Laws spanning the career of employee

1. Laws spanning the career of employee Michelle K. Brackin, SPHR Auxiliary Services Corporation Human Resource Manager

2. Quote • Somewhere in your career, your work changes. It becomes less anal, less careful and more spontaneous, more to do with the information that your soul carries. Ben Kingsley

3. Recruitment • Equal Opportunity Employment • Do not discriminate based race, color, national origin, religion, veterans status, age, disability, marital status, gender, *genetic predisposition, *carrier status, or *sexual orientation and Victim of domestic violence

4. Recruitment • Cast a wide net • Bona Fide Occupational Qualifications

5. Recruitment • Application • Interview • Tests

6. Case Study • $300,000 for wrongful discrimination • A law firm reneged on a job offer to attorney Jill Carmichael because of her gender. She had worked part-time for the firm from 1989 to 1991 while she was attending law school. Carmichael claims that in 1991 she left the firm temporarily to study for the bar exam, and she asked a senior partner to consider her for a position as associate, and he said he would. • However, after she passed the exam in 1992, she learned that the firm had hired a male attorney who was not even licensed to practice law in Massachusetts. She also learned that, at a meeting to discuss her application for an attorney's position, the senior partner stated that he felt that her priorities were elsewhere -- with her family -- and that had he known that she was pregnant at the time he hired her in 1989, he would not have hired her in the first place.

7. Background Check • Negligent Hiring • Criminal History

8. Employment at will • At-will employment is a non-contractual employment relationship between employer and employee, where either party can terminate the relationship without notice, at any time, and for any reason not prohibited by law.

9. Case Study • Toussaint v. Blue Cross Blue Shield of Michigan The hiring official stated to Toussaint that employment will continue “as long as he did his job.” In addition, the handbook stated that employees would only be dismissed for “just cause”.

10. Immigration and Naturalization Control I-9 • All employees must produce documentation to establish their identity and eligibility to work in the United States.

11. Paying your employees • Equal Pay • Fair Labor Standards • Minimum wage • Overtime • Exempt • Compensatable time • Garnishments • Tips

12. Safety in the Workplace • OSHA – General Duty Clause • Workers’ Compensation

13. Case Study • MS Contract Services was fined $77,000 by OSHA after an employee lost both legs when a meat grinder he was attempting to clean that was started up by another employees.

14. Hostile Work Environment • Harassment which creates a hostile or offensive environment for members of one group ….a requirement that a man or woman run a gauntlet of abuse in return for the privilege of being allowed to work and make a living can be demeaning and disconcerting …..”

15. Hostile Work Environment • Unwanted; based on the victim’s perspective • Changes work conditions • Based on protected criteria • Severe/multiple occasions • Quid Pro Quo

16. Case study • The EEOC announced a quarter-million-dollar settlement of a racial harassment lawsuit against Sun Ag, Inc., a major citrus grower. Fla. The suit charged the company with subjecting African-American employees to a racially hostile work environment over a number of years, which included threatening remarks, displaying of a hangman's noose, and racial slurs by supervisors and co-workers. According to the suit, filed on September 30, 1999, a hangman's noose was prominently displayed as early as 1992 in the company's stockroom. On one occasion, a co-worker told Mr. Davis that the noose was used to hang black people and that he was going to take down the noose and hang him personally.

17. Religious accommodation • Non-discrimination • Reasonable accommodation • Undue hardship

18. Case study • An employee held that she was required by her religion to wear a button picturing a human fetus and an anti-abortion message. The judge ruled that her religion required her to wear the button, but not display the image so she could cover it up during the work day.

19. Case study • Paul LaViolette was a patent examiner for the US Patent Office. He alleged that he was fired in April of 1999 for his belief in aliens that were posted on his personal website. The courts stated that “ a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption . . . ." is a religion.

20. Benefits • No legal requirements to offer benefits – health insurance, vacation, sick time, pension • Discrimination based on highly-compensate employees vs. lower paid employees • Discrimination based on protected criteria • Handbook/Policy • COBRA

21. Case Study • January 16, 2006-Howard Baugh grew up next door to Martin Luther King Jr. and joined the Atlanta Police Department in 1953 as its 12th black recruit. Mr. Baugh and the other African-American retirees say that early in their police careers, they were blocked from participating in a state-backed supplemental retirement fund because of their color. As a result, Mr. Baugh says, he receives about $700 less each month than white officers who signed up at he same time.

22. Leave of Absence • Family Medical Leave Act • Serious Medical Condition • Must have 50 of more employees • 12 weeks unpaid leave • May not interfere with FMLA rights • Return to the same position • Pay employer’s portion of health insurance • Other leaves of absences • Jury/witness duty • Bone marrow donation

23. Case Study • A restaurant dining room supervisor was notified she was being replace on the day she returned from Family Medical Leave. During her absence, the manager of the restaurant was transferred. The employer contended that the changes were needed because the restaurant was poorly managed. The courts held that the proximity of the adverse action establish a causal connection.

24. Off Duty Legal Activity • NYS – prohibit employer from discriminating against employees for lawful, off-duty activity • Political and consumable products • Unless it materially interferes with the employer’s business interest, conflict of interest or moonlighting contracts.

25. Case Study • Two Walmart employees, one married and the other was not, were dating. Walmart has a policy against married employees dating other employees. They were fired. They argued that under the lawful recreational activity law this was against the law. The courts rule that dating is entirely distinct from “recreational activity.

26. Case Study . Michigan company (Weyco, Inc.) to require its employees to "maintain a smoke free and tobacco free status at all times City of San Diego v. Roe, 125 S. Ct. 521 (2004) (city's termination of police officer for his off-duty appearance and performance in lawful sexually explicit videos did not violate the First or Fourteenth Amendments); • Melzer v. Board of Educ. of N.Y. City School Dist -school board's termination of public school teacher for his lawful off-duty membership in, and advocacy efforts on behalf of, a pedophilia organization North American Man/Boy Love Association • Curay-Cramer v. Ursuline Academy -firing of a teacher from her position at a Roman Catholic high school did not violate Title VII, where teacher was terminated for her off-duty public support of abortion rights • Lawsuit by a Winn-Dixie truck driver who was fired for his off-duty cross-dressing

27. Privacy in the Workplace • Fingerprinting • Lie Detector • Telephone/Email • Mail • Lockers • Video Surveillance (without sound) • Internet access/Computer files • Public/Private employers • Employee Information

28. Case Study • In Ithaca, NY, Local McDonald’s the employer listened to an employee’s voice mail. The message was from a girl friend to the male manager. The employer shared the message with the Manager’s wife. Case was settled out of court. But the issue was interception of verbal communication and expectation of privacy.

29. Retaliation • OSHA, Civil Rights, FMLA, ADA, FLSA, SEC, regulatory agencies (Health Dept.) • Participating in many government investigations

30. Defamation • References for former employees • What your employees say

31. Case Study • Two Dollar General Store employees were assisting customers when they witnessed a man exposing himself. They thought the man was Sonny Poole, who was in the store and purchased some juice. DNA test exonerated Mr. Poole but the employees had widely disseminate that he was the flasher. Dollar General was order to pay $500,000 to Mr. Poole for defamation.

32. Remember • Don’t make employment decisions based on things the employee cannot change. • Be consistent by treating all employees the same in the same situation • Treat employees as you would want to be treated