Employment Law Seminar May 15, 2008 Palm Beach Gardens Marriott

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1 Employment Law Seminar May 15, 2008 Palm Beach Gardens Marriott (561) Lorraine O Hanlon Rogers Kerry A. Raleigh

2 Managing All The Time: An Overview of Employment Law By: Kerry A. Raleigh

3 The World Is Filled With Acronyms ADA: Americans with Disabilities Act ADEA: Age Discrimination in Employment Act COBRA: Consolidated Omnibus Budget Reconciliation Act ERISA: Employment Retirement Income Security Act FLSA: Fair Labor Standards Act FMLA: Family Medical Leave Act OSHA: Occupational Safety and Health Act KARR: Kerry Ann Raleigh Rules?

4 Number of Employees to Trigger Various Employment Laws Employers with at least 1 employee must comply with; Fair Labor Standards Act (FLSA) Employee Polygraph Protection Act Immigration Reform & Control Act (IRCA) Equal Pay Act Federal Income Tax Withholding Uniformed Services Employment & Re-employment employment Rights Act of 1994 (USERRA) Federal Insurance Contribution Act (FICA) National Labor Relations Act (NLRA) Consumer Credit Protection Act Labor Management Relations Act Uniform Guidelines for Employment Selection Procedures Employment Retirement Income Security Act (ERISA)

5 Number of Employees to Trigger Various Employment Laws Employers with 11 or more employees also need to comply with; Occupational Safety & Health Act (OSHA Illness/Injury Recording and Reporting Requirements) Employers with 15 or more employees must also follow; Pregnancy Discrimination Act Americans with Disabilities Act Civil Rights Act of 1964 Employers with 20 or more employees also need to comply with; Age Discrimination in Employment Act Consolidated Omnibus Budget Reconciliation Act (COBRA)

6 Number of Employees to Trigger Various Employment Laws Employers with 50 employees or more also need to comply; Family Medical Leave Act (FMLA) Finally, employers with 100 or more employees must comply with the; Worker Adjustment Retraining Notification Act (WARN) And must complete and report the EEO-1 1 form to the EEOC (Executive Order 11246, requires federal contractors with 50 or more employees and $50,000 in government contracts must also file EE0-1 1 report each year).

7 FEDERAL DISCRIMINATION LAWS Title VII: Race Color National Origin Religion Sex ADA: Disability or Handicap ADA: ADEA: Age PDA: PDA: Pregnancy

8 DISCRIMINATION LAWS STATE FCRA: Race Color National Origin Religion Sex Age Handicap Marital Status FCRA:

9 DISCRIMINATION LAWS COUNTY Article VI of The Palm Beach County Code Race Color National Origin Religion Sex (defined to include pregnancy discrimination and sexual harassment) Age Disability Marital Status Sexual Orientation Familial Status

10 Attract Attention: Sexual Harassment, Discrimination and Retaliation Policies By: Lorraine O Hanlon Rogers

11 Why is this important? Employment Law and Workplace Statistics: In 2007, EEOC reported the highest number of discrimination charges in five years; Agency obtained $345 Million for victims. Charges of religious discrimination have increased over 67% over the last 10 years. According to the US Census Bureau, almost half of America s population will be non-white by 2050.

12 Why is this important? Employment Law and Workplace Statistics: In 2007, pregnancy-based claims rose 14% to a record high of almost In 2007, sexual harassment filings increased for the first time since 2000, numbering 12,510. A record 16% of sexual harassment charges were filed by men.

13 Workplace Discrimination and Harassment Title VII of the Civil Rights Act --Enforced by Federal Courts and the EEOC --Requires minimum of 15 employees Florida Civil Rights Act --Enforced by FL state courts and the FCHR --Requires minimum of 15 employees Local Municipal Ordinances and Rules --Enforced by local municipalities --Reduced threshold of minimum employees

14 Workplace Discrimination and Harassment What is a Protected Class? At the Federal level - Title VII identifies the protected classes as: Race, Sex, Color, National Origin, and Religion. In addition, the ADA and ADEA protect against discrimination based on disability and age, respectively. In Florida, the FCRA identifies the protected classes as: Race, Sex, Color, National Origin, and Religion, plus marital status. Local Ordinances expand the protected classed even further to include sexual preference, gender identity, marital status, political affiliation, and/or familial status in employment, housing, and public accommodations.

