Employment Law Update

Transcription

1 Employment Law Update March 1, W. Monroe Street, Suite 630 Chicago, IL

2 Who we are Tristan & Cervantes offers clients comprehensive legal services in business and litigation Our firm specializes in the following practice areas: Labor & Employment Law Commercial Litigation Construction Law Corporate Law Commercial Transactions Real Estate Zoning & Land Use Condominium Law Landlord-Tenant Law Estate Planning Government Affairs Business Licensing & Administrative Law

3 Our Team Homero Tristan, Founding Partner Pedro Cervantes, Managing Partner Norma Manjarrez, Associate Mario Treto, Jr., Associate Karyn Vanderwarren, Of Counsel

4 Speakers Homero Tristan Mr. Tristan represents employers in a variety of employment disputes, including discrimination, harassment, retaliation, wage and hour, and other claims under both federal and state law. Mr. Tristan has been recognized for excellence in Employment & Labor Law by Illinois Super Lawyers (2009 and 2010). Norma Manjarrez Ms. Manjarrez specializes in representing management in a variety of labor and employment matters, including enforcement of collective bargaining agreements and defending allegations of disability discrimination, retaliatory discharge, sexual harassment, and violation of wage and hour and wage payment laws.

5 Agenda I. Employment Law Update II. Employment Process III. Key Employer Policies & Practices IV. Employment Relations

6 I. Employment Law Update Illinois Law Developments

7 Illinois Law Developments Right to Privacy in the Workplace Act Amendment ( Facebook Law ), 820 ILCS 55/10 Requesting or requiring password or other account information in order to gain access to a current or prospective employee s account or profile on a social networking website is unlawful Employer is prohibited from demanding access in any manner to a current or prospective employee s account or profile on a social networking website Employers who violate the Facebook Law may be hailed into court and may be subject to a $200 fine plus costs, attorney s fees, and actual damages

8 Illinois Law Developments Illinois Equal Pay Act Amendment, 820 ILCS 112/ Officers and agents of a company, who willfully and knowingly evade the Act may now be held accountable when an employer is found to have failed to pay workers equal wages for equal work The Equal Pay Act requires that employees who do the same or similar work receive the same pay Employers found guilty of pay discrimination will be required to make up the wage difference to the employee and may be subject to pay legal costs and civil fines of up to $2,500 per violation

9 Illinois Law Developments Wharton v. Comcast Corp., No. 12 C 1157 (N.D. Ill. 2012) Despite a handbook's contractual disclaimers, a court may find that certain language is sufficient to form an agreement Employees sued claiming the employer violated the federal Fair Labor Standards Act (FLSA), Illinois Minimum Wage Law (IMWL) and the Illinois Wage Payment and Collection Act (IWPCA) by failing to properly compensate employees for overtime at a rate of 1.5 times the hourly rate when they worked more than 40 hours per week The handbook included an overtime policy Court concluded that employment handbooks can create an agreement, even if they don t create a contract Even though this decision looks only to the IWPCA, the potential exists for the ruling to be extended to other statutes and claims

10 I. Employment Law Update Federal Law Developments

11 The National Labor Relations Board Federal agency vested with the authority to enforce the National Labor Relations Act (NLRA) The agency conducts elections, investigates unfair labor practice charges, decides cases, and enforces court orders through civil and criminal contempt litigation With few exceptions, the NLRA applies to all employers involved in interstate commerce Certain groups of employees including managers and supervisors are not covered by the NLRA

12 NLRB Developments Banner Health System, 358 NLRB 1 (2012) Employer instructions to refrain from discussing ongoing investigation may be unlawful The Board held that "to justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees' Section 7 rights" Section 7 rights include the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities Employer has the burden to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up

13 NLRB Developments Social Media Policy Adverse employment action in response to employee postings on social media websites may be a violation of the National Labor Relations Act e.g. Design Technology Group, LLC et al., ALJ found nonunionized retailer engaged in unfair labor practices when it discharged three employees who vented their frustration with being forced to work late on Facebook e.g. Triple Play Sports ALJ found employer unlawfully terminated employees after they participated in facebook conversation regarding the withholding of their taxes One of the employees discharged never commented, but simply liked a co-workers post

14 Social Media Policy Continued Employer violates Section 8(a)(1) of the NLRA when through the maintenance of a work rule the employer would reasonably tend to chill employees in the exercise of their Section 7 rights Walmart (approved by general counsel for NLRB) Prohibited inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct Costco (rejected by Board) Prohibited employees from posting things that damage the company or any person s reputation

15 Social Media Policy Advisement Do not prohibit employees from identifying themselves as employees of your company Do not require employees to request/receive employer approval prior to communicating via social media networks Do not draft prohibitions using generic/broad language DO include a social media policy in your employee handbook DO reference other policies DO include a Savings Clause

16 Equal Employment Opportunity Commission Federal agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information Employers covered include those with fifteen or more employees who worked for the employer for at least twenty calendar weeks in the present or last year Timeliness requirements provide that an EEOC claim must be filed within 180/300 calendar days from the day the discrimination took place

