UNDERSTANDING THE BASICS OF EMPLOYMENT LAW

Transcription

1 UNDERSTANDING THE BASICS OF EMPLOYMENT LAW Presented By: Brian M. O Neal McMahon Berger 2730 North Balls Road, Suite 200 St. Louis, Missouri (314) oneal@mcmahonberger.com November 14, 2015 This material has been prepared for information purposes only and does not constitute legal advice. It is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers should seek professional legal counsel before acting upon any information contained herein. 1

2 I. HIRING A. Job Descriptions/Qualifications 1. Why are job descriptions important? a. As a resource for hiring, both in determining the minimum qualifications for a job and putting the employee on notice of what is expected of them. b. As a guide for physicians to use in pre-employment and return-towork physical examinations. c. Provide companies with a legal defense to challenges which can arise under the Equal Pay Act, The Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, and The Americans with Disabilities Act, among others. d. Help supervisors focus on prioritizing the duties and responsibilities of the position in relation to the overall mission and goals. 2. Tips for drafting job descriptions B. Advertisements a. Describe physical and mental demands of job. b. Include objectives to measure performance. c. Ensure the essential functions contained in a job description are clearly identified. 1. Employers should avoid sex-reference language in job titles (i.e., server instead of waitress ). 2. Employers must avoid language that explicitly or implicitly suggests a preference for a particular race, color, religion, national origin, sexual orientation, sex, or age group unless such preference is a bona-fide occupational qualification 3. Use equal opportunity employer language C. Interviews 1. Prior to the interview, the employer should a. Devise a list of questions that are as objective as possible and job related 2

3 b. Provide specific guidelines and appropriate training for interviewers c. Monitor the interview process for discriminatory effects 2. Specific considerations during interviews a. Harassment b. Discrimination c. ADA (1) The EEOC issued guidelines for employers on what kinds of inquiries are illegal under the ADA (2) Inquiries are illegal if they seek to, or are likely to, elicit a response that requires disclosure of the existence, nature, or severity of a disability. Questions concerning the employee s abilities, including the ability to perform the job are allowed. Thus, the way the employer asks the question is often the key to determining whether an inquiry is prohibited or allowed. (3) Accommodations for hiring process Employers are allowed to ask applicants to identify if they will need reasonable accommodations for the hiring process. (4) Attendance The employer may state the attendance requirements, such as no more than one absence per month, and ask if the attendance requirements can be met. In this way, the employer avoids making direct inquiry about a potential disability, and instead focuses in on the information desired. (5) Ability to perform job-related functions The employer may describe the job functions and then inquire about whether the individual can perform the job. d. What Can I Ask? (1) What were your job duties in your prior job? (2) What type of work do you like the least and why? (3) What was the most difficult work for you? (4) What types of work do you like best? (5) What is the easiest work for you? (6) Have you ever been disciplined or counseled or warned in previous jobs? 3

4 (7) What type of machines are you familiar with? (8) What experiences have you had in working with (fill in)? (9) What skills do you have that would assist you in performing the job? (10) How would you describe the quality of your work? (11) How would you describe your organizational skills? II. TESTING A. In general, skill and performance testing can be performed so long as the test is job-related and is not designed to have a disparate impact on persons in legally protected classes. 1. If a test has an adverse impact on persons in a protected group, then the company MUST be able to establish the job-relatedness of the test. 2. Examples: typing, driving, map reading, programming; oral/written tests of job knowledge; intelligence; aptitude. B. Medical examinations 1. Pre-Employment medical tests a. Prior to making a job offer to an applicant, no test can be conducted if it is considered a medical test. 2. Post-Offer medical tests a. Medical tests may be conducted at the post-offer, pre-employment stage. b. Medical testing must be consistently applied to particular positions designated for testing and tailored carefully to gather only the necessary information. c. Tests or selection criteria may not be used if they would exclude disabled individuals from consideration, unless they are job-related and consistent with business necessity. In order to be considered proper, the tests must be related to essential functions of the position at issue. The employer also must provide reasonable accommodations for the testing procedures to assure that the only thing being tested is the essential functions, and not peripheral skills that are affected by disability, but not essential for the job. In addition, if the ability to perform the function itself requires an accommodation, even if related to an essential function, the 4

