retaliation
• Managers do not understand what retaliation is and that
it is unlawful.
• Hard to treat an employee who has complained of
discrimination (wage and hour violation, FMLA leave
issues, etc.) the same as every other employee
• Failing to evaluate if the manager is treating an employee
who has complained, in a defensible manner prior to
disciplining, particularly when close in time to a
complaint being made
• Failing to appreciate that a person who complained will
be more sensitive so need to ensure conduct is fair and
appears fair
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Retaliation Legal Cases
• EEOC v. Bertolini Corp.
-
EEOC filed suit against Bertolini Corporation in Tennessee for retaliation based upon
allegations that the company fired a maintenance mechanic and a human resource
assistant after they complained about unlawful discrimination at the company.
• As part of a settlement agreement, the company paid $92,500 to the two employees, provide in-person antiretaliation training to its employees, report all retaliation complaints to the EEOC for one year, and had to be
monitored by the EEOC for one year.
• Montell v. Diversified Clinical Services, Inc.
– Montell testified that throughout her time working for her supervisor, he would
comment on her appearance at every opportunity which became increasingly
aggressive. She complained to HR and after suffering further harassment by the
supervisor, quit. She alleges that she was constructively discharged in retaliation for
complaining about her supervisor’s sexual harassment.
– DCS vigorously disputed that there was a causal connection between Montell’s exercise
of her right to complain and the adverse action (forced to quit) as she had been on a PIP
for several months for problems in her work performance prior to her termination.
•
District Court held that Montell had presented a prima facia case of retaliation and the case can go to a jury.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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National Labor Relations Act Basics
• Defines the rights of employees to organize and bargain
collectively with employers through representatives of
their own choosing.
• Defines practices by employers and unions that are
inconsistent with those rights and are “unfair”
• Section 7 of the National Labor Relations Act gives
employees the right to engage in concerted activity
(group action without a union) to attempt to improve
their terms and conditions of employment.
• Establishes the National Labor Relations Board (NLRB) to
oversee and enforce the provisions of the act.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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Things Managers Need to Know
about NLRA
•
•
•
•
Applies to everyone – not just unions
Unfair Labor Practices (ULPs)
Social Media
Solicitation/Distribution
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
34
Common Pitfalls – NLRA
• We are a right-to-work state!
– That may be so (VA is, MD and DC are not) but did you mean
“We are an at-will employer/state?”
• Allowing focus groups to discuss conditions of work
• Disciplining for NLRA-protected activity
– PCA
•
•
•
•
Solicitation/Distribution
“We would never go union”
Not recognizing formation signs
Authorization cards
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
35
NLRA Legal Cases
• The NLRB in Electromation, Inc.,(7th Cir. 1994) concluded that
an employee participation committee is a “labor organization”
if it satisfies the following criteria:
• Employees participate;
• The organization exists, at least in part, for the purpose of “dealing with” the
employer;
• The “dealings” must concern grievances, labor disputes, wages, rates of pay, hours
of employment or conditions of work; and
• The committee acts as the representative of the employees
• Knauz BMW (Sept 28, 2012)
– Two sets of FaceBook posts:
• Discussion among co-workers about their discontent regarding the quality of food
and beverages at a dealership promoting event and how this cold impact sales
• Photos of an accident involving a car from a jointly owned dealership across the
street
– Ruling: Promotion posts were protected, concerted activity. Photo
post about the accident were not.
– Because the employee was fired based on the accident post, the term
did not violate the NLRA.
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
36
Fair Labor Standards Act Basics
• Prescribes standards for the basic minimum wage and
overtime pay, affects most private and public
employment.
• Requires employers to pay covered employees who are
not otherwise exempt at least the federal minimum wage
and overtime pay of one-and-one-half-times the regular
rate of pay.
• Establishes child labor standards affecting full-time and
part-time workers
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
37
Things Managers Need to Know
about FLSA
FLSA Cases are being filed in record numbers in both federal
and state courts.
DOL Wage & Hour Division has more investigators to
investigate anonymous complaints which often come from
current and former disgruntled employees.
Lots of attention on wages now:
• Presidential focus on minimum wage, the “white-collar
exemptions” and the gender pay gap.
• Plaintiff lawyers have increased website efforts to recruit
employees to bring suits
• Employees can bring collective actions
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
38
Common Pitfalls – FLSA
• Not paying properly
– Docking pay
– Using Salary to avoid OT
• Improper classification
– Improperly classifying as exempt
– “Promoting” employees into exempt status
– Independent Contractors
– Interns
• Not paying overtime
– She’s going to work “Off the clock”
– Smart Phones
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
39
FLSA Legal Cases
•
Young, et al v. Dollar Tree Stores, Inc.
– Former hourly Assistant Store Manager (ASM) employees of Dollar Tree, filed
these related lawsuits against Dollar Tree Stores, Inc. challenging the Dollar
Tree‘s policy of forcing hourly Assistant Store Manager employees to work offthe-clock, thereby failing to pay such employees for all times worked, resulting
in minimum wage and overtime violations.
•
Manning v. Boston Medical Center Corp.
– Employee (nurses) sued BMC on basis that its automatic timekeeping system
improperly deducted time for meals and breaks from employee hours
worked. There were many times that the employee/s worked through their
lunch/breaks and yet their supervisors still deducted this time from their pay.
• BMC has agreed to pay $1,500,000 to settle the case
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
40
What To Do?
• EDUCATE AND TRAIN YOUR MANAGERS EARLY AND OFTEN
– Have a role-playing scenario with your manager
– Create a fun quiz
– Talk about legal cases
– FOEs
– Company and personal liability
• Provide a copy of your policies to all employees
• Advise the manager to call HR or President and then call Legal
Counsel if needed!
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
41
Thank You
Kristina Keech Spitler
Vanderpool, Frostick & Nishanian, PC
Jennifer Massanova
ManTech International Corporation
Copyright 2014 Kristina Keech Spitler and Jennifer Massanova. All rights reserved.
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