Employment Law and Human Resources Management in Higher Education

1. Employment Law and Human Resources Management in Higher Education

2. Section ThreeRegulation of the Academic Workplace

3. Regulation of the Academic Workplace Privacy Expectations Employees enjoy a reasonable expectation of privacy Employers do have authority to monitor employees and control the workplace Areas where privacy expectations may be challenged: • Desk • Workplace Locker • University provided devices and resources not entitled to privacy protection • Cell phones • Computers • Email accounts

4. Regulation of the Academic Workplace Workplace Searches • Often necessary for investigation of alleged misconduct and other legitimate business purposes • Fourth Amendment protects employees from unreasonable searches and seizures • Critical issue: Balancing Employee interest protected by Fourth Amendment against Employer University legitimate workplace interests • Employee Handbook often declare what condition may permit workplace searches

5. Regulation of the Academic Workplace Computer Usage Policy Colleges and Universities routinely have established campus wide policies • Applying to campus networks • Email and Internet Usage • Confirming no expectation of Privacy or Confidentiality

6. More about Privacy Claims- Public Colleges & University Employees • Does Employer have reasonable expectation of privacy • Balance employee: interest against Employer’s legitimate interest in managing college/university workplace • Non-investigatory, work-related searches of office desk, cabinets, et. May be a legitimate intrusion that does not require a warrant • Key Consideration – Operation realities of the workplace

7. More about Privacy Claims – Private Institution of Higher Education Four recognized privacy claims that may emerge in the workplace • Intrusion upon Seclusion • False Light claims • Appropriation of Name or Likeness • Public Disclosure of Private Facts

8. Off The Job Conduct • The At-Will doctrine may permit employers to terminate Employees for off-duty conduct. • Employees engaged in romantic relationship may have protection under the invasion of privacy tort. • Some Public Sector positions of employment may permit employee disciplinary action for romantic relationship in the workplace

9. Leave Administration and the Law Family and Medical Leave Act (FMLA) • Signed into Law in 1993 by President Bill Clinton to help workers manage the responsibility of life and look • 12 weeks of unpaid, job protected leave in a 12-month period: • To recover from a serious medical condition • Provide care for a family member with a serious medical condition • Care for a child

10. Leave Administration and the Law - FMLA • Qualified Employer – Employee with 50 or more employees and may include colleges, universities and companies • Calculation of the 12 work weeks of unpaid leave is critical. Employers may use various methods to determine the 12 months in which the 12 weeks of leave occurs • 26 work weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness

11. Leave Administration and the Law - FMLA • Serious Health Condition – means illness, injury impairment, physical or mental condition • Condition such as the common cold, flu, headaches, dental problems are not serious health conditions unless complications are involved • FMLA leave available for pregnancy or birth of a child

12. Leave Administration - ADA • Americans with Disabilities Act Requires University to make reasonable accommodation for: • Physical and mental limitations • Otherwise qualified employee • Unless to do so would impose undue hardship on business operations

13. Leave Administration under the ADA • College or University employer should consider the following: • What is meant by undue hardship • Allowing Employee to work part-time might not be undue hardship; indefinite Leave of Absence is not a reasonable accommodation • Employee and campus employee might reach mutual agreement to acceptable accommodation • Employee returning from leave may be considered for equivalent or lower available position • Further accommodations not required if no vacant position available at the lower level

14. Leave Administration - USERRA • The uniform services Employment and Reemployment Rights act is Federal Law that protects Veterans’ employment and reemployment rights. • Uniform Services is defined to include the • Army, Navy, Airforce, Marine Corps and Coast Guard • The Reserves • National guard • Employee may return reemployment rights for five (5) years for performing service in any branch of the Uniform Services

15. Leave Administration - USERRA • Employee must have maintain a pre-service civilian job • Given College or University employer notice (oral or written) of intent to leave to perform uniformed services • Not exceed 5 year limit – critical • Employee must be released with disqualifying discharge • Timely application for reemployment critical

16. A Word About Workers’ Compensation Laws • A viable basis for employee Leave of Absence where has sustained work-related injury • Workers’ Compensation is paid compensation for workers who injure themselves on the job; health benefits are not interrupted during recuperation and medical expenses are paid up to certain dollar amounts • Understand that an employee who may be entitled to Leave through several statutes (FMLA, ADA, etc.) may be may have leave run currently. • While injured employee get medical coverage for injuries arising during the course of employment may include: • Prescription drugs • Out of pocket expenses for “medical drugs”

17. A Word About Workers’ Compensation Laws • Interesting note: the increased use of medical marijuana raises interesting questions about workers’ compensation coverage