5 employer may not exclude the applicant from consideration because of the requirement of an accommodation. C. Personality tests - Psychological and personality tests are risky but generally permissible so long as the test is used to determine such things as motivation, honesty, tastes, habits, leadership skills, and personality. If the test is geared toward measuring mental health, then it is a medical test that may be performed only after an offer has been made. Psychological evaluations are medical tests if they provide evidence that would lead to identifying a mental disorder or impairment. D. Drug tests - Testing for the use of illegal drugs is permissible under the ADA. This is because the current use of illegal drugs is not protected by the ADA. Tests should be done at the post-offer, pre-employment stage. E. Criminal background checks 1. EEOC guidelines - Beware of current EEOC focus on claims that background checks are being used by employers to discriminate against minorities. Convictions used to disqualify individuals should be related to the job at issue. 2. Ban the Box Laws some states and municipalities are passing measures that, with limited exceptions, prevent use of criminal background checks or asking about criminal history until after a conditional offer of employment has been made. III. GENERAL PRINCIPLE - EMPLOYMENT AT-WILL. A. Under Missouri s employment at-will doctrine, in general, an employer can discharge an at-will employee for any reason or no reason. As discussed below more and more statutory and common law exceptions to the at-will employment doctrine have been created over time. 1. Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985) 2. Johnson v. McDonnell Douglas Corporation, 745 S.W.2d 661 (Mo. banc 1988) IV. SOME EXCEPTIONS TO THE GENERAL RULE - THE MINES TO AVOID: A. The Federal Level: 1. Title VII of the Civil Rights Act of 1964 ( Title VII ), 42 U.S.C. 2000e et seq. Prohibits employment discrimination based on race, color, religion, sex, or national origin. a. Applies to employers with 15 or more employees. 5

6 b. EEOC has recently focused on preventing sex orientation discrimination through application of Title VII. 2. Age Discrimination in Employment Act of 1967 ( ADEA ), 29 U.S.C. 621 et seq. Prohibits (with certain exceptions) employment discrimination against persons at least 40 years of age. a. Applies to employers with 15 or more employees. b. High but for causation threshold must be met by employee asserting ADEA claim 3. Americans with Disabilities Act ( ADA ), 42 U.S.C et seq. Prohibits discrimination against qualified individuals with a disability. a. Applies to employers with 15 or more employees. b. ADA was amended effective Jan in such a manner as to make it easier for employees to establish a disability. 4. Civil Rights Act of Revised 42 U.S.C (originally passed after the Civil War) to provide a cause of action for discrimination during employment on account of race and enacted 42 U.S.C. 1981a to provide a jury trial and expanded remedies for Title VII and ADA cases, including the recovery of compensatory and punitive damages. 5. Family and Medical Leave Act of 1993, 29 U.S.C et seq. Provides for up to 12 weeks unpaid leave due to, among other things, an employee s serious health condition. Prohibits discharge or discrimination and permits recovery of backpay, liquidated damages and attorneys fees. a. Applies to employers with 50 or more employees within a 75 mile radius. b. To be eligible, employee: (1) Must have been employed for 12 months; and (2) Must have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave. c. Employer required to reinstate the employee to the same (or substantially equivalent) job upon return to work. 6. Employee Retirement Income Security Act of 1974 ( ERISA ), 29 U.S.C et seq. Section 510 prohibits discharge or discrimination for exercise of rights under employee benefit plans. 6

7 7. Pregnancy Discrimination Act. Prevents discrimination on the basis of pregnancy, childbirth, or related medical conditions. Note that pregnancy, in and of itself, is not currently a disability under the ADA. B. The State Level : 1. Missouri Human Rights Act, R.S.Mo et seq. Prohibits employment discrimination on account of race, color, religion, national origin, sex, ancestry, age or disability. Plaintiffs may recover actual damages, back pay, emotional distress damages, and punitive damages. a. Applies to employers with 6 or more employees. b. Employee friendly contributing factor standard now applies to MHRA discrimination and retaliation claims. c. MHRA does not currently provide explicit protection against sex orientation discrimination. 2. Common Law Wrongful Discharge. In 2010, Missouri recognized a narrow public policy exception to the at-will employment doctrine. a. Employee must establish he was discharged for refusing to perform an illegal act or that he was discharged for complaining about an allegedly unlawful activity. b. Employee must rely on a sufficiently specific constitutional provision, statute, or rule or regulation promulgated by a governmental body in support of such a claim. The provision must constitute a well-established and clearly mandated public policy. c. Similar to MHRA claims, the employee friendly contributing factor standard applies to common law wrongful discharge claims. d. Employees can assert such claims in court without the necessity of first filing a Charge of Discrimination with the EEOC or Missouri Commission on Human Rights. 3. Service Letter, R.S.Mo Upon proper request (which does not include the request from an attorney), the employer must advise the former employee as to the nature and character of services rendered,... the duration thereof, and truly state for what cause, if any, such employee was discharged or voluntarily quit. Employee may sue for compensatory damages related to violation of the service letter statute (and potential nominal and punitive damages if service letter is not issued by the employer). Commonly, used as a tactic by employees and their attorney before filing a Charge of Discrimination or lawsuit in effort to pin down the employer at an early stage as to specific reasons for a discharge. 7

