Presented by Jim Nys, SPHR, MPA Personnel Plus! Consulting Services, Inc. Personnel Plus! Consulting Services, inc.

Transcription

1 Labor Law & Risk Reduction Strategies Presented by Jim Nys, SPHR, MPA Personnel Plus! Consulting Services, Inc. EEO Overview The Civil Rights Act of 1964 prohibits employment discrimination against any individual on the basis of his/her: Race and Color and Physical characteristics and Skin color; National Origin Religion Gender ADEA, EPA, GINA, ADA, PDA also apply 1

2 Montana Coverage Montana covers virtually all employers Montana Protects all the federal bases of discrimination listed above (except genetic discrimination). Additionally, Montana individuals from discrimination based on marital status, all ages and, for public employees, political belief. Definitions of Montana Protected Classes Marital Status includes the occupation and Identity of a spouse Age includes all ages except where a licensing or child labor law applies Forms of Discrimination Discrimination includes but is not limited to: Different Treatment Adverse Impact Harassment Failing to Accommodate Retaliation Relationship Discrimination Vicarious Liability for actions of supervisors or officials 2

3 Reasonable Accommodation Prior to refusing employment or making a distinction in terms, conditions or privileges of employment because of the disability, an employer MUST engage in an interactive conversation to assess whether any reasonable accommodation would allow the person to perform the essential functions of the job. Leave may be a reasonable accommodation The Reasonableness of an accommodation is based on cost, safety and efficiency considerations Americans With Disabilities Act Disability Defined: A person may be an individual with a disability if they: Have a physical or mental impairment that substantially limits one or more major life activities, OR; Have a record of such an impairment, OR; Are regarded as having such an impairment The determination of whether a person has a disability is made regardless of the use of a mitigating measure 3

4 Harassment Harassment includes unwelcome verbal or physical conduct when: Submission is implicitly or explicitly made a term or condition of employment Submission is used as the basis for an employment decision affecting the individual, or The conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Perpetrators can be citizens, vendors, the public Family and Medical Leave To be eligible for FMLA leave, the employee must: have worked for the employer for a minimum of twelve (12) months and; must, during the twelve (12) month period immediately preceding the leave, have worked for at least 1,250 hours 4

5 Eligible employees must be granted up to twelve (12) weeks of for any combination of the following reasons: for the birth or placement of a child and/or to care for a child who has been born, adopted or placed within the previous twelve months, or; for the care for a spouse, child or parent with a serious health condition, or; for a serious health condition that makes the employee unable to perform the functions of the employee's job. Due to a "qualifying exigency" relating to the active-duty status or call to active-duty in the armed forces of an employee's spouse, son, daughter, or parent of the employee, R&R and certain other reasons. An eligible employee will be granted up to twenty-six (26) weeks of FMLA leave to care for a family member or next of kin who is a member of the armed forces 5

6 The Wrongful Discharge Act The Montana Law includes three parallel causes of action: Public Policy - employee refuses to violate public policy or reports a violation of public policy Public policy are policies in effect concerning the public health, safety or welfare established by constitutional provision, statute or administrative rule" Personnel policy - employer violates its own written personnel policies No Good Cause- employer terminates non-probationary employee without good cause Note only the Good Cause clause involves probationary exception The Standards of Good Cause Forewarning - The employee had forewarning the behavior was disapproved by the organization Appropriate rules - The rule, action or employment standard is appropriate and is related to safe, orderly and efficient operation of company Investigation - An appropriate and thorough investigation has occurred and it established prior to the disciplineproof of misconduct to support the disciplinary action Loudermill standard for governmental employers requires opportunity to respond prior to taking action Weingarten Rights may apply to Investigatory interview Be Sensitive to Privacy Rights Drug Testing, Polygraph, audio recordings, etc. 6

7 Good Cause Equal application - Employer applied rules equally where two or more employee are similarly situated Appropriate response Employer took the actions reasonably calculated to cause the behavior to stop and not reoccur in the future Documentation documentation exists that demonstrates the guilt of an employee Documentation Documentation of discharge must be retained at least two years. Informal documentation- supervisor's log: Include name, place, date, brief statement of what happened. Not given to employee or put in personnel file unless: used in decision, shared with another person or treated as permanent record (beyond periodic review). Should contain both positive and negative comments. 7

8 Formal Documentation Used written warnings up through terminations: Date and time of incident. Detailed description of the problem (don t generalize). Implications- why is the problem important to the company? Prior record - does employee have a record of similar behavior in the past? Prior communications - Indicate prior discussions or written communications to the employee. Improvements (or lack thereof) noted since previous communications. Expected solutions - Be specific as to your expectations of change. Don t discuss attitude or initiative or other "traits", instead describe expected solutions in terms of observable behaviors. Action - If you are taking an action, clearly say so. Consequences - Inform the employee of the consequences of not conforming with the expected solution outlined above. Sample language: "appropriate disciplinary action up to and including discharge from employment. Follow-up - If you have established a follow-up date when you will review the employee s record, include that information in the memo. 8

9 Dispute Resolution If an employer has a grievance procedure and provides it to a discharged employee within seven days of termination, the discharged employee must initiate and exhaust the procedure prior to filing suit. If the discharged employee misses the deadline or fails to follow process, the case might end there. An complaint may be filed in district court within one year of termination. Within 60 days of filing the complaint either side can offer arbitration. Questions? 9