15 Types of Discrimination Disparate Treatment Occurs when an employer treats some people less favorable than others because they are members of a protected category. Requires proof of discriminatory intent Disparate Impact Occurs when an employer s s practice is facially neutral but, in fact, falls more harshly on one group than another.

16 Recognizing Illegal Harassment Harassment is a form of discrimination. Can Can be based on any protected class, not just sex.

17 Recognizing Illegal Harassment Harassment is unwelcome conduct based on a protected category that is offensive to a reasonable person and affects the terms and conditions of the employee s s work. This includes: Verbal conduct - such as jokes and pranks that are hostile or demeaning to a protected class; Written materials such as posters or calendars, s e or web sites; Physical contact such as patting, pinching, or brushing against another s s body. Under the hostile work environment theory, to affect the terms and conditions of the employment, the harassment must be sufficiently severe and pervasive to create an abusive working environment.

18 Who Can Harass? Supervisors and Subordinates Co-workers including same sex co-workers Non-employees Clients / Customers Vendors Delivery persons Independent Contractors

19 Defenses to Discrimination and Harassment Claims Farragher and Ellerth Defenses: Policy in place and communicated to employees; Prompt, appropriate investigation; Prompt remedial action when appropriate.

20 Policies and Procedures Develop and Issue a Policy Statement Prohibiting Discrimination, Harassment and Retaliation Establish a Formal Complaint Procedure Educate Employees, Supervisors and Managers as to the anti-discrimination, anti-harassment, and anti- retaliation policy and the formal complaint procedure Train Employees, Supervisors and Managers to: recognize what behavior constitutes discrimination and harassment; and what to do if it is reported to them or it is observed by them.

21 Prompt Investigation An important element is establishing a defense is a prompt and thorough investigation of any claims of discrimination, harassment or retaliation. The investigation should be done as soon as possible after the discrimination, harassment or retaliation has come to the attention of the employer. The investigator should be someone who will remain impartial, objective and fair throughout the investigation. Must interview the complaining employee, the accused employee and any witnesses and should obtain written statements from each. If possible, the complaining employee and accused employee should be separated pending the outcome of the investigation.

22 Remedial Action What constitutes a reasonable and appropriate action is dependent on the specific facts of each situation. The employer must treat similar situations in a similar fashion. The results of the investigation and action taken, if any, should be communicated to the complaining employee.

23 No Retaliation It is also prohibited for an employer to discriminate against any of its employees because he/she has opposed an unlawful employment practice, or because he/she has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under Title VII, including internal, in-house investigations.

24 A Family Affair: The FMLA, ADA, Worker s Compensation and PTO By: Lorraine O Hanlon Rogers

25 The Bermuda Quadrangle

26 Step 1: Determining Which Laws Apply A. IS THE EMPLOYER COVERED BY THE STATUTE? ADA The ADA applies to private employers with 15 or more employees. State and local government units are covered regardless of their size. FMLA The FMLA applies to employers who employ 50 or more employees. Again, state and local government units are covered regardless of their size. WC Workers compensation laws generally apply to all employers that have at least one employee.

27 B. IS THE EMPLOYEE COVERED BY THE STATUTE? ADA The employee must be a qualified individual with a disability and must be able to perform the essential functions of his/her job with or without reasonable accommodation. FMLA The employee must have: worked for the employer for at least 12 months (which does not have to be consecutive); worked at least 1250 hours during the 12 months prior to the leave; and worked at a worksite where at least 50 or more employees are employed by the employer within 75 miles of the worksite. WC All employees are eligible.

28 C. IS THE EMPLOYEE S S HEALTH CONDITION COVERED BY THE STATUTE? ADA An individual has a disability if he or she: has a physical or mental impairment that substantially limits a major life activity; has a record of such an impairment; or is regarded as having such an impairment. FMLA The employee is entitled to leave for: the birth of child or care of a newborn; the placement of a child with the employee for adoption or foster care; to care for the employee s spouse, child or parent who has a serious health condition; or due to the employee s own serious health condition. WC The employee is entitled to benefits for a work related injury that arose out of and was within the course of employment.

