LEGAL ISSUES FOR SUPERVISORS. UW-Green Bay Office of Legal Counsel & Office of Human Resources

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1 LEGAL ISSUES FOR SUPERVISORS UW-Green Bay Office of Legal Counsel & Office of Human Resources

2 Why Training? Provide you with a basic understanding of the laws that effect you and your employees. You may often have direct knowledge of employee situation. You are the first point of contact when employees have questions. Courts and/or government agencies have increasingly held front-line supervisors responsible for knowing the law.

3 Why Training (cont.) UW-Green Bay has policies in place to address most, if not all, of these topics. Communication of these policies and their implications is CRITICAL. Training is the best way to ensure our policies are more than just pieces of paper. Training also reduces grievances and/or legal challenges/lawsuits.

4 Training Objectives Ensure supervisors receive knowledge and skills for effective day-to-day decision making and action. Ensure laws and campus policies are uniformly applied across departments and units. Prevent or limit University legal and financial risk. Promote positive employee relations.

5 Training Objectives Not designed to make you a lawyer or HR professionals (WE NEED OUR JOBS)!!! Allow you to issue spot and identify appropriate campus resources to assist you in resolving problems.

6 TOP 10 LEGAL MISTAKES BY SUPERVISORS Mistake #1: Mishandling Employee Complaint Issues. Mistake #2: Failing To Apply Policies, Procedures And Employee Discipline Consistently. Mistake #3: Failure To Give Constant Feedback (Good And Bad) To Employees And Failure To Document Problems. Mistake #4: Failing To Conduct Honest & Effective Performance Reviews. Mistake #5: Failing To Understand & Follow The Ever-changing Wage & Hour Laws.

7 TOP 10 LEGAL MISTAKES BY SUPERVISORS Mistake #6: Creating A Perception Of Retaliation. Mistake #7: Failing To Manage And Resolve Conflict Before It Escalates Into Workplace Violence Or Litigation. Mistake #8: Failing To Promptly Respond To Leave And Accommodation Requests. Mistake #9: Carelessly Using . Mistake #10: Failing To Keep Good Records.

8 The Legal Laundry List Family Medical Leave Act (FMLA) American with Disabilities Act (ADA) Fair Labor Standards Act (FLSA) Worker s Compensation (WC) Sexual and Discriminatory Harassment Workplace Violence Consensual Relationships Employment Discrimination Affirmative Action and EEO

9 Principles For Dealing With Potential Legal Issues (The 7 C s) Concern Conform Consistent Consult Commit Court (You're) Covered

10 Common Scenario # 1 Employee calls in Monday a.m. indicating that she is not feeling well and needs to go to the doctor. After the doctor s visit, the employee is diagnosed with the flu, prescribed medication for a secondary infection and incapacitated for 4 days. Employee has no remaining sick or vacation time. Is the employee eligible for FLMA leave?

11 Family Medical Leave Act (FMLA) Designed to allow an employee to stay home and recover. Provides eligible employee with the right to take unpaid leave: to care for infant or adopted child; to care for a family member with a serious health condition; to seek treatment for the employee s serious health condition.

12 What Is A Serious Health Condition? Serious health condition is defined as injury/illness requiring inpatient care or outpatient care that requires continuing treatment or supervision by a health care provider. Continuing treatment normally requires: incapacitation of 3 days or more (i.e. can t work); pregnancy; chronic serious health conditions. Does not apply to short term common illness, stress or voluntary surgery.

13 FMLA Practice Points Law contains eligibility guidelines for employees based upon number of hours worked. Time clock is different for classified and unclassified staff (calendar vs. fiscal year). Employer can require certification from medical care provider. Leave may be intermittent except for child birth/adoption.

14 FMLA Practice Points (cont.) Employee must provide reasonable notice to employer of leave, when possible. FMLA leave should be counted concurrently with other leave time (medical/worker s comp/ada). Employer must designate the leave as FMLA to prevent double dipping even if the employee does not request the designation. Employee has right to return to same or equivalent position.

15 Common Scenario # 2 John Smith has been a model employee for the University 10 years. He is well liked by co-workers, and is friendly and easy going. John recently missed 4 days of work because he was sick. When he returned to work he requested 3 weeks off, telling his supervisor that he is tired and anxious. Is this a valid request for FMLA leave?

