8 Myths About Employment Law Debunked

Transcription

1 Association of Indiana Counties 8 Myths About Employment Law Debunked Speaker Tim Drury Bliss McKnight

2 AIC Institute Class Myths About Employment Law Debunked Speaker Tim Drury Bliss McKnight

3 THE PROBLEM So many tricks, so many traps... and so few resources to keep up with them all. Employment laws: ADA ADEA Title V!! FMLA FSLA

4 THE PROBLEM Employment laws expand or change. ADA became the ADAAA FMLA expanded benefits.

5 THE PROBLEM Even large and sophisticated private companies often hold some profoundly wrong and dangerous misconceptions about employment law Small- to medium-sized outfits like your typical municipal government at even greater risk

6 MYTH NO. 1 This is an at-will employment state, so we can fire anyone we want, for any reason we want.

7 MYTH NO. 1 (AT-WILL EMPLOYMENT) Yes, Indiana is an at-will employment state. But what does that mean? It means: you can terminate someone for any reason you want, so long as the reason is not specifically illegal (like discrimination). It does not mean employers can do whatever they please.

8 MYTH NO. 1 (AT-WILL EMPLOYMENT) So you got elected now what? The lesson: Good, provable, concrete reason Documentation

9 MYTH NO. 2 This employee is still in his probationary period at the beginning of employment. Let s just fire him.

10 MYTH NO. 2 (PROBATIONARY PERIOD) Why have a probationary or introductory period?

11 MYTH NO. 2 (PROBATIONARY PERIOD) Example: All new and re-hired employees will work on an introductory basis for the first 90 calendar days after their date of hire. The Introductory Period is intended to give new employees the opportunity to demonstrate their ability to achieve a satisfactory level of performance and to determine whether the position meets their expectations. The Company uses this period to evaluate employee capabilities, work habits, and overall performance.

12 MYTH NO. 2 (PROBATIONARY PERIOD) So, what s the benefit? At best, this is superfluous And what s the harm?

13 MYTH NO. 2 (PROBATIONARY PERIOD) Misleads employees Misleads supervisors The lesson: scrap it!

14 MYTH NO. 3 In order to have a safer work environment, we have random drug testing for all employees.

15 MYTH NO. 3 (RANDOM DRUG TESTING) There is a difference between public and private sector employees. Random drug testing for all employees is prohibited. Random drug testing for employees in safety sensitive positions can be supported.

16 MYTH NO. 4 I think our personnel policy has been reviewed some time ago. There s nothing in there that will trip us up.

17 MYTH NO. 4 (PERSONNEL POLICY) Personnel Policies Could do an entire program on them. Is your first line of defense. This is THE document that can help or hurt you in an employment practice claim.

18 MYTH NO. 4 (PERSONNEL POLICIES) Example: The county that couldn t fire.

19 MYTH NO. 4 (PERSONNEL POLICIES) Example: The county that couldn t fire. All employees have a right to appeal a termination notice to the Grievance Committee.

20 MYTH NO. 4 (PERSONNEL POLICIES) Employee Handbooks: Self Audit Does your employee handbook clearly state that it is not to be considered a contract in any way and that you reserve the right to change it? If your handbook lists offenses warranting discipline, including discharge, does it make clear that those listed are merely illustrative rather than exhaustive?

21 MYTH NO. 4 (PERSONNEL POLICIES) Employee Handbooks: Self Audit Do all employees receive copies of the handbook each time it is revised? Do you have a receipt form that employees sign when they receive the handbook or any revisions of it? Is your handbook up-to-date in all areas?

22 MYTH NO. 4 (PERSONNEL POLICIES) Employee Handbooks: Self Audit Does your attorney review your handbook regularly to see that it contains nothing in conflict with federal and state laws or local regulations? Is it written clearly and simply?

23 MYTH NO. 5 Anyone can do the interview. Nothing can go wrong there.

24 MYTH NO. 5 (INTERVIEWING) The commissioner and the qualified applicant.

25 MYTH NO. 5 (INTERVIEWING) ANYONE who interviews should have be familiar with legal questions. How to ask legal interview questions.

26 MYTH NO. 6 Someday we will have job descriptions for all jobs. We don t really need them anyway. Its not a high priority.

27 MYTH NO. 6 (JOB DESCRIPTIONS) Job descriptions set clear expectations for your employees. They help you cover legal bases. Help in defending employment claims.

28 MYTH NO. 6 (JOB DESCRIPTIONS) Job descriptions and the ADA: The snoring deputy.

29 MYTH NO. 6 (JOB DESCRIPTIONS) Job descriptions resources

30 MYTH NO. 7 Training on harassment and discrimination only increases the chances our employees will sue us.

31 MYTH NO. 7 (TRAINING) Training can make the workplace more enjoyable for all employees. It can help employees understand your policies as well as the legal requirements.

32 MYTH NO. 7 (TRAINING) Training can be the difference between losing a lawsuit and winning it. Affirmative defense.

33 MYTH NO. 8 We don t need to take this complaint of harassment seriously because...

34 MYTH NO. 8a (DUCKING COMPLAINTS)... we heard it from a third party, not from the victim. If it was really serious, the victim would complain herself. It doesn t matter what the source of your knowledge is. If you, the employer (meaning any manager) knows, then it knows. And if it knows, it s obligated to act.

35 MYTH NO. 8b (DUCKING HARASSMENT)... the victim, or witness, begged us not to take any action and swore us to secrecy. We cannot abide by these requests as much as we want to and as much as it feels wrong not to.

36 MYTH NO. 8b (DUCKING HARASSMENT) Even if the victim utterly refuses to cooperate, we must do the best investigation we can. Her refusal may blunt the company s liability, but only if you try to remedy the situation anyway.

37 MYTH NO. 8c (DUCKING HARASSMENT)... the employee made the complaint at the moment we disciplined or suspended/terminated her. It doesn t matter. Still must investigate and remedy. Employee A can still sue us, and we need to prepare our defense.

38 MYTH NO. 8c (DUCKING HARASSMENT) We could be very exposed to Employee B s complaint six months from now. The lesson: Avoid excuses. Always investigate and remedy.

39 BONUS SPEED ROUND! We use temp employees to insulate ourselves from liability. Instead of telling this employee we re firing her for terrible job performance, let s spare her feelings and say that it s because of the economy.

40 BONUS SPEED ROUND! I left all the employee s problems out of his performance review because I wanted to motivate him, not demoralize him. We don t have any FMLA issues we ve never had anyone out on FMLA.

41 Thank You! 41