1. Basics of Employment Law
January 18, 2018

2. Presented By Terrence Murphy Mark Phillis Shareholder Pittsburgh, PA
Shareholder
Pittsburgh, PA

3. Just a Few of the Laws That Apply to Employment:
Title VII
Americans With Disabilities Act (ADA)
Fair Labor Standards Act (FLSA)
Family Medical Leave Act (FMLA)
Pregnancy Discrimination Act (PDA)
Age Discrimination in Employment (ADEA)
Fair Credit Reporting Act
Equal Pay Act

4. Just a Few of the Laws That Apply to Employment (cont’d.):
Uniformed Services Employment and Re-employment Rights (USERRA)
ERISA
Occupational Health and Safety Act (OSHA)
COBRA
HIPAA
Pennsylvania Minimum Wage Act
Pennsylvania Human Relations Act
Pennsylvania Unemployment Compensation Act

5. At-Will Employment Pennsylvania is an “at-will employment” state:
“…as a general rule, employees are at-will, absent a contract, and may be terminated at any time for any reason or for no reason.”

6. At-Will Employment (cont'd.)
Written Contract
A contract is almost the only way to prove that an employer has restricted the ability to terminate an employee at will.
Even without an express contract, if the employer has used particular procedures or standards in the past terminations of others, it might face liability if it doesn’t follow them in the future.
Employee handbook generally is not enough to support a “contract” argument.

7. Employee Handbooks Critical Employee Handbook Provisions Welcome
At-will statement
Right to revise
EEO statement
Anti-harassment policy
ADA commitment to reasonable accommodation and interactive process
Leave-of-absence and FMLA

8. Employee Handbooks (cont'd.)
Other provisions/policies:
Discipline
Conflict-of-interest
Whistleblower
Open door
Employee grievance/reporting
Immigration law compliance
Benefits descriptions and disclaimers
Electronic equipment usage and communications

9. Employee Handbooks - NLRB
The Boeing Co. (12/14/17) (Vote: 3-2)
Lutheran Heritage Village-Livonia reversed: overturns 2004 decision stating that an employer policy is illegal if employees could “reasonably construe” it to bar them from exercising their rights under NLRA

10. Joint Employer - NLRB
Hy-Brand Industrial Contractors Ltd. (12/14/17) (Vote: 3-2)
Browning-Ferris Industries reversed: return to “direct and immediate control” standard to determine joint-employer status

11. Fair Labor Standards Act (FLSA)
Federal law setting minimum wages and 40-hours overtime standard for “covered” employers and employees.
What Does FLSA Provide?
Federal Minimum Wage: $7.25/hour
Overtime: 1-1/2 times the regular rate of pay for all hours worked over 40 in a workweek

12. FLSA (cont’d.)
Exempt v. nonexempt status has become one of the most litigated issues in federal courts.
The FLSA has approximately 30 separate exemptions from minimum wage and/or overtime requirements
Exempt status generally involves complex, case-by-case, analysis.

13. FLSA (cont’d.) News from the “swamp” (a/k/a DOL Washington)
New rulemaking process on all aspects of overtime rules including new definition of exempt salary level
Reissuance of withdrawn opinion letters
Change in intern test

14. FMLA Family Medical Military
Serious health condition of parent, spouse or child
Birth, adoption, foster care placement
Medical
Serious health condition
Military
“Qualifying exigency” leave
Caregiver, for serious injuries or illness

15. FMLA (cont’d.) 12 weeks Reinstatement Health care benefits
Job-protected leave
Intermittent (for serious health condition) or in a single block of time
Reinstatement
Same or equivalent position
Health care benefits
Same as if not on leave

16. FMLA Issues – Intermittent Leave
Can an employer restrict intermittent/reduced- schedule leave?
If planned medical treatment, employer can require employee to give “reasonable effort” to avoid disruption to operations (29 CFR § )
Can employer provide alternative position?
If it is for planned medical treatment, then:
Equivalent pay and benefits and must better accommodate employee’s leave schedule; and
Cannot be used to discourage leave or retaliate for taking leave (29 CFR § )

17. Certification Process
Certification must be “complete and sufficient”
First step:
Send Designation Notice explaining specific portions that are incomplete or unclear
Provide time limit (e.g., seven days) unless not practicable despite employee’s “diligent good-faith efforts”
Second step:
Option to seek authorization to speak to medical provider regarding clarification
Be suspicious of medical-provider claims of inability to estimate duration and/or frequency

18. EEO Fundamentals Three main types of prohibited conduct:
Discrimination
Harassment
Retaliation

19. Discrimination
Discrimination – generally unlawful to refuse to hire, to fire, or to treat differently in compensation or work conditions based on a protected classification:
Race, color, national origin, gender, disability, age, religion, etc.
Disparate treatment vs. disparate impact
Defense to disparate treatment: legitimate non-discriminatory business reasons

20. Employment Harassment
Harassment – forget the dictionary definition
Harassment is prohibited conduct distinct from hiring and firing decisions
Two types of harassment:
Quid quo pro (sexual harassment)
Hostile work environment

21. “Quid Quo Pro” Sexual Harassment
Unwelcome sexual advances, requests, or conduct where submission to the conduct is used as the basis for an “employment decision” or is explicitly or implicitly made a condition of employment
Forced to choose between submission to sexual advances and employment benefits

22. Hostile Work Environment
Looks to the general atmosphere of the workplace, such as verbal and/or physical conduct that “unreasonably interferes with an individual’s work or performance” or creates an “intimidating, hostile, or offensive working environment.”
This theory is not just restricted to “sexual” or gender based harassment. Possible to have a hostile work environment based upon race, age, disability, etc
“not a general civility code”

23. Hostile Work Environment (cont'd.)
Must prove “severe or pervasive” conduct
Reasonable person standard – would the conduct substantially affect the work environment of a reasonable person?
Not the “hyper-sensitive person” standard . . .
But it is the reasonable person view from the victim’s perspective:
Example: only woman in an all male office may find something offensive that her male co-workers believe to be fine

24. Hostile Work Environment (cont'd.)
Factors in the severe or pervasive determination:
frequency of the conduct;
severity of the conduct;
whether or not the conduct is physically threatening or humiliating;
whether or not the conduct interferes with the employee’s job performance;
the context in which the conduct occurs; and
the totality of the circumstances.