16 More Alphabet Soup..

17 Americans with Disabilities Act (ADA) Federal law that prohibits discrimination against qualified individuals with disabilities in all conditions of employment. A disability is defined as a physical or mental impairment that substantially limits one or more of the person's major life activities, a history of such impairment, or being regarded as having such impairment. Prohibits an employer from retaliating against an employee that exercises ADA rights.

18 Why The ADA? The ADA is intended to level the playing field for employees with disabilities. Qualified employees must be afforded the same opportunities to succeed. Reasonable accommodations must be made to allow individuals to participate equally, unless it would impose an undue hardship on the institution.

19 Qualified Individuals A person who meets the legitimate skill, experience, education or other requirements of a position that he or she holds or seeks and who can perform the essential functions of the position with or without reasonable accommodation. A person is not qualified if he or she poses a significant risk to the health or safety to himself, herself or others and if the employer cannot eliminate that risk by reasonable accommodation.

20 Reasonable Accommodations Changes or adjustments to the job or work environment that may include: acquiring or modifying equipment or devices; job restructuring; part-time or modified work schedules; reassignment to vacant positions; adjusting examinations, training materials, or policies; providing readers and interpreters; making the workplace readily accessible and usable by people with disabilities.

21 Reasonable Accommodation Any modification to a job, to the process of applying for the job or to the work place that will enable a qualified individual with a disability to apply for a job, perform the essential functions of the job or enjoy the same benefits and privileges that nondisabled employees enjoy, Cannot act as an undue financial or administrative hardship on the employer. A person is not considered unqualified because he or she cannot perform marginal or incidental functions. For example, a person who is hired as a typist is not unqualified because he or she cannot, with or without a reasonable accommodation, deliver interdepartmental mail.

22 ADA Practice Points It is illegal to fail to provide a reasonable accommodation unless it presents an undue hardship. Employer and employee must participate in the interactive process to find the most reasonable accommodation. Human Resources can work with the supervisor and applicant/employee to help identify a mutually satisfactory accommodation. ADA contains strict confidentiality requirements. It is the responsibility of the employee to request an accommodation (in general terms).

23 Common Scenario # 3 Mary, who is an avid gardener, complains that her typing is getting slower because she is having a lot of pain in her wrist and may have developed a repetitive motion injury. If she has surgery, is she entitled to time off under the Family Medical Leave Act (FMLA)? Are you required to make any reasonable accommodation under the Americans with Disabilities Act (ADA)? Would she be eligible for Worker s Compensation benefits?

24 Worker s Compensation Designed to allow an employee to stay home and recover. Pay salary and benefits to employees that suffer an illness or injury at work and arising out of and in the course of employment. Employee must promptly notify the employer of the injury.

25 WORKER S COMPENSATION Once an employee advises you of an injury, or you become aware of an injury, it is your responsibility to complete and file the WKC-12 form immediately with your campus worker s compensation coordinator (Jan Hess). Practice requires the employee to complete the Employee s Work Injury and Illness Report, by Statute it is the employer s responsibility to report and file the WKC-12, First Report of Injury. Do not wait for the employee to complete their report before you complete the WCK-12.

26 Why Can t We All Just Get Along?

27 Common Scenario # 4 While at work, Janet frequently makes personal phone calls to her friends. Her conversations are loud and generously sprinkled with foul and obscene language. Her co-workers in nearby cubicles cannot help but overhear her conversations. Can Janet's behavior be interpreted as sexually harassing to her co-workers?

28 SEXUAL HARASSMENT There are two basic theories of sexual harassment: quid pro quo (i.e., employment benefits conditioned upon sexual conduct); and hostile work environment. Under both theories if the conduct is unwelcome and has a demonstrated effect on the employee's conditions of employment, it may constitute unlawful sexual harassment.

29 Quid Pro Quo Sexual Harassment Involves situations in which a supervisor exploits his or her authority to exact sexual favors from a subordinate. Quid pro quo sexual harassment occurs when submission to or rejection of such conduct is used as the basis for employment decisions affecting that individual.