17 EEOC Developments Enforcement Guidance on use of Arrest & Conviction Records Employer s use of an individual s criminal history in making employment decisions may violate Title VII A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability) An employer s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability) Policy must link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position in order to establish it is job related and consistent with business necessity under Title VII

18 EEOC Developments Americans with Disabilities Act Amendments Act (ADAAA) Regulations Broadens the definition of disability making it easier for individuals challenging employment actions under the ADA to establish that they meet the definition of "disability" and are thus protected by the law The Americans with Disabilities Act (ADA) was amended by ADAAA of 2008, effective Jan. 1, 2009 The Equal Employment Opportunities Commission (EEOC) published its final regulations and interpretive guidelines on the ADAAA, effective May 24, 2011 An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population

19 ADAAA Regulations Cont. The ADA, as amended, defines disability as: 1. having a physical or mental impairment that substantially limits one or more of the major life activities of such individual ; or 2. a record of such impairment; or 3. being regarded as having a physical or mental impairment that substantially limits one or more of the major life activities of such individual substantially limits lower threshold than prevents or severely restricts as defined by prior Supreme Court decisions major life activity major life activities include the basic functions of life (e.g. walking, speaking, and working)

20 EEOC Developments EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012) Reassigning a disabled-applicant over a more qualified applicant is not per se unduly burdensome, and may be required Seventh Circuit has joined other circuits in concluding that the ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship Undue hardship is a fact specific analysis

21 II. The Employment Process Job Descriptions

22 Job Descriptions It is recommended that job descriptions include the following: Summary objective of the job overview of the position List of job functions clear, concise description of the most important and essential functions of the job Qualifications education, certifications, licenses, training, and experience necessary to do the job; and, Other information about the position location, working hours/likelihood of overtime, travel requirements, reporting relationships

23 Verifying Employment Eligibility Form I-9 Employment Eligibility Verification Section 1 of the form is to be completed by the employee by his/her first day of work for pay Employers must complete Section 2 of Form I-9 within three business days of the date employment begins Employers are to examine evidence of identity and employment authorization Employers may, but are not required to, photocopy the document(s) presented Employers must retain completed Form I-9s for three years after the date of hire or one year after the date employment ends, whichever is later

24 Verifying Employment Eligibility Employment Eligibility Verification & E-Verify The Immigration Reform and Control Act (IRCA) of 1986 creates employer sanctions for hiring unauthorized workers An employer complies with the requirements of IRCA by completing Form I- 9 Employment Eligibility Verification and by examining evidence of identity and employment authorization A violation of IRCA sections on employment of unauthorized aliens and/or continuing employment of unauthorized aliens may result in a cease and desist order with a civil money penalty Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996 implemented the E-Verify program Available to employers as a way of verifying an employee s eligibility to work in the United States

25 E-Verify Continued Although E-Verify is currently an optional federal electronic employment verification system, discussions of comprehensive immigration reform include a mandate for its use by all private employers Illinois Right to Privacy in the Workplace Act and E-Verify Illinois does not mandate the use of E-verify In 2007 Illinois legislators attempted to ban Illinois employers from using E- Verify Remains available for Illinois employers but enrollment requires DHS training and posting of DHS notices

26 II. The Employment Process Employee Handbooks

27 Employee Handbooks Areas that should be routinely reviewed: At will employment language Employment leave laws Background investigation policies/procedures Social media policies Wage and hour laws Discrimination statutes Internal grievance policies and procedures

28 Employee Handbooks Advantages of having an employee handbook: May serve as evidence in legal defense against an employee claim Communicates employer practices and expectations regarding employee behavior Ensures company policies are in compliance with federal and state laws Informs employees of the benefits provided by employer Answers commonly asked questions, relieving human resources personnel Disadvantage of having an employee handbook: May serve as evidence in plaintiff-employee claim against employer

29 The Top 10 Mistakes Employers Make with Employee Handbooks 1. Not having one at all Remember that employee handbooks are an effective way to communicate employer practices and expectations regarding employee behavior 2. Inadvertently creating contractual rights to employment Although Illinois is an at-will employment state where termination does not require cause, the at-will presumption can be overcome by a poorly drafted handbook

30 The Top 10 Mistakes Employers Make with Employee Handbooks 3. Failing to include a contractual disclaimer At-will disclaimers specify the handbook is not intended to create a contract either explicitly or implicitly 4. Ineffectively communicating the employee handbook provisions The terms of an employee handbook are effective when the employer can prove that they were adequately communicated to the employee

31 The Top 10 Mistakes Employers Make with Employee Handbooks 5. Failing to obtain signed acknowledgment form at time of handbook receipt Acknowledgement forms state that employees have read, understood and are prepared to comply with company policies (further evidence in legal defense against an employee claim) 6. Confusing policy manuals with employee handbooks Employee handbooks are not meant to replace policy and procedure manuals Manuals are meant to provide a step-by-step guide for procedures needed to run the business while employee handbooks are meant to provide employment guidelines to everyone on employment related concerns

