Gibbel Kraybill & Hess LLP presented these materials at its annual Employment Law Seminar to review current issues in employment law.

Transcription

1 to review current issues in employment law. As each employment situation is unique, these contact an employment law attorney at Gibbel Kraybill & Hess to discuss a specific

2 Welcome to 2013 Employment Law Breakfast P r e s e n t e d b y : J e f f W o r l e y D w i g h t Yo d e r Ti m S h a w a r y n Gibbel Kraybill & Hess LLP presented these materials at its annual Employment Law Seminar to review current issues in employment law. As each employment situation is unique, these materials are not intended to be relied upon for specific employment decisions. Please contact an employment law attorney at Gibbel Kraybill & Hess to discuss a specific

3 EEOC STATISTICS 2012 Total EEOC charges for 2012: 99,412 - Compare 2011: 99,947 Race 33% Gender 30% Retaliation 38% Disability 26% Age 23% Gibbel Kraybill & Hess LLP presented these materials at its annual Employment Law Seminar to review current issues in employment law. As each employment situation is unique, these materials are not intended to be relied upon for specific employment decisions. Please contact an employment law attorney at Gibbel Kraybill & Hess to discuss a specific

4 NLRB National Labor Relations Board Engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection This includes, and goes beyond employees right to form unions

5 NLRB The act applies to Private employers who have an impact on interstate commerce-but does not apply to public employers, railway and airlines and individuals employed as agricultural laborers

6 NLRB Internal Investigations Banner Health System - An employer cannot require blanket confidentiality pending an internal investigation regarding workplace misconduct Unless the employer can show that it is warranted in under the specific circumstances, i.e. to prevent fabrication of testimony, to prevent witness intimidation or the loss of evidence Otherwise, a requirement of confidentiality infringes on an employee s right to discuss with co-workers the terms and conditions of employment

7 Social Media & the NLRB Social media is the new water cooler

8 Social Media Cyber Intelligence Sharing and Protection Act -Amendment to restrict employers from requiring employees to share social media passwords was blocked by Congress Under PA law you can require an employee to provide you with social media passwords

9 Social Media & the NLRB Employees may engage in protected concerted activity discussions about the terms and conditions of their employment Individual employee rants are not protected - However the fact that another employee comments on the rant may transform the rant into a discussion

10 Social Media & the NLRB What is not protected? JT's Porch Saloon & Eatery Ltd.-Bartender calling customers rednecks; I hope that they choke on broken glass as they drive home drunk Martin House- Mental health specialist stating: My dear client ms 1 is cracking up at my post, I don't know if she[']s laughing at me, with me or at her voices, not that it matters, good to laugh.

11 Social Media & the NLRB What is protected? Speech (posts) with the intent to induce group action is protected Hispanics United of Buffalo- Employee asks: My fellow co-workers how do you feel? (explicative laden responses follow)

12 Social Media & the NLRB An employer cannot completely restrict employees rights to discuss wages, workplace conditions, and employee or company performance An employer can restrict an employee from discussing confidential information such as trade secrets or intellectual property

13 Social Media & the NLRB Employers retain the right to enforce general workplace policies addressing matters such as sexual harassment, discrimination and workplace violence

14 Violence in the Workplace Employers should have a specific policy in place that addresses workplace violence and provides information as to how to report threats

15 Weapon Policy Employers should have a policy that addresses weapons in the workplace Employers can prohibit weapons anywhere on site, including in an employee car parked on employer parking lots

16 Pre-Employment Considerations Disability issues Drug screens Credit reports Criminal background checks Social media

17 Americans with Disabilities Act Pre-employment offer you may - Tell the employee about the essential functions of the position and ask if they can perform the job. - However, do not ask question that would reveal the existence of a disability. - You must provide a reasonable accommodation to allow the employee to interview, i.e. sign language interpreter, access to the site of the interview

18 Americans with Disabilities Act Post-offer of employment you may: - Require the employee to undergo a physical A post-offer examination or inquiry does not have to be job-related and consistent with business necessity However, any employment decisions based upon the results must be consistent with business necessity - You may also ask questions that would reveal the existence of a disability provided that you ask all applicants these questions - You must be sure that all medical information related to employees and applicants remains confidential

19 Drug Screenings Tests for illegal drugs are not subject to the ADA s restrictions on medical examinations You may require applicants to take and pass a drug screen Remember that you must be consistent as to all applicants and employees

20 Credit Report Must comply with the Fair Credit Reporting Act Provide notice to the employee Receive written permission to conduct a credit report - State clearly that the authorization continues throughout the person s employment

21 Credit Report Before you take an adverse action based upon a credit report you must - Provide to the individual a copy of the report - Provide the individual with a copy of the summary of rights under FCRA

22 Credit Report Providing the individual with a copy of the report is required by law. This gives the individual the opportunity to review the report and make sure that it is correct. It is advised that you provide the employee with notice prior to taking the adverse action so that they have an opportunity to alert you if the report is not correct.

23 Credit Report After you take an adverse action you must provide to the individual an adverse action notice that includes: - the name, address, and phone number of the consumer reporting company that supplied the report; - a statement that the company that supplied the report did not make the decision to take the unfavorable action and can t give specific reasons for it; and - a notice of the person s right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if the person asks for it within 60 days.

24 Investigative Reports Employers who use investigative report reports based on personal interviews concerning a person s character, general reputation, personal characteristics, and lifestyle have additional obligations under the FCRA. These obligations include giving written notice that you may request or have requested an investigative consumer report, and giving a statement that the person has a right to request additional disclosures and a summary of the scope and substance of the report.

25 Disposing of Credit Reports You must take steps to ensure that the report is disposed of in a manner that it cannot be viewed by other, i.e. shred it. Do not simply throw it in the trash.

26 Criminal Background If part of a credit report then you must follow the requirements of the FCRA If it is a requirement under law, i.e. school, then you are not required to follow the requirements under the FCRA Gibbel Kraybill & Hess LLP presented these materials at its annual Employment Law Seminar to review current issues in employment law. As each employment situation is unique, these materials are not intended to be relied upon for specific employment decisions. Please contact an employment law attorney at Gibbel Kraybill & Hess to discuss a specific

27 Criminal History What can an employer consider - According to the EEOC an employer should only consider criminal backgrounds that are relevant to the position. Examples: theft for a retail position, DUI for a driving position, those offenses as mandated by law for child care positions. - You should also consider the time between the offense and the application for employment Gibbel Kraybill & Hess LLP presented these materials at its annual Employment Law Seminar to review current issues in employment law. As each employment situation is unique, these materials are not intended to be relied upon for specific employment decisions. Please contact an employment law attorney at Gibbel Kraybill & Hess to discuss a specific

28 to review current issues in employment law. As each employment situation is unique, these contact an employment law attorney at Gibbel Kraybill & Hess to discuss a specific