25. Retaliation
Retaliation – when an employer takes an adverse employment action against a covered individual because he or she engaged in a protected activity
Covered Individual – people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex religion, national origin, age, or disability

26. Retaliation (cont'd.)
Adverse Employment Action – can take many forms, and can include:
employment actions like discharge, demotion or denial of promotion;
other actions that are not ultimate employment actions, like a lateral transfer, an unjustified negative evaluation or a negative reference because they may dissuade an employee from making or supporting a charge of discrimination; but
not petty slights and annoyances, like stray negative comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments justified by an employee’s poor work performance or history.

27. Title VII – The Civil Rights Act of 1964
Basic Source for Modern Employment Law
Applies to all employers with 15 or more employees
Prohibits discrimination and harassment based on race, color, national origin, gender or religion
In 1964, this was all about race, gender was an afterthought

28. Title VII (cont'd.) Exhaustion of Administrative Remedies
Must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 300 days, because Pennsylvania law also prohibits the conduct
PA law: must file a complaint with the Pennsylvania Human Relations Commission within 180 days if you want to sue under state law
EEOC has a form – check the boxes

29. Title VII (cont'd.)
EEOC may investigate your claim, but the extent of investigation will depend on the allegations
Must file Title VII suit in federal court within 90 days of receiving the “right-to-sue” letter

30. Title VII Remedies
If a Title VII plaintiff prevails in court, the plaintiff may recover damages for:
Lost pay, promotions
Mental anguish
Attorneys’ fees and costs (e.g., expert and court)
The court may also require the employee be hired, promoted, or reinstated
If the conduct was intentional, or if the employer acted with malice or reckless indifference, the court may also award punitive damages

31. Age Discrimination in Employment Act (ADEA)
May not discriminate against employees on the basis of age (40 and over).
Covers employers with 20+ employees for each working day for 20 weeks in current or preceding year
Bona Fide Occupational Qualifications
Law recognizes that with age some physical abilities are diminished – allows mandatory retirement ages for certain occupations such as pilots, law enforcement, firefighters, etc.
Generally uses Title VII standards and procedures

32. Americans With Disabilities Act (ADA)
Protects “qualified individual with a disability” from discrimination
An individual with a disability is a person who:
Has a physical or mental impairment that substantially limits one or more major life activities;
Has a record of such an impairment; or
Is regarded as having such an impairment

33. Americans With Disabilities Act (ADA) (cont’d.)
Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, working, sitting, standing, lifting, sleeping, thinking or concentrating, interacting with others, etc.
Temporary, non-chronic conditions are not disabilities
The question of who is “disabled” under the law requires a case-by-case analysis

34. ADA (cont'd.)
“Qualified individual with a disability” is a person who meets the fundamental qualifications of the job, and can perform the job with or without reasonable accommodations
Reasonable accommodations may include, but are not limited to:
Making existing facilities used by employees readily accessible to and usable by persons with disabilities
Job restructuring, modifying work schedules, reassignment to a vacant position;
Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters

35. ADA (cont'd.) There are limits as to what is reasonable:
An employer is not required to lower quality or production standards to make an accommodation;
Not obligated to provide personal use items such as glasses or hearing aids;
Not required to appoint the disabled person to a new job that does not exist

36. ADA (cont'd.)
An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business
Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation

37. Enforceable Releases General tips for drafting an enforceable release:
Use plain language.
Specifically identify the claims being released (e.g., Title VII, ADEA, State).
Allow employee time to review before signing.
Offer greater compensation than employee would otherwise be entitled to.
Comply with the OWBPA for employees over 40.

38. Enforceable Releases (cont’d.)
You CANNOT Release
Right to file charge with EEOC
Right to file charge with NLRB
Right to file claims for unemployment
Right to file claims for workers’ compensation
Right to file claims under FLSA
Right to vested benefits under ERISA
Right to collect from the government

39. Enforceable Releases & the OWBPA
Drafting Considerations:
Advise to consult an attorney
21-day/45-day (group) consideration periods can be waived
7-day revocation period cannot be shortened (NOTE: In Minnesota, 15-day revocation period for state law claims)
Group terminations require disclosure of the ages and positions considered and either eligible or ineligible for severance as part of the group termination or exit incentive program.

40. Top 10 Basics of Employment Law for Legal Dept.:
Have and follow a policy against discrimination and harassment.
Conduct training on your policy – in some states, it’s the law.
Under the ADA, engage in the interactive process.
Be aware of benefits issues/complications when offering a separation agreement.
Make sure your separation agreements are valid.

41. Top 10 Basics of Employment Law for Legal Dept.: (cont'd.)
Ensure good communication with respect to leave under the FMLA.
Be careful when FMLA leave is over and an employee still needs medical leave.
Don’t punish employees by taking away wages owed.
Make sure you have written commission agreements with your salespeople.
Preserve computer hard drives when a problem employee leaves.