29 Step 2: Analysis and Application of the Law Once it is determined that an employee is eligible for leave under one or more statutes, an employer must then analyze each statute independently to assess which law provides the most protection. If an employee is covered under two or more statutes, the employer must provide leave under whichever statutory provision provides the greater benefits for the employee. FMLA ADA WC PTO

30 A. DURATION OF LEAVE ADA An employer is not specifically required to grant an eligible employee a leave of absence, but Courts have interpreted the statute to include leave as a possible reasonable accommodation which may extend beyond the 12 weeks allowed under the FLMA, unless such leave would be an undue hardship on the employer. FMLA The FMLA requires 12 weeks of unpaid time off in a 12-month period. Before designating such time as FMLA leave the employer must give notice to the employee that it will be counted against the 12-week entitlement. WC There is no time limit on worker s compensation leave. An employee can be on leave until such time as the employee has reached maximum medical improvement or the employee is able to perform other suitable work. NOTE: Leave granted as a reasonable accommodation under the ADA and leave granted under WC may run concurrently with FMLA leave.

31 B. EMPLOYEE BENEFITS ADA The ADA does not require the employer to maintain health and other benefits for employees while on leave unless failure to do so would be discriminatory. FMLA The FMLA requires the employer to maintain the employee s group health benefits at the same level and manner as when leave began, but can require that the employee pay for such benefits. WC Under the workers compensation statute continuation of health and other benefits is the discretion of the employer.

32 C. JOB RESTORATION ADA If leave is provided as an accommodation, reinstatement to the employee s former position is only required if the employee is qualified to perform the essential functions of the job with or without reasonable accommodations. Reinstatement is not required if it would pose an undue hardship on the employer. FMLA The employee must be returned to either same position or to an equivalent position with equivalent pay, benefits and other terms and conditions of employment. Reinstatement can only be denied under the FMLA when: The employer can show the job was eliminated; The employee is a highly compensated employee whose reinstatement was denied to prevent substantial and grievous economic injury to the company; and If the employee is unable to perform the essential functions of the job. (Note that the employee s inability to perform the essential functions of job triggers an ADA analysis and an analysis of whether an accommodation is required). WC An employee is not entitled to be reinstated to their former position only entitled to suitable work which may include light duty.

33 D. FITNESS FOR DUTY ADA An employer may require a fitness-for-duty certification from an employee returning to work from disability leave under the ADA. FMLA An employer may require a fitness-for-duty certification from an employee returning from FMLA leave certifying that the employee is able to return to work only if the leave was taken due to the employee s own serious health condition. WC An employer may require a fitness-for-duty certification from an employee returning to workers compensation leave. Exams such as IMEs are generally used to determine whether the employee is entitled to additional benefits or has reached medical maximum improvement.

34 E. PAID TIME OFF ADA A leave of absence under the ADA will generally be unpaid, unless the employer pays during other types of leave. FMLA An employer may require that an employee s paid time off whether it be accrued vacation, personal or sick days, run concurrently with any FMLA leave. This prevents stacking time and avoids a situation where the employee is entitled to 12 weeks of FMLA unpaid leave and, for example, 2 additional weeks of paid vacation. In the case of sick leave, an employer does not have to allow the use of such paid leave in any situation where its uniform policy does not allow it. For example an employee can only use sick leave to care for an ill family member if the employer s leave plan permits it. If an Employer gives more favorable leave options than the FMLA, the more favorable options will govern. WC If the employee is on leave pursuant to the WC statute, the employer cannot compel the employee to use any paid vacation or other leave. However, such leave can be counted against the employee s FMLA entitlement if it has been properly designated as such at the outset.

35 New Developments in the Law Regarding Employee Leave Florida s new law providing leave for victims of domestic violence Effective July 1, 2007, Florida Statute provides leave for employees who are victims of domestic violence and prohibits employers from retaliating against an employee for exercising this right. Applies only to businesses with 50 or more employees and is limited to three days within 12-month period. Employees are required to use all annual leave available before using the leave provided under the statute unless this requirement is waived by the employer. It is up to the discretion of the employer whether or not this leave will be paid. Leave can only be sought to: seek an injunction for protection against domestic violence; obtain medical care or mental health counseling; obtain services from a victim-services organization; make the employee s home secure or find new housing; seek legal assistance to address issues act of domestic violence; attend court-related proceedings arising from the act of domestic violence.

36 An Ounce of Prevention For What Can Assail You By: Kerry A. Raleigh

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47 Employment Law Seminar May 15, 2008 Palm Beach Gardens Marriott (561) Lorraine O Hanlon Rogers Kerry A. Raleigh