32 The Top 10 Mistakes Employers Make with Employee Handbooks 7. Using form handbooks Borrowing a handbook from another source without tailoring it specifically to your business needs poses high litigation risks and costs 8. Failure to review/revise the handbook periodically An employee handbook should be considered a living document Regularly updating the employee handbook will help ensure company policies are in compliance with federal and state laws

33 The Top 10 Mistakes Employers Make with Employee Handbooks 9. Not applying policies consistently Employer handbooks serve as guidelines for both employees and employers as to the expectations each has of the other When policies are not implemented consistently the employer creates high litigation risks and costs for itself 10. Being too specific Detailed statements create the illusion of a contract between the parties (the absolute opposite of what the employer may want)

34 III. Key Employer Policies & Practices Equal Employment Opportunity

35 Equal Employment Opportunity Applicants and employees with equal qualifications and skills must be treated equally Employers must provide valid business reasons for adverse actions Exception exists where qualification is a Bona Fide Occupational Qualification (BFOQ) A Title VII defense allowing an employer to limit a particular job to members of one sex, religion, or national origin group Under the ADEA, age limitation must be necessary to the performance of the duties of the position

36 III. Key Employer Policies & Practices Race, Sexual Harassment, and Retaliation

37 Discrimination on the Basis of Race Prima Facie Case: presumption of discrimination (direct method) 1. Protected class 2. Qualified for position 3. Adverse employment action 4. Circumstances indicating discrimination Legitimate non-discriminatory reason for employment decision (burden shift) Pretext for discrimination on the basis of protected category (burden shift)

38 Sexual Harassment Conduct constituting sexual harassment: Unwanted and unwelcome verbal or physical conduct that is sex-based or of a sexual nature Requests for sexual favors Offensive third-party conduct to which victim is subjected Examples of sexual harassment: Abusive language Offensive posters/calendars Vulgarity Certain touching Propositions Intimidation

39 Sexual Harassment Sexual harassment can occur: At the workplace Off premises at employer sponsored events Off premises at non-sponsored events

40 Sexual Harassment Two types of sexual harassment: Hostile Work Environment Quid Pro Quo

41 Hostile Work Environment Prima facie case: 1. subjected to unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; 2. conduct was severe or pervasive enough to create a hostile work environment; 3. conduct was directed at complainant because of sex; and 4. there is a basis for employer liability

42 Prima Facie Case: Elements of High Risk Severe or pervasive enough to establish hostile work environment Objective and subjective tests A fact intensive analysis Basis for employer liability (vicarious liability) Supervisor Negligence either in discovering or remedying the harassment Unwelcome v. Consensual Opposite and same sex

43 Quid Pro Quo Plaintiff must show that he/she was subjected to unwelcome sexual advance(s), request(s) for sexual favor(s) or other verbal, visual or physical conduct of a sexual nature and: Submission to the conduct was made either explicitly or implicitly a term or condition of the complainant s employment; or Submission to or rejection of the conduct by the complainant was used as the basis for employment decisions affecting the complainant

44 Sexual Harassment Responding to sexual harassment complaints: Listen, do not judge Explain why requests to do or say nothing cannot be honored Take notes, if possible Contact appropriate person (HR) immediately Be objective and stick to the facts Keep information gathered confidential Note, documents prepared in connection with complaint can be discoverable in lawsuit

45 Retaliation Prima facie case: Direct method of proof 1. Statutorily protected activity; 1. Participation clause 2. Opposition clause 2. Adverse employment action; and 3. Causal connection between the two Indirect method of proof 1. Statutorily protected activity; 2. Complainant met the employer's legitimate expectations; 3. Adverse employment action; and 4. Complainant was treated less favorably than similarly situated employees who did not engage in statutorily protected activity

46 III. Employment Relations Monitoring Performance & Progressive Discipline

47 Monitoring Performance Performance Meetings Objective facts, not merely conclusions Address performance issues in a timely fashion Explain your expectations to the employee Consider legitimate explanations for performance issues Document meetings including the name of parties in attendance, date, issue addressed and expected performance Performance Evaluation Cite specific facts to support conclusions (i.e. facts gathered during performance meetings) Use similar criteria to evaluate similarly situated employees

48 Progressive Discipline Purpose of Discipline Unsatisfactory performance Attendance issues Violations of policy Basics of Discipline Investigation Fair & impartial Timeliness Advance Notice Documentation Consistency

49 Progressive Discipline Determine whether discipline is appropriate: Identify whether there is an applicable policy or standard Determine whether the policy or standard is reasonable Compare employer s past practices with proposed discipline Determine whether an investigation has been made (if necessary) If so, determine the appropriate type of discipline: Compare employer s past practices with proposed discipline Examine the employee s prior record Consider the severity of the offense

50 Progressive Discipline All discipline should: Clearly identify the issue(s) Identify corrective action Indicate the next step of discipline Summarize the employee s version of the incident Be written, signed and dated

51 Termination Pre-Separation Preparation Witnesses Final Paycheck Severance Package Separation Meeting What to say What not to say Post-Separation Preparation Termination letter Final compensation/paycheck Personnel record

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