30 Hostile Work Environment Employee is required to work in an environment that unreasonably interferes with his or her work performance. Conduct must be sufficiently severe and pervasive to create an intimidating, hostile, or offensive work environment. Conduct need not be sexual in nature to constitute harassment. Any unwelcome conduct directed at a person because of his or her gender can constitute actionable harassment. The law also recognizes a cause of action for same-sex harassment.

31 Liability for SH Institution may be held legally accountable for SH carried out be supervisors or by an employee s co-workers. Employer must respond in a timely fashion to all reported instances of SH. Employer is presumed liable if they fail to respond.

32 Sexual Harassment Prevention Practice Points Know the University s sexual harassment policy. Be a role model for your staff. Identify potential problems and address them promptly. Create an open door policy where people feel comfortable confiding in you. Maintain confidentiality to the extent possible. Take action on all complaints even if recipient asks you not to.

33 Supervisor s responsibility It is your responsibility to take action if you know, or should have known, about questionable behavior in your workplace - even if an employee does not complain to you about sexual harassment.

34 Other Discriminatory Harassment The same general principles (such as unwelcomeness, severe or pervasive, hostile environment) that you have learned constitute sexual harassment also apply to other forms of harassment except that the harassment is based on a protected characteristic other than sex.

35 Other Discriminatory Harassment Essentially, conduct that constitutes these other forms of harassment is any verbal, visual, or physical conduct that belittles, mocks or shows hostility toward an individual because of another characteristic protected by law (such as race, color, religion, national origin, age and disability among others) of that individual or of his or her relatives, friends or associates, and that:: has the purpose or effect of creating an intimidating, hostile, or offensive work environment, or unreasonably interfering with an individual's work performance; or otherwise adversely affects an individual's employment opportunities.

36 Wisconsin Fair Employment Law Wisconsin Fair Employment Law Prohibit employment discrimination based upon age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, membership in the national guard, state defense force or any reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours. Retaliation cases on the rise.

37 Wage and Hour Issues

38 Fair Labor Standards Act (FLSA) Prescribes standards for the basic minimum wage and overtime pay. Requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-onehalf-times the regular rate of pay. The Department of Labor may recover back wages, either administratively or through court action, for the employees that have been underpaid in violation of the law. Violations may result in civil or criminal action.

39 Common Scenario #4 Your department is going through a budget crisis. You specifically tell your staff no overtime. However, you learn despite your instructions, Lisa has been working through her lunch and her time card shows she has worked 45 hours this week. Do you have to pay her overtime?

40 FLSA Practice Points FLSA overtime rules apply to hours worked not hours paid. Sick leave, vacation time, holidays, jury duty, etc., are not considered as part of the 40-hour base toward which overtime is calculated. You may require employees to obtain permission to work overtime. If they fail to obtain permission, you may refuse.

41 More FLSA. FLSA will require overtime for non-exempt employees if you allow, suffer or permit them to work overtime. You can unintentionally change an employee s status by treating them as nonexempt when they are exempt.

42 Common Scenario # 5 Robert, an exempt employee in your office, has taken on some new responsibilities in your department. For the past month, he has been coming in early and worked one weekend to get a large project done. Monday a.m. he calls you to say he is taking a few days off each day due to all the overtime he has been putting in. Should Robert be required to use accrued leave time for his time off?

43 Other Legal Issues You May Encounter Copyright and Intellectual Property Ethics Issues classified and unclassified employees FERPA student records Open Meetings/Public Records Contracts Tenure/Merit/Performance Evaluation Hiring/Background/Reference Checks Subpoenas

44 And The List Goes On. Confidentiality HIPPA Workplace Violence Wisconsin Fair Employment Law

45 How Do You Navigate The Maze? Federal Law State Law/Administrative Rules Case Law and Other Court Rulings Board of Regents Policy/Rules UW System Policy Campus Policy/Local History Faculty/Academic Staff Governance Documents

46 Use All Available Campus Human Resources Legal Counsel Public Safety Secretary of the Faculty and Academic Staff Regent, System and Campus policy documents WHEN IN DOUBT CALL SOMEONE!!

47 Questions It s impossible for a man to learn what he thinks he already knows