8 4. Breach of Contract Employees can assert claims based on an employment contract entered into with the employer which may provide employment for a specific number of years, discharge only for certain reasons, etc. In general, handbooks containing general informational policies are not contractually binding in Missouri in the absence of a definite offer, acceptance and consideration. A key to avoiding implied contract status in employment documents is maintaining an escape clause which reserves the right to modify, specifies employment is at-will for both parties, and uses a signed acknowledgment form with disclaimers and at-will statement. V. EMPLOYEE HANDBOOKS A. Personalize to the Company B. Is a Policy Right for the Company? 1. Ask yourself: Does the policy: a. Clarify an employee benefit or service? b. Inform employees of their responsibilities? c. Help reach sound management decisions on difficult issues? d. Increase consistency in decisions? e. Delegate effectively? f. Reduce legal exposure in personnel matters? g. Implement an organization objective? C. Consider the following when creating handbooks: 1. Anti-discrimination/harassment policy should not commit employer to additional obligations above and beyond what is required under the law. 2. Whistleblower policy such a policy is more important now in light of the increase in common law wrongful discharge litigation. It is also helpful to establish process for investigating potential ethics violations. 3. Employee Benefits provisions refer to any applicable plan documents. Handbook should not promise employees benefits that are inconsistent with plan documents. 4. Attendance - set attendance expectations and clear procedure for employees to use for notifying managers of absences. Before providing for discharge after a certain amount of unexcused absences, etc., make 8

9 sure company is ready to handle administrative burden related to enforcing such an attendance policy in a fair and consistent manner. 5. Discipline - Don t limit the company s right to discipline or terminate. Even if the company want to use progressive discipline, it is important for the employer to reserve the right to skip disciplinary steps and proceed directly to discharge depending on the severity of an offense. 6. National Labor Relations Board Be aware of language that the NLRB has recently indicated violates the National Labor Relations Act rights of employees to engage in concerted activity with respect to wages, hours, and other terms and conditions of employment. For example, avoid blanket promises of confidentiality with respect to company investigations and avoid overbroad language (ex. telling employees to be respectful or nice ) when explaining how employees should behave in the workplace. 7. At-Will Employment confirm that employees are at-will employees subject to discharge for any lawful reason. Indicate that at-will nature of employment can only be changed in writing by certain high level member(s) of management. 8. Amendments - Reserve employer s right to amend handbook at any time and clarify that the handbook is not a contract. VI. DISCIPLINE AND DISCHARGE A. Act fairly and in a reasonable manner important to a jury. Key principles to follow: 1. Helps if employee had been previously put on notice that conduct was unacceptable and would not be permitted/tolerated. a. notice through published policies, rules and handbooks. b. documented and/or witnessed conversations with the employee. c. Prior counseling, written warnings, etc. acknowledged by employee in writing. 2. The challenged practice by the employee was a reasonable practice for the employer to prohibit. a. Jurors dislike unreasonable rules/unilateral actions. b. Cannot be assured that trial court or appellate court will reverse a jury verdict even if there was no real proof of discrimination or wrongful termination. 9

10 3. Decision was knowingly made based on all facts. a. Establish an adequate investigation. b. Present co-worker statements and/or affidavits prepared at the time of the event. c. Establish that the employee was provided with notice and an opportunity to respond, (i.e. due process) prior to the termination. d. Avoid the quality of the investigation from becoming the focus of the trial. 4. Establish the violation by the employee. a. While the employee has the burden of proof, it is critical that the employer be able to document and establish the legitimate, non-discriminatory reason for discipline or discharge. b. Avoid swearing matches between employee and the employer; document, document, document! 5. Establish employee was treated consistently. a. Fairness implies equal, consistent treatment for all employees for the same offense. b. Employee will typically focus on different treatment for similarly situated employees as a means to avoid confronting the consequences of his/her actions. c. Jury often is willing to infer discrimination or wrongful termination from different treatment despite the justification to the contrary by the employer. 6. Rely on previous discipline that led up to discharge. a. Less likely to infer discrimination or wrongful termination if employee was provided with multiple chances to correct bad behavior or attendance problems. b. Poor employees rarely own up to the shortcomings in their performance. Good documentation will help contradict a story by the employee that he/she was the model employee. c. Past discipline will cast doubt on employee s credibility or sympathy. 10